Order Code RL34205
Federal Indian Education Programs:
Background and Issues
October 9, 2007
Roger Walke
Specialist in American Indian Policy
Domestic Social Policy Division
Federal Indian Education Programs:
Background and Issues
Summary
The federal government provides elementary and secondary education and
educational assistance to Indian children, either directly through federally-funded
schools or indirectly through educational assistance to public schools. Direct
education is provided by the Bureau of Indian Education (BIE) in the U.S.
Department of the Interior, through elementary and secondary schools funded by the
BIE. Educational assistance to public schools is provided chiefly through programs
of the U.S. Department of Education (ED). The student population served by federal
Indian education programs consists of members (or descendants of members) of
Indian tribes, not Indians identified by race. Most of this Indian education population
attend public schools. Most federal data on Indian students are based on race,
however, which complicates analysis of results for the population served by federal
Indian education programs.
BIE was originally part of the Bureau of Indian Affairs (BIA) in the Interior
Department. The BIA began the current system of direct Indian education in the
decades following the Civil War, with congressional approval and funding. The
system developed gradually to its current structure. In the late nineteenth century, the
BIA began placing a few students in public schools, a trend that accelerated after
about 1910. At present 90% or more of the student population served by federal
Indian education programs attend public schools.
The BIE-funded education system for Indian students includes 170 schools (and
14 “peripheral dormitories” for students attending public schools nearby). Schools
and dorms may be operated by BIE itself or by tribes and tribal organizations. A
number of BIE programs provide funding and services, supplemented by set-asides
for BIE schools from ED programs. Federal funding for Indian students in public
schools flows to school districts chiefly through ED programs, with a small addition
from a BIE program. BIE and public schools are subject to the standards and
accountability provisions in the No Child Left Behind Act (NCLBA, P.L. 107-110),
although not all such provisions apply to BIE schools.
Significant authorizing legislation for BIE and ED programs, most recently
reauthorized in P.L. 107-110, are up for reauthorization in the 110th Congress.
Among the issues raised by Indian education proponents are the current
reorganization of BIE, flexibility in the application of NCLBA provisions to BIE
schools, a greater role for Indian culture and languages in Indian education programs,
and restricting the use of ED supplementary Indian education funds to Indian
students’ unique needs.
This report will be updated as necessary.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Brief History of Federal Indian Education Activities . . . . . . . . . . . . . . . . . . . . . . 2
Students Served by Federal Indian Education Programs . . . . . . . . . . . . . . . . . . . . 9
Federal Indian Education Programs and Services . . . . . . . . . . . . . . . . . . . . . . . . 12
Bureau of Indian Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Statutory Authority for BIE Elementary-Secondary Schools . . . . . . . . 15
BIE Education System Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
BIE Assistance to Public Schools: Johnson O’Malley Program . . . . . 18
BIE School Facilities Construction and Repair . . . . . . . . . . . . . . . . . . 20
BIA Elementary-Secondary Education Appropriations . . . . . . . . . . . . 20
U.S. Department of Education (ED) Indian Programs . . . . . . . . . . . . . . . . . 24
ED Set-Asides for BIE System Schools . . . . . . . . . . . . . . . . . . . . . . . . 25
ED Indian Programs for Public Schools . . . . . . . . . . . . . . . . . . . . . . . 27
ED Indian Education Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
BIE Schools Under the No Child Left Behind Act . . . . . . . . . . . . . . . . . . . . . . . 32
Standards-Based Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Adequate Yearly Progress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Teachers and Paraprofessionals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
BIE-Funded Schools Accreditation Sanctions . . . . . . . . . . . . . . . . . . . 35
Indian Education Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Bureau of Indian Education Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
BIE Reorganization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Definition of AYP for BIE Schools . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
BIE School Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Indian Education Issues for Public Schools . . . . . . . . . . . . . . . . . . . . . . . . . 37
Definition of AYP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Consultation with Indian Tribes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Teacher Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Indian Education Act (IEA) Programs . . . . . . . . . . . . . . . . . . . . . . . . . 38
List of Figures
Figure 1. Number of Indian Students Enrolled in BIA, Public, and
Private Schools, 1900-1975 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Figure 2. Appropriations for BIE Operations and BIA Education
Construction, FY2003-FY2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Figure 3. Distribution of ED Funding for Indian Education Programs,
FY2003-FY2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
List of Tables
Table 1. Number of Indian Students: Comparison of BIE, NCES,
and IEA Data, School Years 2002-2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Table 2. Indian Student Data for Selected States: Comparison of
IEA Count with NCES-BIE Total, SY2002-SY2003 . . . . . . . . . . . . . . . . . 11
Table 3. Number of BIE-Funded Schools and Peripheral Dormitories,
SY2006-2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Table 4. Number of Students in BIE-Funded Schools and Dormitories,
SY2005-SY2006 Student Count . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Table 5. BIE Schools and Peripheral Dormitories and Students: Number
and Percent, by State, SY2004-2005, in Order of Number of Students . . . . 15
Table 6. Appropriations for BIE Elementary-Secondary Education
Programs and BIA Education Construction, Compared with
BIA Totals, FY2003-FY2008R . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Table 7. Estimated Funding for Department of Education’s Indian
Elementary-Secondary Education Programs, FY2003-FY2007 . . . . . . . . . 30
Federal Indian Education Programs:
Background and Issues
Introduction1
The federal government provides elementary and secondary education and
educational assistance to Indian2 children, either directly through federally-funded
schools or indirectly through educational assistance to public schools. Direct
education is provided by the Bureau of Indian Education (BIE)3 in the Department
of the Interior, through elementary and secondary schools funded by the BIE.
Educational assistance to public schools is provided chiefly through programs of the
U.S. Department of Education, although there are also smaller programs in the BIE
and other federal departments.
Federal provision of education services and assistance to Indian children is
based not on race but on their membership, or eligibility for membership, in Indian
tribes, which are political entities. Federal Indian education programs are intended
to serve Indian children who are members, or at least second-degree descendants of
members, of one of the 562 federally recognized Indian tribes or of certain other
Indian tribes and groups. The federal government considers its Indian education
programs to be based on its trust responsibility for Indian tribes, a responsibility
derived from federal statutes, treaties, court decisions, executive actions, and the
Constitution (which assigns authority over federal-Indian relations to Congress). The
federal government considers Indian education programs to be discretionary, like
other education programs, not an entitlement like Medicare.
Indian children, as United States citizens, are also eligible for the federal
government’s general programs of education assistance, but such programs are not
Indian education programs and will not be discussed in this report.
This report provides a brief history of federal Indian education programs, a
discussion of data on students served by these programs, an overview of the programs
and their funding, a discussion of the application to BIE schools of key provisions of
1 LeeAnne M. Kane, CRS 2006 Summer Intern, assisted in the preparation of this report.
2 In this report, the term “Indian” means American Indians and Alaska Natives (the latter
term includes the American Indians, Eskimos (Inuit and Yupik), and Aleuts of Alaska).
3 The BIE was formerly the Office of Indian Education Programs (OIEP) in the Bureau of
Indian Affairs (BIA). In 2006, the Secretary of the Interior moved the OIEP out of the BIA
and made it an agency equivalent to the BIA, renaming it the BIE. Both bureaus are under
the Assistant Secretary - Indian Affairs. For education programs, this report uses “BIE” for
current information and programs and “BIA” for historical periods.
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the No Child Left Behind Act (P.L. 107-110), and brief discussions of selected issues
in Indian education.
Brief History of Federal
Indian Education Activities
U.S. government concern with the education of Indians began with the
Continental Congress, which in 1775 appropriated funds to pay expenses of 10 Indian
students at Dartmouth College.4 Through the rest of the 18th century, the 19th century,
and much of the 20th century, Congress’s concern was for the “civilization” of the
Indians, meaning their instruction in Euro-American agricultural methods, vocational
skills, and habits, as well as in literacy, mathematics, and Christianity. The aim was
to change Indians’ cultural patterns into Euro-American ones — in a word, to
assimilate them.5
From the Revolution until after the Civil War, the federal government provided
for Indian education either by directly funding teachers or schools on a tribe-by-tribe
basis pursuant to treaty provisions or by funding religious and other charitable groups
to establish schools where they saw fit. The first Indian treaty providing for any form
of education was in 1794.6 The first treaty providing for academic instruction was
in 1803.7 Altogether over 150 treaties with individual tribes provided for instructors,
teachers, or schools,8 whether vocational, academic, or both, either permanently or
for a limited period of time. The first U.S. statute authorizing appropriations to
“promote civilization” among Indian tribes was the Indian Trade and Intercourse Act
of 1793,9 but the first authorization and appropriation specifically for academic
instruction of Indian children was the Civilization Act of 1819.10 Civilization Act
funds were expended through contracts with missionary and benevolent societies.
4 Ford, Worthington Chauncey, ed., Journals of the Continental Congress, 1774-1789, Vol.
II, 1775, May 10-September 20 (Washington: GPO, 1905), pp. 176-177. Congress’s stated
intent was to keep the students from returning to their homes in British Canada.
5 Prucha, Francis Paul, The Great Father: The United States Government and the American
Indians (Lincoln: University of Nebraska Press, 1984), pp. 135-136.
6 Treaty with the Oneida, Etc., Art. III, December 2, 1794, 7 Stat. 47, 48. The United States
agreed not only to construct gristmills and sawmills for the Oneida, Tuscarora, and
Stockbridge tribes but also to send persons to instruct the tribes in their use. See also Alice
C. Fletcher, Indian Education and Civilization, U.S. Bureau of Education Special Report,
Sen. Ex. Doc. 95, 48th Cong., 2nd sess. (Washington: GPO, 1888), p. 162.
7 Treaty with the Kaskaskia, Art. 3d, August 13, 1803, 7 Stat. 78, 79.
8 Newton, Nell Jessup, ed.-in-chief, Cohen’s Handbook of Federal Indian Law 2005 Edition
(Newark, NJ: LexisNexis Matthew Bender, 2005), p. 1356. Congress ended treaty-making
with Indian tribes in 1871.
9 Sec. 9, Act of March 1, 1793, Chap. 19, 2nd Cong., 2nd sess., 1 Stat. 329, 331. As civilizing
factors, the section specifically authorizes domestic animals, farming equipment, goods,
money, and resident agents, but not teachers or schools.
10 Act of March 3, 1819, Chap. 85, 15th Cong., 2nd sess., 3 Stat. 516.
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Besides treaty schools and “mission” schools, some additional schools were initiated
and funded directly by Indian tribes. The state of New York also operated schools
for its Indian tribes. The total of such treaty, mission, tribal, and New York schools
reached into the hundreds by the Civil War.11
After the Civil War, the U.S. government began to create a federal Indian school
system, with schools not only funded but also constructed and operated by the BIA
with central policies and oversight.12 The Board of Indian Commissioners in 1869
recommended the establishment of government schools and teachers,13 and in 1870
Congress passed the first general appropriation for Indian schools not provided for
under treaties.14 The initial appropriation was $100,000, but both the amount
appropriated and the number of schools operated by the BIA rose swiftly thereafter.15
The BIA created both boarding and day schools, including off-reservation industrial
boarding schools on the model of the Carlisle Indian Industrial School (established
in 1879).16 Most BIA students attended on- or off-reservation boarding schools.17
BIA schools were chiefly elementary and vocational schools.18
An organizational structure for BIA education began with a Medical and
Education Division during 1873-1881, appointment of a superintendent of education
in 1883, and creation of an education division in 1884.19 The education of Alaska
Native children, however, along that of other Alaska children, was assigned in 1885
to the Department of the Interior’s Office of Education, not the BIA.20 Mission,
11 Fletcher, Indian Education and Civilization, p. 197.
12 Szasz, Margaret Connell, and Ryan, Carmelita, “American Indian Education,” in Wilcomb
E. Washburn, vol. ed., Handbook of North American Indians, Vol. 4, Indian-White Relations
(Washington: Smithsonian, 1988), p. 290.
13 Fletcher, Indian Education and Civilization, p. 167.
14 An Act Making Appropriations for the Current and Contingent Expenses of the Indian
Department ..., Act of July 15, 1870, Chap. 296, 41st Cong., 2nd sess., 16 Stat. 335, 359. See
also U.S. American Indian Policy Review Commission, Task Force Five: Indian Education,
Report on Indian Education, Committee Print (Washington: GPO, 1976), p. 69.
15 Stuart, Paul, Nations Within a Nation: Historical Statistics of American Indians (New
York: Greenwood Press, 1987), pp. 135, 165.
16 Founded by Army Captain Richard H. Pratt on an unused Army base in Carlisle, PA, the
school’s model of educating Indian students in an off-reservation manual labor boarding
school, away from students’ families and cultures, became well-known. Pratt, its first
superintendent, publicized the school and its emphasis on assimilation. Carlisle was funded
through Indian appropriations bills and private donations. It closed in 1918. See Szasz and
Ryan, “American Indian Education,” pp. 290-291.
17 Prucha, Great Father, pp. 815-816.
18 Szasz and Ryan, “American Indian Education,” pp. 290-294.
19 Hill, Edward E., comp., Guide to Records in the National Archives of the United States
Relating to American Indians (Washington: National Archives and Records Service, 1981),
p. 24. See also Szasz and Ryan, “American Indian Education,” pp. 290, 293.
20 Hill, Guide to Records, p. 112; and Szasz and Ryan, “American Indian Education,” p. 297.
(continued...)
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tribal,21 and New York state schools continued to operate, and the proportion of
school-age Indian children attending a BIA, mission, tribal, or New York school rose
slowly.22
A major long-term shift in federal Indian education policy, from federal schools
to public schools, began in FY1890-1891 when the Commissioner of Indian Affairs,
using his general authority in Indian affairs, contracted with a few local public school
districts to educate nearby Indian children for whose schooling the BIA was
responsible.23 The BIA after 1910 pushed to move Indian children to nearby public
schools and to close BIA schools.24 Congress provided some appropriations to pay
public schools for Indian students, although they were not always sufficient and
moreover were not paid where state law entitled Indian students to public education.25
In 1921 Congress passed the Snyder Act26 in order to authorize all programs the
BIA was then carrying out. Most BIA programs at the time, including education,
lacked authorizing legislation. The Snyder Act continues to provide broad and
permanent authorization for federal Indian programs.
By 1920 more Indian students were in public schools than BIA schools.27
Figure 1 displays the changing number of Indian students in federal, public, and
other schools from 1900 to 1975. The shift to public schools accompanied the
increase in the percentage of Indian youths attending any school, which rose from
40% in 1900 to 60% in 1930.28
20 (...continued)
Authorization for Alaska Native education was in §13, Act of May 17, 1884, Chap.53, 48th
Cong. 1st sess., 23 Stat. 24, 27-28.
21 After 1870, most tribal schools were in Oklahoma, operated by one of the “Five Civilized
Tribes” (Cherokee, Chickasaw, Choctaw, Creek, and Seminole), as they were then called.
22 Szasz and Ryan, “American Indian Education,” p. 291.
23 U.S. Department of the Interior, Office of Indian Affairs, Annual Report of the
Commissioner of Indian Affairs [Fiscal Year 1890-1891] (Washington: GPO, 1891), p. 71.
24 Prucha, Great Father, pp. 823-825.
25 Prucha, Great Father, pp. 824-825.
26 Act of November 2, 1921, 42 Stat. 208, as amended; 25 U.S.C. 13.
27 U.S. Department of the Interior, Bureau of Indian Affairs, Report on BIA Education:
Excellence in Indian Education Through the Effective Schools Process. Final Review Draft
([Washington]: The Department, 1988), Table 1, p. 15.
28 Reddy, Marlita A., ed., Statistical Record of Native North Americans (Detroit: Gale
Research, 1993), p. 141. The percentages are of Indians aged 5 to 20 and are based on
Census data. Szasz and Ryan state, “In 1928 almost 90 percent of all Indian children were
enrolled in some school” (“American Indian Education,” p. 294). The discrepancy in
percentages may be related to differing age ranges and differing definitions of the Indian
population.






































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































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In 1934, to simplify the reimbursement of public schools for Indian students,
Congress passed the Johnson-O’Malley (JOM) Act,29 authorizing the BIA to contract
with states and territories for Indian education (and other services to Indians).30
Figure 1. Number of Indian Students Enrolled in BIA, Public, and
Private Schools, 1900-1975
120,000
110,000
100,000
90,000
80,000
70,000
60,000
50,000
40,000
30,000
20,000
10,000
0 1900 1911 1920 1930 1940 1952 1960 1965 1970 1975
BIA
Public schools
schools+dorms
(BIA service
Private schools
(excludes AK)
areas)
Notes:
BIA data include students in peripheral dormitories but exclude students in Alaska BIA
schools.
Public school data are for Indian students living in BIA administrative or service areas.
Source:
U.S. Department of the Interior, Bureau of Indian Affairs, Report on BIA Education. Final
Review Draft ([Washington]: Bureau of Indian Affairs, 1988), Tables 1 and 8, pp. 15, 27.
In the 1920s and 1930s, the BIA began expanding some of its own schools’
grade levels to secondary education. Under the impetus of the Meriam Report and
New Deal leadership, the BIA also began to shift its students toward its local day
schools instead of its boarding schools, and, to some extent, to move its curriculum
29 P.L. 73-167, Act of April 16, 1934, 48 Stat. 596, as amended; 25 U.S.C. 452-457.
30 Szasz and Ryan, “American Indian Education,” p. 295.
CRS-6
toward Indian instead of solely Euro-American subjects.31 In addition, in 1931
responsibility for Alaska Native education was transferred to the BIA.32
The first major non-Interior Department federal funding for Indian education in
the 20th century began in 1953, when the Impact Aid Act of 195033 — which directed
the U.S. Commissioner of Education34 to pay public school districts to help fund the
education of children in “federally impacted areas” — was amended to cover Indian
children eligible for BIA schools.35 Further changes to the Impact Aid law in 1958
and the 1970s increased the funding that went to children on Indian lands.36
Congressional appropriations eventually made Impact Aid the primary, and JOM the
supplemental, source of federal funding to public schools for Indian education. By
FY1981, Impact Aid funding for Indian students amounted to $147 million,37 while
JOM funding the previous year was only $28.1 million.38
In 1966 Congress added further non-Interior funding for Indian education by
amending the Elementary and Secondary Education Act (ESEA) of 1965,39 the major
act authorizing federal education aid to public school districts, to add a set-aside for
BIA schools to the program of grants to help educate students from low-income
families.40
31 Szasz and Ryan, “American Indian Education,” pp. 294-295; and Prucha, Great Father,
pp. 836-839, 977-983. The Meriam Report was an influential study of federal Indian affairs
undertaken by the Institute for Government Research (Lewis A. Meriam, ed., The Problem
of Indian Administration [Baltimore: Johns Hopkins Press, 1928]).
32 Szasz and Ryan, “American Indian Education,” p. 297.
33 P.L. 81-874, Act of September 30, 1950, 64 Stat. 1100, as amended; currently codified at
20 U.S.C., Chap. 70, subchap. VIII.
34 Then in the Federal Security Agency, the office became part of the newly created
Department of Health, Education and Welfare in 1953. See U.S. National Archives and
Records Administration, Records of the Office of Education (Record Group 12), section
12.1, “History,” at [http://www.archives.gov/research/ guide-fed-records/groups/012.html
#12.1].
35 P.L. 83-248, Act of August 8, 1953, 67 Stat. 530.
36 LaCounte, Larry, Tribal Perspective of the Impact Aid Program (Washington: National
Indian Policy Center, [1993?]), pp. 3-5.
37 U.S. Congress, Senate Select Committee on Indian Affairs, Indian Education Oversight,
hearings, May 18-19, 1982, 97th Cong., 2nd sess. (Washington: GPO, 1983), p. 433.
38 U.S. Department of Education, National Center for Education Statistics, Digest of
Education Statistics 2006, NCES 2007-017 (Washington: GPO, 2007), p. 536.
39 P.L. 89-10, Act of April 11, 1965, 79 Stat. 27, as amended; chiefly codified at 20 U.S.C.,
Chap. 70.
40 Sec. 102, Elementary and Secondary Education Amendments of 1966, P.L. 89-750, Act
of Nov 3, 1966, 80 Stat 1191.
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A congressional study of Indian education in the 1960s41 that was highly critical
of federal Indian education programs led to further expansion of federal non-Interior
assistance for Indian education, embodied in the Indian Education Act (IEA) of
1972.42 The IEA established the Office of Indian Education (OIE) within the
Department of Health, Education and Welfare and authorized OIE to make grants to
public school districts with Indian children and to BIA schools.43 The OIE was the
first organization outside of the Interior Department created expressly to oversee a
federal Indian education program. Education Department (ED) aid for Indian
education has become larger, in terms of dollars, than BIA school funding, and ED
assistance has also become a significant source of funding for BIA schools (see
below).
Federal Indian education policy also began to move toward greater Indian
control of federal Indian education programs, in both BIA and public schools. In
1966, the BIA signed its first contract with an Indian group to operate a BIA-funded
school (the Rough Rock Demonstration School on the Navajo Reservation).44 In
1975, through enactment of the Indian Self-Determination and Education Assistance
Act (ISDEAA),45 Congress authorized all Indian tribes and tribal organizations, such
as tribal school boards, to contract to operate their BIA schools. Three years later,
in Title XI, Part B, of the Education Amendments of 1978, Congress required the
BIA “to facilitate Indian control of Indian affairs in all matters relating to
education.”46 This act created statutory standards and administrative and funding
requirements for the BIA school system and separated control of BIA schools from
BIA area and agency officers by creating a BIA Office of Indian Education Programs
(OIEP) and assigning it supervision of all BIA education personnel.47 Ten years later,
the Tribally Controlled Schools Act (TCSA) of 198848 authorized grants to tribes and
tribal organizations to operate their BIA schools, in addition to self-determination
contracts. These laws provide that grants and self-determination contracts be for the
same amounts of funding as the BIA would have expended on operation of the same
schools.49
41 U.S. Congress, Senate Labor and Public Welfare Committee, Special Subcommittee on
Indian Education, Indian Education: A National Tragedy, A National Challenge
(Washington: GPO, 1969).
42 Title IV of the Education Amendments Act of 1972, P.L. 92-318, Act of June 23, 1972,
86 Stat. 235, 334, as amended; currently codified at 20 U.S.C. 7401 et seq.
43 The OIE was transferred to the new Department of Education in 1980.
44 Prucha, Great Father, p. 1102.
45 P.L. 93-638, Act of January 4, 1975, 88 Stat. 2203, as amended; 25 U.S.C. 450 et seq.
46 P.L. 95-561, Title XI, Part B, Act of November 1, 1978, 92 Stat. 2143, 2316, as amended;
currently codified at 25 U.S.C., Chap. 22. The quote is from §1130 of the original act (now
§1131 of the amended act).
47 Prucha, Great Father, p. 1146.
48 P.L. 100-297, Title V, Act of April 28, 1988, 102 Stat. 130, 385, as amended; 25 U.S.C.,
Chap. 27.
49 Provisions are currently codified at 25 U.S.C. 2007 and 25 U.S.C. 2503.
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Indian control in public schools received an initial boost from the 1972 IEA.
The IEA required that public school districts applying for its new grants prove
adequate participation by Indian parents and tribal communities in program
development, operation, and evaluation.50 The 1972 IEA also amended the Impact
Aid program to mandate Indian parents’ consultation in school programs funded by
Impact Aid.51 In 1975 the ISDEAA added to the Johnson-O’Malley Act a
requirement that public school districts with JOM contracts have either a majority-
Indian school board or an Indian parent committee that has approved the JOM
program.52
The number of schools in the BIA school system has shrunk over the years,
through administrative consolidation and congressional closures. For example, all
BIA-funded schools in Alaska were transferred to the state of Alaska between 1966
and 1985, removing an estimated 120 schools from BIA responsibility.53 The number
of BIA-funded schools and dormitories stood at 233 in 193054 and 277 in 1965,55 but
fell to 227 in 1982 and to 180 in 1986 before rising to 185 by 1994;56 it currently
stands at 184.57 Since the 1990s, Congress has limited both the number of BIA
schools and the grade structure of the schools.58 The number of Indian students
educated at BIA schools has for the last 20 years fluctuated between about 39,000
and 48,000.59 In 2006, as noted above, the Interior Secretary separated BIA education
programs from the rest of the BIA and placed them in a new Bureau of Indian
Education (BIE) under the Assistant Secretary - Indian Affairs.
50 Sec. 421(a) of the 1972 act; currently codified, as amended, at 20 U.S.C. 7424(c)(4).
51 P.L. 92-318, §411(a),(c)(2), 86 Stat. 334-339; currently codified, as amended, at 20 U.S.C.
7704. See also Szasz and Ryan, “American Indian Education,” p. 298.
52 25 U.S.C. 456.
53 U.S. Congress, House Committee on Appropriations, Department of the Interior and
Related Agencies Appropriations for 1994, hearings, part 8, 103rd Cong., 1st sess.
(Washington: GPO, 1993), p. 168.
54 U.S. Department of the Interior, Bureau of Indian Affairs, Report on BIA Education:
Excellence in Indian Education Through the Effective Schools Process. Final Review Draft
([Washington: The Department], 1988), p. 17.
55 U.S. Department of the Interior, Bureau of Indian Affairs, Branch of Education, Fiscal
Year 1965 Statistics Concerning Indian Education (Haskell, Kansas: Haskell Institute
Publications Service, [1966]), p. 15.
56 U.S. Department of the Interior, Bureau of Indian Affairs, Office of Indian Education
Programs, Fiscal Year 1995 Annual Education Report ([Washington: The Bureau, n.d.
(1996?)]), p. vi.
57 U.S. Department of the Interior, Bureau of Indian Affairs, Budget Justifications Fiscal
Year 2008 ([Washington: The Department], 2007), p. IA-EDUC-6.
58 The limitations are in the annual BIA appropriations acts.
59 FY1995 Annual Education Report and Budget Justifications FY2008, loc.cit.
CRS-9
Students Served by
Federal Indian Education Programs
It is commonly estimated that BIE schools serve roughly 10% of Indian
students, public schools serve roughly 90%, and private schools serve 1% or less.
These general percentages, however, are not certain. Data on Indian students come
from differing programs and sources. Different federal Indian education programs
serve different, though overlapping, sets of Indian students. Their student data also
differ (and overlap).
Although different federal Indian education programs have different eligibility
criteria, none of the eligibility criteria are based solely on race. Indian students do
not receive the benefits because they are racially Indian. Eligibility is based on the
political status of the groups of which the students are members or descendants of
members.
The BIE school system, for instance, serves students who are members of
federally recognized Indian tribes, or at least one-fourth degree Indian blood
descendants of members of such tribes, and who reside on or near a federal Indian
reservation or are eligible to attend a BIE off-reservation boarding school.60 Many
Indian tribes require less than one-fourth degree of tribal or Indian blood for
membership, so many BIE Indian students have less than one-fourth Indian blood.
Separately, the BIE’s Johnson-O’Malley (JOM) program, according to its
regulations, serves students in public schools who are at least one-quarter degree
Indian blood and recognized by BIA as eligible for BIA services.61
Education Department programs under the Indian Education Act (IEA), on the
other hand, serve a broader set of students, including not only those who are (1) BIE-
eligible but also those who are (2) members (or one-quarter blood descendants of
members) of two types of non-federally-recognized tribes, state-recognized tribes and
tribes whose federal recognition was terminated after 1940; (3) members of an
organized Indian group that received a grant under the IEA as it was in effect before
the passage of the Improving America’s Schools Act of 1994;62 (4) Eskimo, Aleut,
or other Alaska Native; or (5) considered to be Indian by the Secretary of the Interior,
for any purpose.63 Both public school districts and BIE schools are eligible for IEA
programs, so data on IEA beneficiaries include BIE students as well as public school
Indian students. Public school districts must have a minimum number or percentage
of IEA-eligible Indian students to receive a grant. IEA grants are administered by the
OIE, so the OIE is the source of data on IEA students.
60 25 U.S.C. 2007(f). “One-fourth degree” is the equivalent of one “full-blood” grandparent
out of four.
61 25 CFR 273.12.
62 P.L. 103-382, Act of October 20, 1994, 108 Stat. 3518.
63 20 U.S.C. 7491(3).
CRS-10
Another major ED program, the Impact Aid program, serves among others
public schools whose students reside on “Indian lands.”64 The students residing on
Indian lands for whom Impact Aid is provided need not, however, be Indian.
Indian student data based on race present additional problems. Not all students
reported as racially Indian are members or descendants of members of politically
recognized Indian tribes, and not all members of such tribes may be reported as
racially Indian.
For example, ED’s National Center for Education Statistics (NCES), which
collects and analyzes student and school data and produces the National Assessment
of Educational Progress (NAEP),65 publishes reports on Indian students’
characteristics, academic achievements, and NAEP results. NCES data, however, are
based on racial or ethnic identification (except data on BIE students), so the data will
include students who are reported as racially Indian even though they are not
members of tribes and do not fall into federal programs’ eligibility categories.
NCES’s race-based Indian student population is not the same as federal programs’
Indian student population. The two populations overlap to a very great extent, but
the degree of overlap has not been determined. NCES data based on race, then,
cannot be assumed to represent completely accurately the Indian student population
served by federal Indian programs.
Tables 1 and 2 below attempt to illustrate the size of the problem. Table 1
shows BIE, IEA, and NCES data for Indian students for school years (SY) 2002-2003
through SY2004-2005. The NCES counts are far larger than the IEA counts for each
school year not only by themselves (see row 2) but also when BIE counts are added
in (row 3) for better comparability with the IEA count (row 4). The greater number
of NCES Indian students might be explained if one argued that NCES counts include
all IEA Indian students and that the additional students are otherwise eligible but are
attending non-IEA-eligible school districts. But state-by-state data — Table 2
compares NCES-plus-BIE totals with IEA data for selected states — show that
NCES student counts are not always greater than IEA counts for the same state (see
Alabama and Oklahoma). The disagreements between NCES and IEA data suggest
that NCES counts may not include all IEA Indian students, and that IEA counts may
include eligible Indian students who are not counted as racially Indian.
Tables 1 and 2 show the significant differences between the IEA and NCES
numbers and suggest the difficulty of estimating BIE’s share of the national total of
Indian students (Table 1, rows 5 and 6).
There is, then, no single source of data on all Indian students served by federal
Indian education programs. This situation creates problems for Indian education
statistics and analysis.
64 25 U.S.C. 7703(a)(1).
65 NAEP is often known as “the nation’s report card.”
CRS-11
Table 1. Number of Indian Students: Comparison of BIE, NCES,
and IEA Data, School Years 2002-2005
Row
School Type
Sources
Basis of
SY2002-
SY2003-
SY2004-
Indian
SY2003
SY2004
SY2005
Status
1
BIE schoolsa
BIE
Attendance
46,163
45,857
45,811
2
Public schools
NCES
Race
581,227
590,374
581,481
3
Public and
BIE and
Attendance
627,390
636,231
627,292
BIE schools
NCES
plus race
(row 1 plus
row 2)
4
Public and
OIE
IEA
453,905
470,338
459,795
BIE schools
eligibility
receiving IEA
grants
5
Percent BIE
BIE and
Attendance
7.4%
7.2%
7.3%
(row 1
NCES
and race
divided by
row 3)
6
Percent BIE
BIE and
Attendance
11.3%
10.8%
11.1%
(row 1
OIE
and IEA
divided by
eligibility
row 4)
Notes: For sources and list of abbreviations, see Table 2.
a. Excludes students in BIE peripheral dormitories.
Table 2. Indian Student Data for Selected States:
Comparison of IEA Count with NCES-BIE Total, SY2002-SY2003
State
NCES Plus BIE Total
IEA Count
Alabama
5,786
9,322
Arizona
75,735
60,080
California
54,674
31,326
Oklahoma
112,826
115,489
Michigan
26,609
12,317
New Mexico
46,858
40,925
North Dakota
12,288
8,203
Texas
13,168
1,563
Total for All States
627,390
453,905
CRS-12
Sources for Tables 1 and 2:
NCES: U.S. Department of Education, National Center for Education Statistics,
Common Core of Data (CCD), “State Nonfiscal Survey of Public
Elementary/Secondary Education,” query results generated Feb. 22 and 26,
2007.
BIE: U.S. Department of the Interior, Bureau of Indian Education, unpublished
spreadsheets transmitted Jan. 3, 2007.
OIE: U.S. Department of Education, Office of Indian Education, unpublished
spreadsheet transmitted Feb. 23, 2007.
Abbreviations:
BIE — Bureau of Indian Education
IEA — Indian Education Act
NCES — National Center for Education Statistics
OIE — Office of Indian Education
Federal Indian Education Programs and Services
Federal Indian education programs serve Indian elementary-secondary students
in both public schools and BIE system schools. Except for one BIE program, public
schools do not receive BIE funding. Public schools instead receive most of their
federal assistance for Indian education through the U.S. Department of Education
(ED). BIE-funded schools, on the other hand, receive funding both from BIE and
from ED. The BIE estimates that it provides about two-thirds of BIE-funded
schools’ overall funding and ED provides most of the remaining third.66 This section
of the report profiles first the BIE school system and programs and second those ED
programs that provide significant funding for Indian education.
Bureau of Indian Education
The BIE funds a system consisting of elementary and secondary schools, which
provide free education to eligible Indian students, and “peripheral dormitories”
(discussed below).67 The BIE was formerly the Office of Indian Education Programs
within the Bureau of Indian Affairs (BIA). It was split off into a separate bureau in
2006 but like the BIA is under the Assistant Secretary - Indian Affairs within the
Interior Department.68 The BIE system is administered by a director and headquarters
office in Washington, DC, a national service center in Albuquerque, NM, and 21
education line offices (ELOs) across Indian Country. ELOs provide supervision and
technical support for the schools and peripheral dorms.69
66 U.S. Department of the Interior, Bureau of Indian Affairs, Budget Justifications and
Performance Information, Fiscal Year 2008 ([Washington: The Department, 2007])
(hereinafter cited as BIA, Budget Justifications FY2008), p. IA-EDUC-8.
67 BIE also funds post-secondary institutions and programs not discussed in this report. A
small number of BIE-funded elementary-secondary schools also receive funding as public
schools from their states.
68 BIA, Budget Justifications FY2008, pp. IA-EDUC-5 to -6.
69 BIA, Budget Justifications FY2008, pp. IA-EDUC-27 to -28; and BIE, telephone
(continued...)
CRS-13
The BIE-funded school system includes day and boarding schools and
peripheral dormitories. The majority of BIE-funded schools are day schools, which
offer elementary or secondary classes or combinations thereof and are located on
Indian reservations. BIE boarding schools house students in dorms on campus and
also offer elementary or secondary classes, or combinations of both levels, and are
located both on and off reservations. Among the combinations of grade levels
offered in BIE schools are K-2, K-3, K-6, K-8, K-12, 3-9, 6-8, and 9-12.70 Peripheral
dormitories house students who attend nearby public or BIE schools; these dorms are
also located both on and off reservations.
Elementary-secondary schools funded by the BIE may be operated either
directly by the BIE or by tribes and tribal organizations through grants or contracts
authorized under the Tribally Controlled Schools Act (TCSA) of 1988 or the Indian
Self-Determination and Education Assistance Act (ISDEAA) of 1975. (See the
discussion of these two acts in “Statutory Authority for BIE Elementary-Secondary
Schools,” below).
BIE funds 170 schools and 14 peripheral dorms. Table 3 below shows the
number of BIE-funded schools and peripheral dorms, by type of operator. The
majority of BIE-funded schools are tribally operated, and the number of tribally
operated schools continues to rise.71
Table 3. Number of BIE-Funded Schools and
Peripheral Dormitories, SY2006-2007
Schools and Peripheral
Tribally
BIE-
Total
Dormitories
Operated
Operated
Total 123
61
184
Elementary/Secondary Schools
110
60
170
Day schools
86
32
118
Boarding schools
24
28
52
Peripheral Dormitories
13
1
14
Source: U.S. Department of the Interior, Bureau of Indian Education, unpublished table transmitted
June 27, 2007.
The total number of BIE schools and peripheral dorms and the class structure
of each school have been limited by Congress since the mid-1990s. Through annual
appropriation acts, Congress has since 1994 prohibited BIE from funding schools that
were not in the BIE system as of September 1, 1996, and has since 1996 prohibited
use of BIE funds to expand a school’s grade structure beyond the grades in place as
69 (...continued)
conversation, October 4, 2007.
70 U.S. Department of Education, Office of Elementary and Secondary Education, Bureau
of Indian Affairs, Office of Indian Education Programs, Consolidated State Application
Accountability Workbook (last updated August 31, 2006), at [http://www.ed.gov/admins/
lead/account/stateplans03/csabia.pdf], p. 8.
71 BIA, Budget Justifications FY2008, p. IA-EDUC-19.
CRS-14
of October 1, 1995.72 Congress was concerned that adding new BIE schools or
expanding existing schools would, in circumstances of limited financial resources,
“diminish funding for schools currently in the system.”73
Only Indian children attend the BIE school system, with few exceptions. In
SY2006-07, BIA estimates that BIE-funded schools and peripheral dorms served
approximately 46,000 Indian students representing over 250 tribes.74 Table 4 shows
the student count in BIE day and boarding schools and peripheral dormitories in
SY2005-06, by type of operator.
Table 4. Number of Students in BIE-Funded Schools and
Dormitories, SY2005-SY2006 Student Count
Schools and Peripheral
Tribally
BIE-
Total
Dormitories
Operated
Operated
Total 26,763
15,880
42,643
Elementary/Secondary Schools
25,403
15,737
41,140
Day schools
22,881
11,942
34,823
Boarding schools
2,522
3,795
6,317
Peripheral Dormitories
1,360
143
1,503
Source: U.S. Department of the Interior, Bureau of Indian Education, unpublished table transmitted
Aug. 1, 2007.
BIE-funded schools and peripheral dorms are generally small. The average size
of BIE-funded schools was 270 students in SY2003-2004,75 compared to 521
students for public elementary and secondary schools in SY2003-2004.76 In SY2002-
2003, 69% of BIE-funded schools had 300 or fewer children in attendance.77
The 184 BIE-funded schools and peripheral dormitories are located on 63
reservations in 23 states.78 These BIE facilities are not evenly distributed across the
country. In SY2004-2005, almost 72% of BIE schools and dorms and just over 76%
72 See, e.g., the Department of the Interior, Environment, and Related Agencies
Appropriations Act, 2006, P.L. 109-54, Act of August 2, 2005, 119 Stat. 499, 516.
73 U.S. Congress, Senate Appropriations Committee, Department of the Interior and Related
Agencies Appropriations Bill, 1995, report to accompany H.R. 4602, 103rd Cong., 2nd sess.,
S.Rept. 103-294 (Washington: GPO, 1994), p. 58.
74 BIA, Budget Justifications FY2008, pp. IA-EDUC-12, -27.
75 Excludes BIE peripheral dorms. CRS calculation based on unpublished BIE data
transmitted January 3, 2007. Adding in students in BIE peripheral dorms raises the average
size to 259 students in SY2003-2004.
76 U.S. Department of Education, National Center for Education Statistics, Digest of
Education Statistics 2005, NCES 2006-030 (Washington: GPO, 2006), Table 87.
77 U.S. Department of Education, National Center for Education Statistics, Status and Trends
in the Education of American Indians and Alaska Natives, NCES 2005-108 (Washington:
GPO, 2005), p. 32.
78 Ibid.
CRS-15
of BIE students were located in 4 of the 23 states: Arizona (29% of students), New
Mexico (23%), South Dakota (16%), and North Dakota (8%). Table 5 below shows
the distribution of BIE schools and students across the 23 states. There are no BIE
schools or students in Alaska, a circumstance directed by Congress (see “Brief
History of Federal Indian Education Activities,” above).79
Table 5. BIE Schools and Peripheral Dormitories and Students:
Number and Percent, by State, SY2004-2005,
in Order of Number of Students
Schools and Dorms
Students
State
Number
Percent
Number
Percent
1
Arizona
54
29.3
13,797
29.0
2
New Mexico
44
23.9
10,965
23.0
3
South Dakota
22
12.0
7,766
16.3
4
North Dakota
12
6.5
3,703
7.8
5
Mississippi
8
4.3
1,816
3.8
6
Washington
8
4.3
1,511
3.2
7
Oklahoma
5
2.7
1,405
3.0
8
North Carolina
1
0.5
1,127
2.4
9
Wisconsin
3
1.6
834
1.8
10
California
2
1.1
822
1.7
11
Minnesota
4
2.2
806
1.7
12
Montana
3
1.6
459
1.0
13
Oregon
1
0.5
430
0.9
14
Utah
2
1.1
418
0.9
15
Michigan
2
1.1
327
0.7
16
Maine
3
1.6
310
0.7
17
Wyoming
1
0.5
237
0.5
18
Florida
2
1.1
230
0.5
19
Idaho
2
1.1
204
0.4
20
Iowa
1
0.5
162
0.3
21
Nevada
2
1.1
107
0.2
22
Kansas
1
0.5
80
0.2
23
Louisiana
1
0.5
72
0.2
Total
184
100
47,588
100
Source: U.S. Bureau of Indian Education, unpublished table transmitted Jan. 3, 2007.
Statutory Authority for BIE Elementary-Secondary Schools.
Currently, BIE-funded schools, dorms, and programs are administered under a
number of statutes. The key statutes are summarized here.
79 Annual appropriation acts for the Department of the Interior regularly include an
administrative provision prohibiting BIA expenditures to support operation of schools in
Alaska (except through the Johnson-O’Malley program); see, e.g., P.L. 109-54 (119 Stat.
499, 516).
CRS-16
Snyder Act of 1921.80 This act provides a broad and permanent authorization
for federal Indian programs, including for “[g]eneral support and civilization,
including education.” The act was passed because Congress had never enacted
specific statutory authorizations for most BIA activities, including BIA schools.
Congress had instead made detailed annual appropriations for BIA activities.
Authority for Indian appropriations in the House had been assigned to the Indian
Affairs Committee after 1885 (and in the Senate to its Indian Affairs Committee after
1899). Rules changes in the House in 1920, however, moved Indian appropriations
authority to the Appropriations Committee, making Indian appropriations vulnerable
to procedural objections because they lacked authorizing acts. The Snyder Act was
passed in order to authorize all the activities the BIA was then carrying out. The act’s
broad language, however, may be read as authorizing — though not requiring —
nearly any Indian program, including education, for which Congress enacts
appropriations.
Indian Self-Determination and Education Assistance Act of 1975.81
ISDEAA, as amended, provides for tribal administration of certain federal Indian
programs, including BIA and BIE programs. The act allows tribes to assume some
control over the management of BIE-funded education programs by negotiating
“self-determination contracts” with BIE for tribal management of specific schools or
dorms. Under a self-determination contract, BIE transfers to tribal control the funds
it would have spent for the contracted school or dorm, so the tribe may operate it.
Tribes or tribal organizations may contract to operate one or more schools.82
Education Amendments Act of 1978.83 This act declares federal policy
on Indian education and establishes requirements and guidelines for the BIE-funded
elementary and secondary school system. As amended, the act covers academic
accreditation and standards, a funding allocation formula, BIE powers and functions,
criteria for boarding and peripheral dorms, personnel hiring and firing, the role of
school boards, facilities standards, a facilities construction priority system, and
school closure rules, among other topics. It also authorizes several BIE grant
programs, including administrative cost grants for tribally operated schools
(described below), early childhood development program grants (also described
below), and grants and technical assistance for tribal departments of education.
80 Act of November 2, 1921, 42 Stat. 208, as amended; 25 U.S.C. 13.
81 P.L. 93-638, act of January 4, 1975, 88 Stat. 2203, as amended; 25 U.S.C. 450 et seq.
82 ISDEAA’s Title IV, “Tribal Self-Governance,” §§401-408 (25 U.S.C. 458aa-458hh),
authorizes “self-governance compacts” with tribes under which a tribe may operate multiple
BIA programs under a single compact, but BIE’s formula funding for schools is excluded
from these compacts (§403(b)(4)(B); 25 U.S.C. 458cc(b)(4)(B)).
83 P.L. 95-561, Title XI, Part B, Act of November 1, 1978, 92 Stat. 2143, 2316, as amended
by §1042 of the Native American Education Improvement Act of 2001, which was Title X,
Part D, of the No Child Left Behind Act, P.L. 107-110, Act of January 8, 2002, 115 Stat.
2007, as further amended; 25 U.S.C., Chap. 22 (§§2000 et seq.).
CRS-17
Tribally Controlled Schools Act (TCSA) of 1988.84 TCSA added grants
as another means, besides ISDEAA contracts, by which Indian tribes and tribal
organizations could operate BIE-funded schools. The act requires that each grant
include all funds that BIE would have allocated to the school for operation,
administrative cost grants, transportation, maintenance, and ED programs. Because
ISDEAA contracts were found to be a more cumbersome means of Indian control of
schools, most tribally operated schools are grant schools.85
BIE Education System Programs. Funding for and operation of BIE-
funded schools are carried out through a number of different programs. The major
BIE funding programs are “forward-funded” — that is, the BIE programs’
appropriations for a fiscal year are used to fund the school year that begins during
that fiscal year.86
Indian School Equalization Program. The Indian School Equalization
Program (ISEP) is the formula-based method by which Congressional appropriations
for BIE-funded schools’ academic (and, if applicable, residential) operating costs are
allocated among the schools. Before allocation under the formula, part of ISEP funds
are set aside for program adjustments and contingencies.
The ISEP formula, although authorized under the Education Amendments of
1978,87 is specified not in statute but in federal regulations. The formula is based on
a count of student “average daily membership” (ADM) that is weighted to take into
account students’ grade levels and residential-living status (e.g., in boarding schools
or peripheral dorms) and is then supplemented with weights or adjustments for gifted
and talented students, language development needs, and a school’s geographic
isolation and size. These weighted figures are called “weighted student units”
(WSUs). Total WSUs are calculated for each school, by school year. All schools’
WSUs are then totaled nationally, for the current and each of the preceding three
school years. The preceding three years’ national WSUs are then averaged (by
totaling and dividing by three). This national three-year average WSU figure is then
divided into the Congressional appropriation for ISEP for the current school year, to
yield a national dollar value for a single WSU. This national dollar value of a WSU
is then multiplied by each school’s current-year WSU total to get that school’s
funding allocation for the current school year.88
Student Transportation. To transport its students, both day and boarding,
the BIE funds an extensive student transportation system. Student transportation
84 P.L. 100-297, Title V, Act of April 28, 1988, 102 Stat. 130, 385, as amended; 25 U.S.C.,
Chap. 27
85 Cohen’s Handbook of Federal Indian Law 2005 Edition, p. 1361.
86 Federal fiscal years (FY) begin on October 1 and end on the following September 30.
School years (SY) begin on July 1 (three-quarters of the way through the fiscal year) and
end the following June 30. Hence BIE appropriations for FY2007 (October 1,
2006-September 30, 2007) will be used to fund SY2007-2008 (July 1, 2007-June 30, 2008).
87 25 U.S.C. 2007.
88 25 CFR Part 39, Subparts A-C.
CRS-18
funds provide for buses, fuel, maintenance, and bus driver salaries and training, as
well as certain commercial transportation costs for some boarding school students.
Because of largely rural and often remote school locations, many unimproved and
dirt roads, and the long distances from children’s homes to schools, transportation
of BIE students can be expensive. Student transportation funds are distributed on a
formula basis, using commercial transportation costs and the number of bus miles
driven (with an additional weight for unimproved roads).89
Early Childhood Development. BIE’s early childhood development
program funds the agency’s Family And Child Education (FACE) grants to tribes and
tribal organizations for services for pre-school Indian students and their parents.
FACE programs include early childhood education for children under 6 years old,
and parenting skills and adult education for their parents to improve their
employment opportunities. The grants are distributed by formula among applicant
tribes and organizations who meet the minimum tribal size of 500 members. In
FY2006 FACE programs were being carried out at 38 BIE-funded schools.90
Administrative Cost Grants. Administrative cost grants pay administrative
and indirect costs for tribally operated BIE-funded schools. By providing assistance
for direct and indirect administrative costs that may not be covered by ISEP or other
BIE funds, administrative cost grants are intended to encourage tribes to take control
of their schools. These are formula grants based on an “administrative cost
percentage rate” for each school, with a minimum grant of $200,000.91
Facilities Operations. This program funds the operation of educational
facilities at all BIE-funded schools and dorms. Operating expenses may include
utilities, supplies, equipment, custodians, trash removal, maintenance of school
grounds, minor repairs, and other services, as well as monitoring for fires and
intrusions.92
Education Department Set-Asides. The BIE receives funding from the
Education Department under set-asides in the Elementary and Secondary Education
Act, the Individuals with Disabilities Education Act, and other acts, and allocates the
funds to its schools. As noted above, the BIE estimates that it provides about two-
thirds of BIE-funded schools’ overall funding and ED provides most of the remaining
third.93 More detailed discussion of ED funding for BIE is provided in “Department
of Education Indian Programs” and Table 7, below.
BIE Assistance to Public Schools: Johnson O’Malley Program. The
Johnson O’Malley (JOM) program provides supplementary financial assistance,
89 BIA, Budget Justifications FY2008, pp. IA-EDUC-15 to -16, and 25 CFR Part 39, Subpart
G.
90 BIA, Budget Justifications FY2008, pp. IA-EDUC-17 to -18.
91 BIA, Budget Justifications FY2008, pp. IA-EDUC-18 to -19, and 25 CFR Part 39, Subpart
J.
92 BIA, Budget Justifications FY2008, p. IA-EDUC-19.
93 BIA, Budget Justifications FY2008), p. IA-EDUC-8.
CRS-19
through contracts, to meet the unique and specialized educational needs of Indian
students in public schools and non-sectarian private schools. BIE contracts with
tribes and tribal organizations to distribute funds to schools or other programs
providing JOM services, and it also contracts directly with states and public school
districts for JOM programs. Most JOM funds are distributed through tribal
contractors. Prospective contractors must have education plans that have been
approved by an Indian education committee made up of Indian students’ parents.
JOM funds are distributed to contractors by formula, based on a count of Indian
students and average per-pupil operating costs, and are to be used for supplemental
programs, such as tutoring, other academic support, books, supplies, Native language
classes, cultural activities, summer education programs, after-school activities, or a
variety of other education-related needs. JOM funds may be used for general school
operations only when a public school district cannot meet state educational standards
or requirements without them.94 JOM serves about 272,000 students in 33 states,
according to the BIA.95
JOM Statutory Authority. Enacted in 1934, the Johnson O’Malley Act
authorized the Interior Secretary to contract directly with states, local governments
(such as school districts), colleges, and private entities “for the education, medical
attention, agricultural assistance, and social welfare, including relief of distress, of
Indians in such State.”96 Education eventually came to be the chief area of JOM
contracting. After enactment of Impact Aid gave public school districts a separate
and much larger source of federal funding for Indian students (see “Brief History of
Federal Indian Education Activities,” above), Indian groups argued that JOM funds
should be used only for Indian students and not for districts’ general operating costs.
The BIA amended its regulations in 1974 to restrict school districts’ use of JOM
funds to supplementary programs purely for Indian students (the same regulations
also made it clear that Indian tribes were eligible for JOM contracts).97 In 1985
94 BIA, Budget Justifications FY2008, p. IA-EDUC-20; 25 CFR Part 273; U.S. Bureau of
Indian Affairs, Office of Indian Education Programs, “JOM,” available at
[http://www.oiep.bia.edu]; and unpublished data transmitted April-May 2006. Also,
National Indian Education Association, “The Johnson O’Malley Program,” February 12,
2007, available at [http://www.niea.org/sa/uploads/legislativetracking/44.35.NIEA_
Briefing_OMalleyProgram_2-8.pdf ].
95 U.S. Department of the Interior, Bureau of Indian Affairs, Budget Justifications and
Performance Information, Fiscal Year 2005 ([Washington: The Department, 2004]), p. BIA-
58. Student counts have remained effectively unchanged since FY1996, because House and
Senate Appropriations Committees’ directives in 1994 to move JOM funding to specific
parts of the BIA budget, combined with a statutory prohibition on changing tribes’ base
funding (25 U.S.C 450j-1(b)(2)), had the effect of “freezing” tribal JOM programs and
student counts (BIA, telephone conversation, November 2, 2000).
96 P.L. 73-167, Act of April 16, 1934, Chap. 147, 73rd Cong., 48 Stat. 596, as amended; 25
U.S.C. 452-457. The quote is from §1 (25 U.S.C. 452).
97 39 Fed.Reg. 30114-30116 (August 21, 1974). See also Prucha, Great Father, pp. 1143-
1144.
CRS-20
Congress enacted a statute limiting JOM contracts to supplementary educational
services for Indian students.98
BIE School Facilities Construction and Repair. The BIA funds
construction activities for BIE schools and school facilities. Construction may mean
replacing all facilities on an existing BIE school campus, replacing individual
buildings, or making major and minor repairs and improvements. Included in the
education construction program is improvement and repair of BIE employee housing
units.99 Construction may be administered either by BIA or by tribes under ISDEAA
or TCSA.
BIA Elementary-Secondary Education Appropriations. BIA
appropriations for elementary-secondary education are divided between program
funds, expended through the BIE, and construction and related spending carried out
through the BIA. Table 6 below shows detailed appropriations for BIE programs and
BIA education construction for FY2003-FY2007, with the Administration budget
request for FY2008.100
BIE appropriations have remained relatively stable, rising 3% over the 5-year
period, from $533.3 million in FY2003 to $549.3 million in FY2007. As a
proportion of BIA’s Operation of Indian Programs (OIP) budget, BIE program
funding has consistently stood at just below 30% of OIP appropriations. Total BIA
spending on elementary-secondary education, however, has fallen 9% over the same
period, from $827.1 million to $754.2 million, and has shrunk from 37% of total BIA
appropriations to 33%. As illustrated in Figure 2, changes in BIA education
construction appropriations account for the 9% reduction; education construction
appropriations have fallen 30%, from $293.8 million in FY2003 to $205.0 million
in FY2007.
98 P.L. 99-190, §101(d) [Title I], Act of December 19, 1985, 99 Stat. 1185, 1235.
99 BIA, Budget Justifications FY2008, pp. IA-CON-ED-2 to -4.
100 For more information on BIA FY2008 appropriations, see CRS Report RL34011,
Interior, Environment, and Related Agencies: FY2008 Appropriations, coordinated by Carol
Hardy Vincent.

CRS-21
Figure 2. Appropriations for BIE Operations and BIA
Education Construction, FY2003-FY2007
$900
$800
$700
$600
$500
BIA Education
Construction
$400
$300
BIE Elementary
-Secondary
$200
Education
Operations
$100
$0 FY03FY04FY05FY06FY07
CRS-22
Table 6. Appropriations for BIE Elementary-Secondary Education Programs and BIA Education
Construction, Compared with BIA Totals, FY2003-FY2008R
(current $ in thousands)
FY2003a
FY2004
FY2005
FY2006
FY2007
FY2008R
BIA Operation of Indian Programs (OIP)
1,845,246
1,893,291
1,926,091
1,962,190
1,988,223
1,990,918
BIE Elementary-Secondary Education
533,292
542,353
536,505
542,420
549,293
562,020
Percent of OIP
29%
29%
28%
28%
28%
28%
Elementary/Secondary (Forward-Funded)
445,072
452,874
449,721
457,750
458,310
476,500
ISEP Formula Funds
347,204
349,919
348,073
350,062
351,817
364,020
ISEP Program Adjustments
670
659
1,145
5,116
7,533
3,256
Student Transportation
37,262
38,116
39,444
42,738
42,833
47,602
Early Childhood Development
15,164
15,604
15,355
15,281
12,067
12,262
Administrative Cost Grants
44,772
48,576
45,704
44,553
44,060
44,060
Education Program Enhancements
—
—
—
—
—
5,300
Elementary/Secondary Programs
59,220
60,891
59,708
59,516
60,390
61,803
Facilities Operation
55,423
57,106
55,976
55,812
56,047
57,399
Residential Education Placement Programb
3,797
3,785
3,732
3,704
3,713
3,774
Juvenile Detention Education
—
—
—
—
630
630
Johnson-O’Malley Program
16,908
16,666
16,510
16,371
12,000
0
Education Program Managementc
12,092
11,922
10,566
8,783
18,593
23,717
All BIA Construction
345,988
346,827
319,129
271,582
271,823
197,627
Education Constructiond
293,795
294,954
263,372
206,787
204,956
139,844
Percent of All BIA Construction
85%
85%
83%
76%
75%
71%
Replacement School Construction
124,409
139,612
105,550
64,530
83,891
14,815
Replacement Facility Construction
—
—
—
—
26,873
22,578
Employee Housing Repair
3,100
3,081
3,038
1,971
1,973
1,617
Education Facilities Improvement and Repair
163,306
146,335
142,531
140,286
92,219
100,834
Tribal School Construction Demonstration Program
2,980
5,926
12,253
0
0
0
All BIA Appropriations
2,257,244
2,306,401
2,295,702
2,274,270
2,308,304
2,228,890
Total: BIE Elementary-Secondary Education and
827,087
837,307
799,877
749,207
754,249
701,864
Education Construction
Percent of All BIA Appropriations
37%
36%
35%
33%
33%
31%
CRS-23
Sources: “Annual comprehensive budget table,” in U.S. Department of the Interior, Bureau of Indian Affairs, Budget Justifications and Performance
Information, Fiscal Year [2005-2008] ([Washington: The Department], 2004-2007); and U.S. Bureau of Indian Affairs, “FY 2007 Indian Affairs Operating
Plan” (March 23, 2007), unpublished table transmitted March 29, 2007.
Notes: In this table, “BIA” includes all Indian programs under the Assistant Secretary - Indian Affairs in the Department of the Interior.
a. FY2003 BIA data have been rearranged from BIA’s budget structure at that time to BIA’s current budget structure.
b. Formerly called the Institutionalized Disabled Program.
c. Includes funds for management of BIE elementary, secondary, and post-secondary education programs.
d. Includes small amount of funds for BIA post-secondary education institutions.
Abbreviations:
BIA — Bureau of Indian Affairs
BIE — Bureau of Indian Education
ISEP — Indian School Equalization Program
OIP — BIA Operation of Indian Programs (includes all BIA and BIE programs except construction, miscellaneous payments, land and water rights
settlements, and loan guarantees)
R — Requested by Administration
CRS-24
U.S. Department of Education (ED) Indian Programs
In SY2004-2005, approximately 414,000-581,000 Indian elementary-secondary
students attended public schools, accounting for between about 89% and 93% of
Indian students (for discussion of the data ranges, see “Students Served,” above).
The U.S. Department of Education (ED) provides funding specifically for Indian
elementary-secondary education to both public and BIE schools; about three-quarters
of this funding goes to public schools and related organizations (see Table 7 below).
According to NCES data for SY2002-SY2003, Indian students in public schools
were more likely than the total student population to attend rural schools.101 Indian
public school students were also likely to be concentrated: while they constituted
only 1.2% of public school students nationwide, 40% of Indian students attended
public schools where they made up 25% or more of the school’s student body, and
26% attended schools where they made up 50% or more of all students.102 Schools
where Indians constituted 25% or more of the student body were likely to be
relatively small: over 70% of such schools had less than 300 students.103 Schools
where Indians were less than 25% of the student body were larger: over 68% of such
schools had over 300 students.104
Geographically, according to NCES data, Indian public school students were
spread across more states than BIE students, appearing in all 50 states and the District
of Columbia (compare Table 5 above).105 In SY2004-2005, however, over half of
all Indian public school students were in just 5 states: Oklahoma (20%), Arizona
(11%), California (9%), and New Mexico and Alaska (6% apiece).106
ED’s assistance specifically for Indian education is not to be confused with its
general assistance to elementary-secondary education nationwide. Indian students
benefit from ED’s general assistance as citizens, not as Indians. This report covers
ED Indian assistance — that is, assistance statutorily specified for Indians — not
general ED assistance that may also benefit Indian students.
ED Indian funding to public and BIE schools flows through a number of
programs, most authorized under the Elementary and Secondary Education Act
(ESEA)107 or the Individuals with Disabilities Education Act (IDEA),108 although
101 NCES 2005-108, pp. 30, 137.
102 NCES 2005-108, pp. 30-31. NCES data recalculated by CRS for public schools only.
103 NCES 2005-108, p. 33.
104 Ibid.
105 NCES 2005-108, pp. 136-137.
106 U.S. Department of Education, NCES, CCD, “State Nonfiscal Survey of Public
Elementary/Secondary Education,” data generated February 22, 2007. SY2004-05 data for
Nevada were missing, so SY2003-04 data for Nevada were used instead and percentages
were recalculated accordingly.
107 P.L. 89-10, Act of April 11, 1965, 79 Stat. 27, as amended, especially by the No Child
(continued...)
CRS-25
other acts also authorize Indian education assistance. Some general ED programs
have set-asides for BIE schools, while other programs either may be intended solely
for Indian students, may specifically include Indian and non-Indian students, or may
mention Indian students as a target of the assistance. BIE schools are included in the
definition of “local educational agency” (LEA) in ESEA109 and IDEA,110 so many ED
programs may provide funding to BIE schools even when the programs have no BIE
set-aside or other specific provision for BIE schools.
Major ED Indian programs are profiled below, divided between set-aside
programs for BIE schools and all other programs. For more information on ESEA
programs discussed below, see CRS Report RL33960, The Elementary and
Secondary Education Act, as Amended by the No Child Left Behind Act: A Primer.
For more information on IDEA programs, see CRS Report RS22590, The Individuals
with Disabilities Education Act (IDEA): Overview and Selected Issues. See Table
7 below for a list of all ED programs for Indian elementary-secondary education.
ED Set-Asides for BIE System Schools. ED funds that are set aside for
BIE schools are administered and allocated by the BIE. See Table 7 for the amount
of funds under each ED program. As LEAs, BIE schools are also eligible to receive
assistance under many ED non-Indian programs,111 outside of BIE administration, but
these funds are not discussed here. BIE schools may also receive assistance under
some ED Indian programs for public schools discussed below.
ESEA Title I-A Grants to Local Educational Agencies. Title I, Part A,
of ESEA112 authorizes formula grants, through state educational agencies, to public
school districts (LEAs) for the education of disadvantaged children. ESEA Title I-A
grants go to LEAs to serve pupils in schools with relatively large numbers or
percentages of children from low-income families, and are used to provide
supplementary education services, as either schoolwide programs or targeted
assistance to the lowest-achieving students. Section 1121 of ESEA113 sets aside 1%
of Title I-A appropriations for the Interior Secretary and the outlying areas. Interior
Department funds are for BIE schools and for out-of-state Indian students being
educated in public schools under BIE contracts (e.g., students in peripheral dorms).
107 (...continued)
Left Behind Act of 2001, P.L. 107-110, Act of January 8, 2002, 115 Stat. 1439, as further
amended; chiefly codified at 20 U.S.C., Chap. 70.
108 P.L. 94-142, Act of November 29, 1975, 89 Stat. 773, as amended by P.L. 108-446, Title
I, §101, Act of December 3, 2004, 118 Stat. 2647; codified at 20 U.S.C., Chap. 33 (§§1400
et seq.).
109 ESEA, §9101(26(C); 20 U.S.C. 7801(26)(C).
110 IDEA, §602(19)(C); 20 U.S.C. 1401(19)(C).
111 BIA, Budget Justifications FY2008, p. IA-EDUC-9.
112 20 U.S.C., Chap. 70, Subchap. I, Part A. For more information on the ED program, see
CRS Report RL33731, Education for the Disadvantaged: Reauthorization Issues for ESEA
Title I-A Under the No Child Left Behind Act.
113 20 U.S.C. 6331.
CRS-26
The amount of the 1% that goes to the Interior Department is the amount determined
by the Secretary of Education to be needed to meet the special educational needs of
the Indian students (in recent years it has been approximately 70% of the total set-
aside).114
ESEA Title II-A Improving Teacher Quality State Grants. Title II, Part
A, Subpart 1, of ESEA115 authorizes grants to states for the recruitment, retention,
and professional development of highly-qualified teachers and principals in
elementary-secondary schools. Section 2111(b)(1)(A)(ii) of ESEA116 sets aside 0.5%
of appropriations for programs in BIE schools.
ESEA Title IV-B 21st Century Community Learning Centers. Title IV,
Part B, of ESEA117 authorizes formula grants to states for activities that provide
learning opportunities for school-aged children during non-school hours. States
award competitive subgrants to LEAs and community organizations for before- and
after-school activities that will advance student academic achievement. Section
4202(a)(3) of ESEA118 sets aside no more than 1% of Title IV-B appropriations for
the BIE and the outlying areas. The amount of the 1% that goes to the BIE is
determined by the Secretary of Education.
Indian Education Act Formula Grants to LEAs. The Indian Education
Act authorizes a formula-based allocation for BIE schools, in addition to the LEA
formula grants for which BIE schools are eligible as LEAs.119 See “Indian Education
Act,” below, for a more detailed discussion.
IDEA Part B Special Education Grants to States. Part B of IDEA120
authorizes formula grants to states to help them provide a free appropriate public
education to children with disabilities. States make subgrants to LEAs. Funds may
be used for salaries of teachers or other special-education personnel, education
materials, transportation, occupational therapy, or other special-education services.
Section 611(b)(2) of IDEA121 reserves 1.226% of state-grant appropriations for the
114 Calculated from “Fiscal Year 2001-2008 State Tables for the U.S. Department of
Education: State Tables by Program,” U.S. Department of Education, Budget Service
[http://www.ed.gov/about/overview/budget/statetables/index. html].
115 20 U.S.C., Chap. 70, Subchap. II, Part A, Subpart 1. For more information on the ED
program, see CRS Report RL31882, Teacher Quality Enhancement Grants (Title II, Part
A of the Higher Education Act): Overview and Reauthorization Issues.
116 20 U.S.C. 6611(b)(1)(A)(ii).
117 20 U.S.C., Chap. 70, Subchap. IV, Part B. For more information on the ED program, see
CRS Report RL31240, 21st Century Community Learning Centers: Background and
Funding.
118 20 U.S.C. 7172(a)(3).
119 ESEA, §7113(d); 20 U.S.C. 7423(d).
120 20 U.S.C., Chap. 33, Subchap. II.
121 20 U.S.C. 1411(b)(2).
CRS-27
Interior Secretary. Section 611(h) of IDEA122 directs the Interior Secretary to allocate
80% of the funds to BIE schools for special education for children aged 5-21 and
20% to tribes and tribal organizations on reservations with BIE schools for early
identification of children with disabilities aged 3-5, parent training, and provision of
direct services. In recent years, appropriations acts have limited annual increases for
BIE schools under IDEA to the rate of inflation, so the Interior set-aside is now
below the 1.226% set in IDEA.
ED Indian Programs for Public Schools. Some ED programs may be
intended solely for Indian students, some may specifically include Indian and non-
Indian students, and some may mention Indian students as a target of the assistance
(along with other intended beneficiaries). ED programs (or portions of programs)
that are specifically for Indian students are discussed below. In some of these
programs, funding may go to BIE schools in addition to public schools.
Impact Aid. Impact Aid, Title VIII of ESEA,123 provides financial assistance
to school districts whose tax revenues are significantly reduced, or whose student
enrollments are significantly increased, because of the impacts of federal property
ownership or federal activities. Among such impacts are having a significant number
of children enrolled who reside on “Indian lands,”124 which is defined as Indian trust
and restricted lands,125 lands conveyed to Alaska Native entities under the Alaska
Native Claims Settlement Act of 1971,126 public lands designated for Indian use, and
certain lands used for low-rent housing.127 Impact Aid funds are distributed by
formula directly to LEAs and are used for basic operating costs, special education,
and facilities construction and maintenance. The Education Department estimates
that currently about 121,000 Indian students benefit from Impact Aid each year.128
The amount of Impact Aid funding going to LEAs because of Indian lands makes it
the largest ED Indian education program. Among the LEAs to which Impact Aid
goes are a few BIE schools.
122 20 U.S.C. 1411(b)(2), (h).
123 20 U.S.C., Chap. 70, Subchap. VIII. For more information on this ED program, see CRS
Report RL31885, Impact Aid for Public K-12 Education: General Overview and Current
Status, and CRS Report RL34119, Impact Aid for Public K-12 Education: Reauthorization
Under the Elementary and Secondary Education Act.
124 ESEA, §8013(5), (7); 20 U.S.C. 7713(5), (7).
125 Trust lands and restricted lands are not taxable by states or local governments, including
LEAs. Trust lands are lands held by the federal government in trust for an Indian tribe or
individual; restricted lands are lands held by an Indian tribe or individual subject to federal
restrictions on alienation.
126 P.L. 92-203, Act of December 18, 1971, 85 Stat. 688; 43 U.S.C. 1601 et seq.
127 20 U.S.C. 7713(5), (7).
128 U.S. Department of Education, Budget Service, unpublished table, transmitted March 2,
2007.
CRS-28
Indian Education Act. Title VII, Part A, of ESEA129 authorizes formula
grants to eligible public school districts, BIE schools (as LEAs), and (in certain
circumstances) Indian tribes for supplementary education programs to assist Indian
students to meet challenging state standards. The supplementary programs can
include tutoring, after-school programs, dropout prevention, early childhood and
family programs, culturally related activities, and many other activities. For an LEA
to be eligible, at least 10 Indian students must be enrolled or at least 25% of its total
enrollment must be Indians (exempted from these requirements are LEAs in Alaska,
California, and Oklahoma and LEAs located on or near an Indian reservation). An
LEA’s application must be approved by a local Indian education committee of
parents, teachers, and secondary students. In addition to LEA formula grants, the act
requires the Secretary of Education to allocate a formula-based amount for
distribution to the Interior Secretary for BIE schools.
The IEA also authorizes several competitive grant programs. One provides
demonstration grants to develop and test services and programs to improve Indian
students’ educational opportunities and achievement; LEAs, colleges, tribes and
tribal organizations, and BIE schools are eligible for these grants. Another
competitive program provides for professional development grants to colleges, or
tribes or LEAs in consortium with colleges, to train Indian individuals as teachers or
other professionals. In addition, the IEA authorizes national programs for gifted and
talented Indian students, and also the National Advisory Council on Indian
Education, which advises the Education Secretary and Congress on Indian education.
Alaska Native Education Equity. Title VII, Part C, of ESEA130 authorizes
competitive grants to Alaska Native organizations, educational entities with Native
experience, and cultural and community organizations, for supplemental education
programs that address the educational needs of Alaska Native students, parents, and
teachers. Grants may be used for development of curricula and educational materials,
student enrichment in science and math, professional development, family literacy,
home preschool instruction, cultural exchange, dropout prevention, and other
programs.
ED Indian Education Funding. ED Indian education funding goes
primarily to public schools and related organizations. Less than a quarter of ED
Indian education funds is transferred to BIE schools (see Table 7, below). For most
ED Indian education programs, the funding pattern during FY2003-FY2007 showed
an increase from FY2003 to FY2004, a smaller increase from FY2004 to FY2005,
a decline from FY2005 to FY2006, and a recovery in FY2007 to amounts slightly
less than FY2005.
ED’s transfers to BIE are authorized chiefly under ESEA and IDEA. The two
largest set-asides for BIE schools come from the LEA grant program for
disadvantaged children under Title I, Part A, of ESEA, and the special education
grants to states under Part B of IDEA. Together these two set-asides account for
about 80% of ED Indian education funds transferred to BIE.
129 20 U.S.C., Chap. 70, Subchap. VII.
130 20 U.S.C., Chap. VII, Subchap. C.
CRS-29
Impact Aid is the largest single ED Indian education program, as Figure 3
illustrates. The second largest program is the Indian Education Act, especially its
formula grants to LEAs.
Figure 3. Distribution of ED Funding for Indian
Education Programs, FY2003-FY2007
100%
90%
80%
ED
70%
Transfers
to BIE
60%
50%
Other ED
40%
Indian
30%
Education
Act
20%
Impact
10%
Aid
0%
FY03
FY04
FY05
FY06
FY07
Source:
Table 7.
CRS-30
Table 7. Estimated Funding for Department of Education’s
Indian Elementary-Secondary Education Programs, FY2003-FY2007
($ in thousands)
Education Department (ED) Programsa
FY2003
FY2004
FY2005
FY2006
FY2007
ED Funds Transferred to BIE Pursuant to Statutes
209,109
219,076
220,706
217,111
217,774
Percent of ED Total
24%
23%
23%
23%
23%
ESEA Title I-A Grants to Local Educational Agencies
81,886
90,093
91,322
88,423
89,762
IDEA Part B Special Education Grants to States
80,459
81,617
83,546
86,306
86,306
ESEA Title II-A Improving Teacher Quality State Grants
14,581
14,577
14,510
14,635
14,365
ESEA Title IV-B 21st Century Community Learning Centers
7,145
7,317
7,565
7,323
7,129
IDEA Part C Grants for Infants and Families with Disabilities
5,360
5,486
5,442
5,388
5,223
ESEA Title I-B Reading First
4,968
5,120
5,208
5,146
5,093
ESEA Title IV-A Safe and Drug-Free Schools
4,750
4,750
4,750
4,750
4,750
ESEA Title II-D Educational Technology State Grants
5,115
5,085
3,646
2,001
2,007
ESEA Title VI-A-1 State Assessment Grants
1,900
1,950
2,000
2,000
2,000
McKinney-Vento Homeless Assistance Act Title VII-B
546
596
625
619
619
Homeless Children and Youth
ESEA Title VI-B Rural Education
418
420
427
422
422
ESEA Title I-B-4 Literacy through School Libraries
62
99
98
97
97
ESEA Title I-F Comprehensive School Reform
1,918
1,966
1,567
—
—
Other ED Funds for Indian Education
679,978
730,490
738,001
719,317
737,806
Percent of ED Total
76%
77%
77%
77%
77%
ESEA Title VIII Impact Aidb
502,737
551,457
559,457
545,454
563,761
ESEA Title VIII Impact Aid - Basic Support
472,111
495,861
503,166
515,813
519,712
ESEA Title VIII Impact Aid - Disabilities
21,685
21,393
21,222
20,731
20,731
ESEA Title VIII Impact Aid - Construction
8,942
34,203
35,069
8,910
23,318
ESEA Title VII-A Indian Education Actb
121,573
120,856
119,889
118,690
118,683
ESEA Title VII-A-1 Indian Education Act - LEA Grants
96,502
95,933
95,166
95,331
95,331
CRS-31
Education Department (ED) Programsa
FY2003
FY2004
FY2005
FY2006
FY2007
ESEA Title VII-A-2 Indian Education Act - Special
19,870
19,753
19,595
19,399
19,399
Programs
ESEA Title VII-A-3 Indian Education Act - National
5,201
5,170
5,129
3,960
3,953
Programs
ESEA Title VII-C Alaska Native Education Equity
30,798
33,302
34,224
33,908
33,908
Carl D. Perkins Vocational and Technical Education Act Title
14,903
14,938
14,929
14,780
14,780
I-D Native American Program
ESEA Title III-A-1 English Language Acquisition
5,000
5,000
5,000
5,000
5,000
ESEA Title I-B-3 Even Start
4,968
4,938
4,502
1,485
1,674
Total ED Indian Elementary-Secondary Education Programs
889,087
949,566
958,706
936,428
955,580
Source: U.S. Department of Education, Budget Service, unpublished tables, transmitted on various dates, 2003-2007.
Notes: Columns may not sum to totals due to rounding.
a. The number and letter sequence following each act’s initials or title is: title number - part number - subpart number.
b. Some grants go to BIE schools.
Abbreviations:
BIE — Bureau of Indian Education (U.S. Department of the Interior)
ED — U.S. Department of Education
ESE —
Elementary and Secondary Education Act
IDEA — Individuals with Disabilities Education Act
LEA — Local education agency (school district)
CRS-32
BIE Schools Under the No Child Left Behind Act
Amendments to ESEA by the No Child Left Behind Act (NCLBA)131 expanded
significantly ESEA’s requirements of schools receiving assistance under ESEA Title
I, Part A. The key provisions of ESEA amended by NCLBA concern
! student assessments and standards,
! positive school outcomes, as defined by “adequate yearly progress”
(AYP),
! highly-qualified teachers and qualified classroom paraprofessionals,
and
! accountability of states, school districts (LEAs), and schools for
AYP.
Under NCLBA, schools must make adequate yearly progress as measured by their
state’s standards-based assessments. Schools that fail to make AYP for two
consecutive years or more must go through a series of three accountability steps —
school improvement, corrective action, and school restructuring — each of which
includes certain actions and deadlines. The accountability steps proceed until the
school has achieved AYP for two consecutive years. (For full summaries of NCLBA
requirements, see CRS Report RL31284, K-12 Education: Highlights of the No Child
Left Behind Act of 2001 (P.L. 107-110) and CRS Report RL33371, K-12 Education:
Implementation Status of the No Child Left Behind Act of 2001 (P.L. 107-110).)
BIE-funded schools are generally subject to the key provisions of ESEA
amended by NCLBA, with some specific exceptions and options, described below.
BIE-funded schools are defined as LEAs in NCLBA, although the schools are not
subject to the jurisdiction of state educational agencies (SEAs) but rather to that of
the BIA.132 Many NCLBA statutory and regulatory requirements may be waived by
the Secretary of Education, and Indian tribes as well as SEAs and LEAs may request
waivers from the Secretary.133
Standards-Based Assessments. Assessments of schools and students
must be developed or adopted by the SEA and be based on the state’s “challenging
student academic achievement standards,”134 but the choice of assessments to be used
in BIE-funded schools depends on how the school is accredited. State-accredited
BIE schools must use either the state’s assessments or other appropriate assessments
approved by the Secretary of the Interior; BIE schools accredited by a regional
accreditation agency must use appropriate assessments, approved by the Interior
Secretary, that meet NCLBA requirements and are consistent with assessments used
by other schools in the state or region; and BIE schools accredited by a tribal
131 NCLBA’s amendments to ESEA, in titles I-IX of NCLBA, are codified at 20 U.S.C.,
Chap. 70, §§6301 et seq.
132 20 U.S.C. 7801(26)(C). BIA-funded schools’ definition as LEAs is limited by a
minimum size requirement.
133 20 U.S.C. 7861.
134 20 U.S.C. 6311(b)(3) and 6316(a)(1)(A).
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accreditation agency or a tribal education division must use the tribal agency’s or
division’s assessments if the Interior Secretary ensures that the assessments meet
NCLBA requirements.135 Assessment provisions related to testing limited English
proficient (LEP) students,136 and to federal tests under the National Assessment of
Educational Progress (NAEP),137 also apply to BIE-funded schools. (For a more
detailed discussion of NCLBA assessments, see CRS Report RL31407, Educational
Testing: Implementation of ESEA Title I-A Requirements Under the No Child Left
Behind Act.)
Adequate Yearly Progress. States, LEAs, and schools must demonstrate
AYP, as measured by standards-based assessments.138 Each state defines AYP for
its LEAs and schools.139 BIE-funded schools must also make AYP, but the definition
of AYP for BIE-funded schools is assigned to the Secretary of the Interior. The
Secretary of the Interior must define AYP using negotiated rulemaking, taking into
account the schools’ unique needs and circumstances, and the definition must be
consistent with NCLBA; or the Secretary may use the definition of the state where
the BIE-funded school is located.140 In either case a tribe or tribal school board may
seek a waiver of all or part of the Interior Secretary’s definition and use its own
alternative AYP definition, unless the Secretary of Education determines the
alternative definition does not meet NCLBA requirements.141
NCLBA requires that a state’s AYP definition must include “annual measurable
objectives” for public school students, not only as a whole, but also for certain
subgroups: economically disadvantaged students, students from major racial and
ethnic groups, students with disabilities, and LEP students.142 A state’s annual
objectives must set a minimum percentage of students scoring at a proficient or
higher level on the state’s assessments of math and reading achievement, and this
minimum percentage must be applicable to each of the student subgroups.143 The
minimum percentage must be increased at least once every three years,144 and must
rise to 100% of pupils scoring proficient or higher by the end of SY2013-2014.145
BIE-funded schools are also subject to these requirements for annual measurable
135 20 U.S.C. 6311(m).
136 20 U.S.C. 6311(b)(3)(C)(ix)(III) and 6312(b)(1)(A). Such students are sometimes
referred to as English language learners (ELLs).
137 20 U.S.C. 6311(c)(2) and 6312(b)(1)(F).
138 20 U.S.C. 6311(b)(2).
139 20 U.S.C. 6311(b)(2)(C).
140 20 U.S.C. 6316(g)(1).
141 20 U.S.C. 6316(g)(1)(B).
142 20 U.S.C. 6311(b)(2)(C). The subgroups must be of a minimum size to “yield
statistically reliable information.”
143 20 U.S.C. 6311(b)(2)(G)(iii).
144 20 U.S.C. 6311(b)(2)(H)(iii).
145 20 U.S.C. 6311(b)(2)(F).
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objectives, disaggregated assessment data, and minimum percentages of students
scoring proficient or above, for AYP determinations, although (as noted above) the
BIA takes the role of the state for these schools. (For further discussion of AYP
under NCLBA, see CRS Report RL32495, Adequate Yearly Progress (AYP):
Implementation of the No Child Left Behind Act.)
Teachers and Paraprofessionals. NCLBA requires states and LEAs to
ensure that teachers are highly qualified, and that school paraprofessionals meet
certain qualification requirements, by various deadlines.146 BIE-funded schools are
subject to this requirement as well. (For further discussion of teacher requirements
in NCLBA, see CRS Report RL33333, A Highly Qualified Teacher in Every
Classroom: Implementation of the No Child Left Behind Act.)
Accountability. Schools failing to make AYP for two consecutive years or
more enter a series of steps intended to enable them to make AYP. The first step,
“school improvement,” includes a school plan, technical assistance, and supplemental
education services (SES) from the LEA, public school choice for students in the
school failing to make AYP, and LEA notification to the school’s parents.147 The
second step, “corrective action,” continues school improvement actions but must also
include at least one of the following actions: replacement of school staff, a new
curriculum, a decrease in school management’s authority, advice from outside
experts, extended school day or year, or internal school reorganization.148 The third
step, “restructuring,” continues school choice, SES, and planning, but requires the
LEA to implement one of the following: making the school a public charter school,
replacing all school staff, contracting school operations to an outside entity, a
takeover by the SEA, or other fundamental reforms in school governance.149 States
must review LEAs annually to determine if their schools are making AYP.150
NCLBA makes BIE-funded schools subject to these three accountability steps,151
but with some exceptions or added options. BIE-funded schools are excluded from
the requirements for public school choice, SES, and annual state reviews.152
Responsibility for development of the school plan in the school improvement step,
and for all corrective actions and restructuring, is assigned to the BIA for BIE-
operated schools and to the school board for BIE-funded contract and grant
146 20 U.S.C. 6319.
147 20 U.S.C. 6316(b)(1)(E), (b)(3)-(6).
148 20 U.S.C. 6316(b)(7)(C)(iv).
149 20 U.S.C. 6316(b)(8)(B).
150 20 U.S.C. 6316(c).
151 20 U.S.C. 6316(g)(2).
152 Ibid.
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schools.153 Technical assistance for both types of schools, however, is the BIA’s
responsibility.154
BIE-Funded Schools Accreditation Sanctions. Title X, Part D, of
NCLBA amended one of the major BIA education laws, the Education Amendments
of 1978 (see “Statutory Authority for BIE Elementary-Secondary Schools,” above),
to subject BIE-funded schools that are neither accredited nor candidates for
accreditation, by certain accrediting agencies, to actions similar to ESEA’s
accountability actions.155 Parallels include school plans, technical assistance, parental
notification, school choice options to transfer to other BIE-funded schools or public
schools (with transportation provided), staff or administrative changes, tribal option
to take over BIE-operated schools, and school operation by an outside contractor.156
These sanctions must be waived, however, if the school’s failure to become
accredited, or be a candidate for accreditation, is due to certain circumstances beyond
the school board’s control, such as a significant decline in financial resources, a
natural disaster, or the poor condition of the school’s facilities, vehicles, or other
property.157
Indian Education Issues
Most significant issues for Indian education concern NCLBA provisions in the
ESEA that affect both public and BIE schools. According to the BIE, 70% of BIE
schools failed to make AYP in SY2004-2005;158 this compares with 26% of all U.S.
schools that failed to make AYP in the same school year.159 Congress is currently
addressing the reauthorization of NCLBA, and the National Indian Education
Association (NIEA) has proposed a number of amendments to NCLBA provisions
in ESEA on many topics, discussed below.160
153 20 U.S.C. 6316(g)(3)-(4).
154 20 U.S.C. 6316(g)(3).
155 Native American Education Improvement Act of 2001, P.L. 107-110, Title X, Part D,
§1042, Act of January 8, 2002, 115 Stat. 1439, 2007, as amended; 25 U.S.C., Chap. 22,
§§2000 et seq.
156 25 U.S.C. 2001(b)(3), (7)-(8).
157 25 U.S.C. 2001(b)(8)(B).
158 U.S. Department of the Interior, Bureau of Indian Affairs, Budget Justifications and
Performance Information, Fiscal Year 2008: Indian Affairs (Washington: The Department,
2007), p. IA-EDUC-7. For SY2005-2006 the percentage failing to make AYP is 69% (BIE,
telephone conversation, October 4, 2007).
159 U.S. Department of Education, National Center for Educational Statistics, State
Education Reforms, Table 1.6, available at [http://nces.ed.gov/programs/statereform/
saa_tab6.asp? referrer=tables ]. According to this table, state percentages of schools failing
to make AYP vary from 2% (Wisconsin) to 66% (Hawaii).
160 See National Indian Education Association, “National Indian Education Association’s
Proposed Amendments to the Elementary and Secondary Education Act,” March 30, 2007,
(continued...)
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Bureau of Indian Education Issues
BIE issues include the Administration’s reorganization of the BIE school system
(proposed in response to the widespread failure among BIE schools to make AYP),
the definition of AYP for BIE schools, and the assessments used to measure AYP in
BIE schools.
BIE Reorganization. BIE’s organization had consisted of a central office; 23
education line offices (ELOs), each run by an education line officer, which oversee
schools in a particular area; and the 170 individual schools, each with its school
board. The Administration argues that BIE had too few high-level administrators in
the central office and the ELOs, too few educational specialists in the ELOs to assist
schools, and an imbalance in the numbers of schools assigned each ELO, and that
these insufficient management resources made it impossible to oversee schools
closely enough to bring them up to AYP. The BIE reorganization involves adding
high-level “educational, financial, and administrative managers” at the central office,
upgrading ELOs “to attract skilled educational professionals,” rearranging ELO areas
to balance the number of schools assigned each ELO, reducing the number of ELOs
(currently 21), and adding more “specialists in education program delivery, special
education, residential programs” and other skills to better assist BIE schools.161 A
large number of Indian tribes have objected to the reorganization, arguing that the
BIE did insufficient consultation with tribes before beginning to implement the
reorganization, that rearrangement of ELO areas would in many cases move an ELO
too far from the communities whose schools the ELO was overseeing, that funds
were being transferred from education programs to finance the reorganization, and
that spending the reorganization funds at the school level would better assist schools
to make AYP. In New Mexico and the Dakotas, tribes got federal district courts to
suspend BIE reorganization.162
Questions for Congress on the BIE reorganization may include whether BIE
schools will benefit more from increased administrative resources or increased
spending at the school level, whether the reorganization would improve schools’
chances of making AYP, and whether to specify BIE structure in the reauthorization
of the major statute governing BIE education programs, the Education Amendments
of 1978.163
160 (...continued)
available at [http://www.niea.org/].
161 U.S. Department of the Interior, The Interior Budget In Brief, Fiscal Year 2008
(Washington: The Department, 2007), p. DH-49.
162 Martin Salazar, “Tribes Sue Over Restructuring; Federal Officials Want to Revamp
Agency That Oversees Indian Education,” Albuquerque Journal, October 16, 2006, p. 1;
and David Melmer, “Schreier: Reorganization Must Stop,” Indian Country Today, August
2, 2006, p. B1.
163 See “Statutory Authority for BIE Elementary-Secondary Schools,” above.
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Definition of AYP for BIE Schools. As noted above, under ESEA as
amended by NCLBA, the Secretary of the Interior defines AYP for BIE schools, but
a tribe or school board may seek a waiver and an alternative AYP definition.164 The
NIEA seeks to allow not only tribes or school boards but also consortia of these
entities to seek AYP waivers; to create an approval process with deadlines (with
automatic approval if the Secretary misses a deadline), written notifications and
responses, and explicit explanations for disapprovals; and to eliminate the Secretary
of Education in the approval of an alternative AYP definition.165
BIE School Assessments. As noted above, the assessments applied to BIE
schools depend on the accrediting agency. The NIEA proposes that BIE schools
granted AYP waivers be allowed to choose the assessments they think appropriate
for their definition of AYP.166
Indian Education Issues for Public Schools
Indian education issues in public schools include the definition of AYP,
consultations with Indian tribes, the role of Indian cultures and languages, teacher
development, and the uses of grants under the Indian Education Act (IEA).167 Many
of the issues raised for schools with Indian students may overlap with NCLBA issues
for all students; see CRS Report RL33749, The No Child Left Behind Act: An
Overview of Reauthorization Issues for the 110th Congress, for discussion of these
wider issues.
Definition of AYP. Like many other educators, Indian educators have
proposed use of “growth models” to measure achievement of AYP.168 See CRS
Report RL33032, Adequate Yearly Progress (AYP): Growth Models Under the No
Child Left Behind Act, for analysis of the issues raised by growth models.
Consultation with Indian Tribes. NIEA proposals would add requirements
or commitments that SEAs and LEAs consult with Indian tribes under numerous
provisions in ESEA as amended by NCLBA. SEA consultation with tribes is
proposed during SEA development and implementation of state plans required by
ESEA, on state practitioner committees required to advise the state in its performance
of its ESEA duties, and during the development of activities under state teacher
quality enhancement grants. LEA consultations with tribes are proposed during the
development and implementation of the LEA plans required by ESEA, in the
development of school improvement plans, and for the plans, applications, and
164 ESEA, §1116(g) (20 U.S.C. 6316(g)). As yet, no AYP waivers have been granted,
although BIE reports that one consortium of schools has applied and at least one other
school is interested (telephone conversation, October 4, 2007).
165 NIEA, “Proposed Amendments,” op.cit.
166 NIEA, “Proposed Amendments,” op.cit.
167 The Indian Education Act is Title VII, Part A, of ESEA.
168 NIEA, Briefing Papers, “Policy Recommendations on Reauthorization of No Child Left
Behind, March 6, 2006,” available at [http://www.niea.org/sa/uploads/policyissues/18.42.
NIEABriefing Papers_06.pdf].
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activities under LEA teacher quality enhancement grants. NIEA also proposes that
Indian parents receive special attention in each LEA’s required annual evaluations
of its parental involvement policy.169
Indian Cultures and Languages. Indian educators and parents have for
many years argued for greater inclusion of Indian cultures and Indian languages in
both public and BIE schools, as subjects in curricula and (for languages) as media of
instruction. NIEA proposes amending ESEA to incorporate “activities that meet the
unique cultural, language, and educational needs of Indian students” in LEA
improvement plans. It also proposes strengthening the emphasis on Indian cultures
and languages in IEA programs (see below).170
Teacher Development. Indian educators argue that there are unmet needs
for more Indian teachers, and for improving non-Indian teachers’ skills in teaching
Indian students. NIEA proposes amending ESEA’s LEA teacher quality
enhancement subgrants to add to the grants’ uses the recruitment and preparation of
teachers who are Indian or live in Indian communities or are likely to succeed at
teaching Indian students, and also professional development activities that improve
teachers’ ability to meet Indian students’ unique needs.171
Indian Education Act (IEA) Programs. Indian education proponents have
complained that IEA formula grants (see program description in “ED Indian
Programs for Public Schools,” above) were being used by LEAs for general remedial
programs for Indian students and not for Indian language or cultural needs, and that
IEA funding was insufficient.172 The NIEA’s proposals would restrict IEA’s
purposes to meeting Indian students’ unique cultural and language needs and would
delete current provisions referring to state standards and the general education of
Indian students. They would authorize Indian language immersion programs,
traditional language teachers, parental involvement, and technical assistance, and
would also make it easier for Indian tribes to apply for formula grants (where an LEA
does not) by lowering the percentage of Indian students the tribe is required to
represent. Finally, the NIEA proposals would increase the amount of appropriations
authorized for IEA, by 35% for formula grants (to $130 million) and by 42% for
other grants (to $34 million).
169 NIEA, “Proposed Amendments,” op.cit.
170 NIEA, “Proposed Amendments,” op.cit.
171 NIEA, “Proposed Amendments,” op.cit.
172 National Indian Education Association, Preliminary Report on No Child Left Behind in
Indian Country, October 10, 2005, available at [http://www.niea.org/sa/uploads/policy
issues/29.23.NIEAN CLBreport_final2.pdf].