Free Response to Motion [Dispositive] - District Court of Federal Claims - federal

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TRIBAL ALLOICATIONS BIA FISCAL YEAR BY 1999

U.S. SENATE, COMMITTEE INDIAN ON AFFAIRS, Washington, DC. The committee met, pursuant to notice, a t 11:35 a.m. in room 562, Senate Dirksen Building, Hon. Ben Nighthorse Campbell (chairman of the conamittee) residing. Present: Senators Carnpbel , Inouye, and Wellstone.

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STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM COLORADO, CHAIRMAN COMMITTEE ON INDIAN AFFAIRS

The CHAIRMAN. hearing of the Committee on Indian AtTairs Tlle will be in session. Grood morning, and I apologize for the delay. We have such problem whe it comes t o the change in plans for the f leadership, with a c o u p ~ o votes pending, as you know, and I had the conflicts. So Senlator Inouye, the vice chairman, and I are going to chair this hearir~lg,but we are going to try to move along as quickly as we can because both of us have other business we have to do. The Fiscal Year 1999 Interior Appro riations Act directed the Secretary of the Interior to form a task orce to look a t the method used by the BIA in allocating Tribal Priority Allocations [TPA] funds. The task force met a statutory deadline, and agreed to an allocation formula fbr $23 million in fiscal year 1998 TPA dollars. It also agreed to d~tvelopand refine a TPA allocation method that is more e uitable arid takes into account unmet tribal needs. The tas force ellcountered problems in determining what criteria are used by tlhe Bureau of Indian Af'fairs [BIA] in allocating TPA. I t also had pi.oblems measuring tribal needs and developing a formula that takes into account the many variations which exist in Indian country. The purpose of this hearing is to receive testimony from Federal and tribal representatives to the task force on their findings and the outcome of their meetings. Let me say at the beginning that I am not a supporter of what is called "means testing" of Federal funds to Indian tribes. Many of the programs and services provided to Indian tribes fulfill treaty and other commitnlents that the United States has made to the tribes. It is unacceptable for the Federal Government to plead budget constraints as a way to justify breaking these commitments

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OPENING STATEMENT of KEVIN GOVER, ASSISTANT SECRETARY - INDIAN AFFAIRS on TRIBAL PRIORITY ALLOCATION FUNDING in the FY 1999 BUDGET REQUEST FOR THE BUREAU OF INDIAN AFFAIRS before the COMMITTEE ON INDIAN AFFAIRS UNITED STATES SENATE February 26, 1998

to employment assistance to tribal courts to cr :dit assistance as well as core trust £unctions for real estate services. TPA does not i~lclude 3the1 Recuning Programs for the direct benefit of lndian people or for Indian lands or wtere a fi)rmull determines the dismbution of funding. It does not include Non-Recurring Programs whew h n d j are time limited or competitive grant type ~rojects. It does not include funds for Central or Ate;, Offices, or funds for Special Progranls and Pooled Overhead where the funding may be spent loc illy but remains under central control, or where costs are assessed for the whole BIA in a single charge like the GSA rents. to In FY 1993, Congress approved the cl~ange the BIA budget structure and the Tribal Priority Allocations name for the catego.ry of fundin1 that covered mbes and agency office costs. It is the category of funding over which tribe;, exelcise the broadest discretionary autho~ity. In 1995, Congress provided the BIA with !;pecifi.: replogramming authority that allows tribes to shift funds among the TPA categories in ac:corda ~ c u ith their unique priorities a i d needs. One hundred e I percent reprogramming is permi1:led wi:hin ' PA. This authority applies whether the lirograms are under compact, contract, or dehered t y the BIA. What is known as TPA is the T~ibeIAgency ?onion of the BIA budget over which [he tribes have been given a considerable amoun.1of authorit, by Congress. The sums of money referenced as TPA . . bage dollars are the sums that apply spec.ifical c to a particular tribe andlor the agency that serves the y hibe(s). The TPA base dollam became rhe ar iounts they are, as a result of many years of individual decisions related to the circumstilnces, r.eeds, and suppon for individual tribes and agencies. There that is no unique formula or cal~ulatic~n resulred in a tribe's TPA base. It was simply the transfer of what was the historic share o f a txibe or agenc y's funding into a category now called the TPA base. TPA is consistently given the lnumb~:r onc priority for increased funding by the tribes. This Administration has supported TI'A to he pc int of having TPA protected in the Bipartisan Budget Agreement of August 1997. C~nfusic~ns)out TPA Base Dollars A As with every mle, the TPA bast has excepti~ns.One element of the existing conhhion about TPA to base dollars, but not an exceptio;~~thr TPA base definition, is the formula based pr3grams. These and include: contract suppon, general assis~ance, road maintenance that have been moved into TPA. This was done at the request of tht: tribc s and by the concurrence of Congt:ss. However, consultations with the tribes hav,:: yet tc. dete~ mine amechanism to move this funding into the a-ibes' TPA base and these programs are still exec1:ted based on a needs formula.
, The most significant exception t ~the T?A b; se is the TribeIAgency portion of the budget that exists for Self-Governance tribes. The tribes Jpeta:ing under Self-GovernanceCompacts roay have nearly every portion of their share of B1.4 funciing usluded within their annual compact funding agreement. Since Self-Govemance Compacts are lunder: as a single line item within TPA, all of their funding, not just the TribdAgency share, will be fomrd in TPA. In reviewing one Self-Governance Tribe's compact !?om the Pacific Northwest, only 4(1percent of the funding in the annual compact funding agreement was TribdAgency related. For a :.imilar tribe that was not Self-Governance, its TPA base

Good morning, Mr. Chairman and members of the Committee. I am Kevin Gover, Assistant Secretary for lndian Affairs at the Department of the Interior. It is my pleasure to be here today to discuss Tribal Rioriry Allocation (TPA) funding in the Deparunent of the Interior, Bureau of Indian Affairs (BIA). I want to provide a little background on TPA and bring you up-to-date on the BIA's execution of the FY 1998 Appropriations Act guidance. Backgro~ind Tribal Priority Allocations on The evolution of TPA Funding is closely linked to the evolution of Indian Self-Determination. TPA exists because of consultation, patticipation and self-determination on the part of Indian tribes. Before the lndian Reorganization Act of 1934, there was no effort, expectation, or attempt include lndian people in decisions related to Funding Indian programs. Within the Indian eorganization Act, it states that "The Secretary of the Interior shall advise such mbe or its tribal council of all appropriations estimates or Federal projects for the benefit of the tribe prior to the submission of such estimates to the Bureau of the Budget and the Congress." A small beginning for consultation. President Nixon, by special message to Congress, called for a policy of Self-Determination, and in 1975, the Congress passed the Indian Self-DeterminationAct. The Act called for tribal participation in planning the m u a l BIA budget. From this approach to the involvement of mbes came what were known as "banded" programs, the predecessors to TPA. By the early 1980s, the BIA had refined the budget planning process and changed the name to the Indian Priority System (IPS). In 1992, the BlA Reorganization Task Force recommended the budget planning process be called the Tribal Budget System (TBS). IJnder the former IPS, tribes participated in budget planning for the TnbelAgency portion of the BIA budget. Under the TBS, tribes were given significantlygreater opportunity to participate in planning the entire BIA budget with access to considerable additional information. TPA was the subset of funding information that applied to the TribeIAgency portion of the budget under the Tribal Budget System. The money funded local, ongoing programs of a varied nature and ranged !?om scholatships

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funding would appear to be significantly less while each tribe could be receiving similar amounts of BIA funding. The confusion about what is in the TPA base funding and what other sources of BIA funding are provided to mbes has led to questions about the fairness of TPA fuudinding. During the FY 1998 appropriations process, the distribution of the President's requested general increase was debated at some length. A general increase to TPA is the tribe's most favored mechanism to receive additional funding. Given the discretion that a tribe can exercise over TPA funding with complete reprogramming authority, providing funds as a general increase is an efficient and effective way to get funding directly to reservation-based programs where it is most needed. The BIA has always distributed general increases pro ratadepending on the size of the TPA base. The tribes have accepted this as equitable and funds have been distributed quickly. Nonetheless, the issue of fairness and whether this approach meets tribal needs became a major concern of certain members of Congress. The FY 1998 TPA Task Force Section 118 of Public Law 105-83, the FY 1998 Interior and Related Agencies Appropriations Act, called for the creation of a task force to allocate remaining funds from the President's requested general increase after providing aminirnum funding level of$160,000 for each Federally r e c o - e e d tribe. The Task Force assembled and met during the first week of January 1998. They held their last meeting on January 29,1998. The Task Force cansisted of two Federal officials and two tribal officials fiom each of the 12 BIA Areas. The Task Force members were provided copies of the Appropriation Committees' and Subcommittees' bills and reports, and were tasked with addressing the Conference Committee directive "to consider the inequities in current TPA allocations and the disparate economic situations of the tribes." During the h t meeting, the Task Force discussed the need to develop a method and criteria for identifying unmet needs in Indian Counny. However, there was insufficient time to do so for distributing FY 1998 funds. The Task Force decided to divide the funds equally among Areas for their use in meeting unmet needs within the "people programs," which include: community development, social services, housing, and education. The justification for this option stems from a recommendation within the Joint Tribal/BIA/DOI Task Force 1994 report, which also addresses idationary increases. The issue of funding inequities and unrnet needs could then be addressed by the tribes in each Area during the redistribution and reprioritization of the Area's share. Following the Area meetings, the Task Force would reconvene to review and approve the Area funding plans. The Task Force mernbefi went back to their Areas and the resulting tribally-devised distributions proved to be enlightening. One-third of the Areas distributed funds equally to all tribes. One-third of the Areas developed a formula based on differing mixes of a base level of funding per tribe, a share based on enrolled population, a share based on land acreage, a share based on current level of TPA base funding, andlor a share based on members without work. The remaining Areas provided other ideas as the basis for distributing funds, such as the Tribe's priorities for Navajo, the level of

unmet needs developed in the F't' 1999 data base for Aberdeen, and a segment of the TPA base funding applied only to the people programs for Minneapolis. The overall Task Force voted to accept the Area proposals on January 29, 1998. The Task Force developed justi.8cation for the various options which wil be provided to this Committee. The Task Force also 11strongly that t h y needed to make a l o n d r m recommendation beyond simply accomplishing their FY 1998 distributiontask. The Task Force held $250,000 of the funds they were to distribute to fiuld a separate work group. The assignment for this work group is data to address funding inequities, unmet Tribal needs and to develop accurate and meanin~;ful funding shortfalls. More details of this recommendation are also included in the justification document attached.

FY 1999 Budget Summary
The 1999 budget request for the BIA is $1,844,136,000 in current appropriations, an increase of $142,145,000 above the 1998 enacted level. The budget stresses the resources tribes need to provide basic reservation programs and develop strong and stable governments, ensure accreditation of BIA schools, address critical infiashuc:ture needs, and meet the Secretary's trust responsibilities. The BIA continues to keep adminiskrtive costs low. In FY 1999, the BIA will continue: to operate as a highly streamlined and decennaltzed agency with maximum resources going to Tril,al programs. The BIA anticipates that more than half of the FY 1999 operating and construction budget will be spent directly by tribes that elect to operate various BIA progrms under self-determination contracts, grants, or self-governance compacts. Operation of Indian, Programs For FY 1999, the total request for he Operation of Indian Programs is $1,638,681,000, an increase of $1 10,093,000 over the FY 19913 enacted level. Closing Remarks TPA provides the principal source of funds for local units of government, most of which are small and lack independent resources I:O meet the increasing costs of Tribal government operations. Congressional funding levels in :I996 and 1997 caused Tribal governments and the BIA to fall behind in their ability to maintain services to Indian communities and families, necessitating full funding for the FY 1999 request. Tribes depend on the TPA budget activity for basic necessities and services such as law enforcement, child welfare, scholarships, natural resource management, and other programs critical to imprt:)ving the quality of life and the economic potential of the reservations. Congress has given t!he tribes the flexibility to prioritize funds among TPA programs according to their unique needs and circumstances. TPA supports the goals of Indian selfdetermination by providing tribe:; with the choice of programs provided as well as the means of delivery, either by the tribe or the BIA.

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For FY 1999, the TPA activity is funded at $791,210,000, an increase of $33,862,000 over the FY 1998 enacted level, which will help tribes address the unmet needs in these basic programs. Shortfalls in these programs have become particularly serious with the reductions in tdis activity since 1995. Program increases proposed in this budget submission include $640,000 for New Tribes to support an anticipated four newly acknowledged mbes as they begin to establish viable Tribal government operations.
An increase of %4,015,000is requested for Contract Support, which, when coupled with the $5

United States
OFFICE OF THE SEC Washi~~gton, W 4 D.C. 2 0

million internal transfer h m the Indian Self-DeterminationFund, will provide $9,015,000 over the 1998 request level. In FY 1997, the BIA was able to provide only 77 percent of contract support needs, which has resulted in significant concem, anger and hardship among tribes throughout Indian country. An increase of $3 million is proposed for Small and Needy Tribes to support the operation of viable Tribal governments. With the Congressional action during the FY 1998 Appropriations process of funding Small and Needy Tribes with the TPA increase, these funds will go entirely to Alaska to move those Native Alaskans toward the Task Force recommended level of $200,000.
An increase of $5 million is requested for Child Protection and Family Violence Prevention so that

Honorable Ben Nighthorse Campbell Chairman, Committee 0x1 Indian Affairs United States Senate Washington, D.C. 205 10 Dear Mr. Chairman: It 1s my pleasure to provbde answers to supplmental questions received following the Committee's February 26, 1998, over!i~~ght hearing on the Tribal Priority Ahcations Request for Fiscal Year 1999 administered by the Dq~artment the Interior's Bureau of Indian Affairs. of

Tribes can establish or enhance existing child abuse and neglect prevention, substance abuse prevention (a sigmficant direct cause of the Indian child abuse that exists) and family violence prevention programs. Tribes h m across the country voiced deep concem about child abuse at the National Budget Hearing in May 1997. Child abuse and neglect referrals for 1992-1996 average almost 30,000 annually. An increase of $2 million is requested for Welfare Assistance for welfareto-work programs, and an increase of $2 million is also requested for Adult Care Facilities Rehabilitation which will result in savings to the BIA when these facilities meet the State standards. This concludes my statement and I would be happy to answer any questions you may have concerning the TPA.

Sincerely,

'Kevin ~ o v e f " '

Assistant Secretary Indian Affairs

-

Enclosure

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Question 1. Can you explain the secalled 'historical methods" that the TPA nllocation is based on? Answer: What we have come to know as Tribal Priority Allocations (TPA) is the TribeIAgency portion of the BIA budget over which the tribes have been given a considerable amount of authority by Congress. The sums of money we refer to as TPA base dollars are the sums that apply specifically to a particular tribe andlor the agency that serves the tribe(s). The TPA base dollars amounts became what they are today because of an accumulation of many years of individual decisions related to the circumstances, needs, and support for individual tribes and agencies. There is no unique formula or calculation that resulted in a tribe's TPA base. It consists of the transfer of the historic share of a tribe or agency's funding into a category called the TPA base. As with every rule, the TPA base has exceptions. The formula based programs, such as contract support, general assistance, and road maintenance, are exceptions to the TPA base, although the funds were placed under TPA. The funding was moved to TPA at the request of the tribes and by congressional concurrence. However, consultations with the tribes have yet to determine a mechanism to move the funding into tribes' TPA base. All of these formula based programs are still executed based on a needs formula. The most significant exception to the TPA base is the TribeIAgency portion of the budget that exists for Self-Governance tribes. These uibes operate under selfgovernance compacts and may have nearly every portion of their share of BIA funding included within their annual compact funding agreement. Since selfgovernance compacts are funded as a single line item within TPA, all of their funding, not just the TribeIAgency share, will be found in TPA. .In reviewing one Pacific Northwest Self-Govetnance tribe's compact, only 40 percent of the funding in the annual compact funding agreement was TribeIAgency related. For a similar Tribe that was not Self-Governance, its TPA base funding would appear to be significantly less while each tribe could be receiving similar amounts of BIA funding. In addition to Self-Governance funding, there are other reasons that certain tribes have additions to their TPA base that appear to be inequitable. Tribal specific earmarks were included in some tribes' base allocations when TPA was created. If a tribe received unique funding as the result of legislation, it was elgible for inclusion within a hibe's base. Over time a variety of separate funding lines have been moved into TPA and into the base allocation of the benefitting tribes at the request of the tribes and concurrence of Congress. The evolution of TPA funding is closely linked to the evolution of Indian Self-

Determination. TPA exists because of consultation, participation and selfPrior to the Indian ReorganizationAc t determination (1x1the part of Indian Tri of 1934, there was no effort, expectati or attempt to include Indian people in decisions related to funding lnclianprograms. The Indian Reorganization Act says, "The Secretary of the Interior shall advise such tribe or its tribal counsel of all appropriations estimates or Federal projects for the benefit of the aibe prior to the submissions of such estimates to the BIA of the Budget and the Congress." This was the beginning of consultation with tribes on funding.

7.

President Nixon, by special message to Congress, called for a policy of SelfDetermination, and in 1975, the Congress passed the Indian Self-Determination Act. The ACI;calls for tribal participation in planning the annual BIA budget. From this approach of involving tribes, in the budget planning process, came 'banded" programs, the predecessors to TPA. By the early 1980s, the BIA had refined the budget planning process and cbanged the name to the Indian Priority System (IPS). In 1992, the BIA Reorganization Task Force recommended the budget planning process be expanded to include additional program elements for tribal consultationand renamed Tribal Budget System (TBS). Under IPS, tht: tribes participated in budget planning for the TribeIAgency portion of the BIA budget only. Under the TBS, tribes had the opportunity to participate in planning die entire BIA budget and had access to considerable additional information than they had in the past. TPA was the subset of funding information that applied to the TribeIAgency portion of the budget under the Tribal Budget System. The ' P A monies provide funding for local ongoing programs of a varied nature ranging from scholarships to employment assistance to tribal couts to credit assistance. Not included were: Other Recurring programs for the direct benefit of Indian people or for Imlian lands, or where formula d e t e m k d the distribution of funding; Non-Recurring programs where funds were time lmtd or competitive iie grant type projects; funds for Central or Area Offices; and funds for Special Programs am1 Pooled Overhead where the funding may be spent locally but remains under central conuol, or where costs are assessed for the whole BIA in a single charge like the GSA rents. In FY 1993, (2ongress approved the BIA budget structure change and the name of Tribal Priorify Allocations for the category of funding that covers tribes and agency office costs. It was, and is, the category of funding over which tribes can exercise the broadest discretionary authority. In 1995, Congress provided the BIA with specific reprogramming authority that allows tribes to shift funds among the in TPA categori~zi accordance with their unique priorities and needs. One hundred percent reprogramming is permitted within the TPA category. This authority applies whether the programs are under compact or contract or delivered by the BIA.

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United States Department of the Interior
BUREAU OF I N D M AFFAIRS
W-a

by Questions S~llbmitted Chairman Ben Nighthorse Campbell of the Committee on Indian Affairs, United States Senate

D.C. O w 0

I*

UPLILfILLTO

MAR 3 5 1998

Question 1: Please review the history of the United States providing funding to Indian tribes for "basic govenunent services". Answer: The Bureau of Indian AfFairs (BlA) is the primary agency of the Federal Govenunent charged with the responsibility to administer Federal Indian policy and to discharge tne Federal trust Federal responsibility for American Indian tribes, Alaska native villages and tribal org&tions. Indian policy and the trust respc~nsibility derived from the special legal and political relations hi^ ate between the tribes and the ~edcral government.
This unique [legal and political] relationship is rooted in American history. Much of Federal Indian policy evolves around this "special" relationship which is often broadly expressed in terms of legal duties, moral obligations and expectations that have arisen from the historical dealings between tribes and theFederal Government. 1 1the nmowzst sense, the special relationship is described as a trust relationship between a Trustee and the Beneficiary. The evolution of the trust doctrine over time is primarily the result of U.S. Sugtreme Court decisions. The Cow's literal references to a "guardianward" relationship in several cllses has served as the conceptual basis for the existence of the trust relationship domine today. While the Supreme Court decisions fell short of defining all the attributes of an enforceable trust respor~sibility,the U.S. Constitution itself suggests the Nation's implicit decision to place Indian affairs under Federal control. See, e.g., Article I, 42,cl. 3 which expressly delegates to "the Congress. . the power.. . to regulate commerce withforeign mtiom, and among the several slates, and with Incl'ian tribes."

acco 2100

Honorable Ben Nighthorse Campbell

chairman
Committee on Indian Affairs United Slues S e m e Washington, D.C. 205 106450
Dtar Mr. Chauman;

Thank you for your letter of Iswary 13. 1998. to the S c c r e t q of the Interior ooncrming the y distribution of h d i n g for Tribal Priority Allourions (TPA)to Tribes. h w u difficult to m respond to all of your questions; however, we have enclosed our response and will continue to provide information in response to yow requests f?om the hearing before your Committee on
February 26.

.

Sincerely,

lj""
Deputy Commissioner~f
Enclosure
A3 i f kn

As a source of Federal power, Congress set the basic framework of Federal Indian policy in enacting the Trade and Intercourse Acts passed between 1790 and 1834. The central policy of the Acts was to subject all interaction between Indians and non-Indians to Federal control The Acts prohibited non-Indians kom acquiring Indirm lands, except with the specific approval of Congress Trading with Indians was made subject to Federal regulation. The underlying objective of this early Federal policy was to protczt Indians against ulcursions by non-Indians, since exploitation of Indials was one of the major causes of fighting and conflict between Indians and non-Indians on the western frontier. In f a , the Secretary of War was sstablislled in 1784 with its primary mission to "negotiate treaties with the Indians" and with the armed militia at the disposal of Indian commissioners. Over the next 50 years, laws regulating trade behveen non-Indians and Indians were added to the books and a network of Indian agents and subagent;$was established.
When trade resuidions proved ineffective in maintaining peaceful relations between Indians and their neighbors, Federal Indian polit::y evolved into the systematic forced removal of Indian groups from choice eastern lands to the wilderness west of the Mississippi. The Indian Removal Act of 1830 institutionalized the forced removal of Indians. The most notable removal occurred among the Five C i d i d Tribes who were taken from their homes in the southeastern states and marched along the infamous "Trail of Tears" to vvhat is now Oklahoma.

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President Nixon by special message to Congress called for a policy of Self-Determination, and in 1975, the Congress passed the Indian Sef-Determination Act. The Act called for tribal participation in planning the annual BIA budget, From this approach of involvement of tribes came "banded" programs, the predecessors to TPA. By the early 19809, BIG had refined the budget planning process and changed the name to the Indian Priority System (IPS). In 1992, the BIA.Reorganization Task Force recommended the budget planning process be called the Tribal Budget System (TBS). Under IPS, the tribes participated in budget planning for the TriWAgency portion of the BIA budget. Under TBS,tribes had the opportunity to participate in planning the entire BIA budget with access to considerable additional information. TPA was the subset of hnding information that applied to the TriWAgency ponion of the budget under the Tribal Budget System. The monies provide hnding for local ongoing programs of a varied nature ranging from scholarships to employment assistance to tribal courts to credit assistance. Not included were: Other Recurring programs for the direct benefit of Indian people or for Indian lands, or where formula determined the distribution of funding; Non-Recuning programs where h d s were time Limited or competitive grant type projects; hnds for Central or k e a Offices; and h d s for Special Programs and Pooled Overhead where the funding may be spent iocally but remains under central control, or where costs are assessed for the whole Bureau in a single charge like the GSA rents. In FY 1993, Congress approved the BIA budget structure change and the name of Tribal Priority AUocations for the category of funding that covers tribes and agency office costs. It was and is the category offimding over which tribes could exercise the bioadest discretionary authority. In 1995, Congress provided BIA with specific reprogramming authority that allows tribes to shift finds among the TPA categories in accordance with their unique priorities and needs with one hundred percent reprogramming permitted within TPA. This authority applies whether the programs are under compact or contract or delivered by the BIA. So rather simply what we have come to h o w as TPA is the TribdAgency portion of the BIA budget over which the tribes have bem given a considerable amount of authority by Congress. The sums of u s money we refer to as TPA base dollars are the s m that apply specifically to a particular tribe andlor the agency that serves the tribe(?.). The TF'A base dollars became the amounts that they are as the accumulation of many years of individual decisions related to the circumstances, needs, and support for individual uibes and agencies. There is no unique formula or calculation that resulted in a tribes' TPA base. It was simply the transfer of w h was the historic share of a tribe or agency's hnding into s category now called TPA base. every rule, TPA base has exceptions. One element of the confusion, but not an exception to the TF'A base ddnition, is the fonnula programs such a s contract support, general assistance, and road maintenance that have been moved into TPA. This was done at the request of the tribes and concuncnceof Congress. However, consultations with Ihe tribes have yet to determine a mechanism to move this funding into tribes' TPA base and these programs are still executed based on needs formula.
As with

funding included within their compact annual fundii[g agreement. every portion of their share of BIPL Since Self-Governance Compacts are hn6ed as a single line within T P 4 all of their &I.ding, not just the TribetAgency shafe, will be lbund in TPA. In reviewing one Self-Governance Iribe from the Pacific Northwest, only 40 perc:~:nt of ;he funding in the compact annual hnding a1:reement was TriWAgency related. For a similar Tribe that was not Self-Governance, its TPA base fi~nding would appear to be significantly less while each tribe could be receiving similar amounts of 111Afunding. Question 3: Is "outside" (i.e. n,on-federal) income used as a factor in m a h y TPA distributions? Is it consistent with the special tlust relationship the U.S. with tribal governments to use other has sources of tribal income in determining such allocations? Answer: Tribal sources of inconfeare nat used in detemning a Tribe's TPA base d~s~ribution. The B1A is not authorized to require !lie presentation of such information and has no way oCknowinghow much outside income a Tribe has, Howcver, some Bureau programs to indtviduals are needs-based, such as General Assistance, Housing Irnprobement Program, and Scholarships. It could be consistent with thc specie1 trust relationship to consider other sourccs of income in determining TPA distributions. In discussions with several Tribal leaders that have successful Tribal an enterprises, they would not 0bjw.t to reductions in their TPA hnding provided that s , ~ c h act does not affect the special trust relationship and the funds go to less fortunate Tribes. Question 4: Tribal trust asse1.i and treaty.prutected assets warrant special protection, both as a practical matter and as a mattsr of federal law. What is the Department's opinion as to how they ought to be treated in the TPA ~mlculbtion,fat all? Answer: Tribal trust assets artd treaty-protected assets should not be considered In the allocation of TPA hnds. Question 5: How were tinliquidated and/or unexploited assets and resources treated in detemirning these early allocation methodologies? Answer: Unliquidated and unexploited assets and resources were not considered in any allocations as far as we know. Question 6: What about individual Indian income? For example, what if a tribe was "poor" but individual tribal members wers "wealthy"? Should this enter the equation? Answer: Individual Indian programs are available dependent on the individual s needs whether provided by a Tribe or the BIA. Man)ofthe programs within the categories of Hutnan Services and Education are intended for individuals with specific needs. If an individual has sufficient income or wealth, they are not eligible for such programs and, therefore, the tribe may not receive hnding for the program

The most significant exception to TPA base being the TribdAgency portion of the budget exists for Self-Governance tribes. These vibes operating under Self-Governance Compacts may have nearly

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Filed 05/02/2007

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Alternatively,cenain ftnds chat are intended to benefit all Tribal members such as Tribal Government, I'ublic Safely and Justice Law Enforcanent, or Road Maintenance, do not exclude individual Indians with wealth tiom benefits. This is because if the benefits accrue to one, they =me to all.
Question 7: Please describe the variety and nature of services provided by tribes through the TPA mechanism.

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A complete listing of TPA programs and a description of the services is included in the BIA Budget JustiGration (Green Book) for any panicular fiscal year. The following is a brief outline and description of programs in TPA:

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RESOURCES MANAGEM31NT Natural Resources, Generail staff for ncltural resource programs Agriculture technical assistance tor farmer and ranchers A*C. Extension Services advise on stdte-of-the-art agriculture techniques Forestry protect and enh~u~ce re:;ources foresl Water Resources - suppon:s; management and development of reservation water resources Wildlife & Parks - supports tribal needs in fisheries, yldlife and recreation Minerals and Mining - support mineral and mining activit~es
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TRIBAL GOVERNMENT

Community Services, General technical assistance for contracting Other Aid to Tribal Government suppon tribal government functions Self Governance Compacts -all compacted programs New Tribes - assistance for newly recognized Tribes ISDFund OJew/Expanded Contracts) contract support for new contracts Contract Suppon direct expenses and overhead for assuming a BIA program Tribal Courts suppon and technical assistance to tribal courts Small and Needy Tribes funds for Tribes under 1.500 in enrollment and $160,000 in funding

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TRUST SERVICES Trust Services, General staff to protect and conserve trust resources Other Rights Protection protect tribal rights under treaty or statute Real Estate Services - real propeny muiagement, coungling, and planning sewices R a Estate Appraisals en!;ure fair market value from real estate transactions el Environmental Quality Senices - dssistmce to comply with environmental and cultural Laws m C A Programs coordinate and consult with other federal and Alaska agencies ANCSA Historical and Cemetery Sites - certify locations of historic places and cemeteries

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Question 8: When was the most recelit inventory of tribal needs conducted relative to avalable TPA funds? Aoswer: During the FY 1SG9 budget preparation process, the Tribes were asked t o request hnding for unmet program needs. However, some Tribes did not believe this was a worthwhrle exercise and did not participate Also, there was no standard definition of needs, or types of needs, provided Question 9: Does the Depmment coniuct an ongoing assessment of tribal needs? Answer: To some extent, in as much as programs are based on individual eligibility for hnding such as G n r l Assistance, Housir~g eea Improvements, and Scholarships The Tribal Priority Allocation task force has recommended thatt BIA with the Tribes establish a standard assessment technique and conduct such assessments. 'The Bureau intends to follow this recommendation.

HLlMAN SERVICES

Senices to Children, Elderly, & Families supports social service staff Indian Child Welfare Act protects Indian children and prevents family separation Welfare Assistance financial assistance to needy families, childrepand provide institutional care Child Protection and Family Violence Prevention protection of Indian children Housing Improvement Program - improve substandard housing and house homeless

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EDUCATION Scholarships grants based on need for accredited post secondary studies Adult Education provides basic education and skills for job placement TCCC'S Supplement to Grants grant to TCCCs according to tribal priorities Johnson-O'Malley Assistance Grants supports public schools educating Indian children

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PUBLIC SAFETY AND NSTICE Law Enforcement - supports reservation law enforcement and detention programs Community Fire Protection suppons fire staff, training and equipment

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COMMUNITY DEVELOPMENT Direct Employment provides job placement services and counseling Adult Vocational Training testing, counseling, guidance on vocational training Economic Development assistance in acquiring loans and grants Road Maintenance maintain reservation road systems

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