Introduction

Congress has authorized the Bureau of Indian Affairs (BIA) within the Department of the Interior (DOI) to manage various programs for federally recognized tribes (hereinafter tribes).¹ The Snyder Act of 1921 authorizes BIA to operate programs, and spend federal funds, for the benefit and assistance of tribes and individual tribal members throughout the United States.² After centuries of shifting federal policies toward tribes, in 1975 Congress passed the Indian Self Determination and Education Assistance Act (ISDEAA).³ ISDEAA outlined federal policy on tribal self-determination, including the "effective and meaningful participation by the Indian people in the planning, conduct, and administration of" programs and services.⁴

While the Snyder Act and ISDEAA provide the primary budgetary authorities for BIA, numerous statutes, court decisions, treaties, and other authorities guide the agency. BIA is the principal agency of the federal government charged with administering tribal policy and programs to fulfill the federal trust responsibility. The federal trust responsibility is a legal obligation under which the United States, through treaties, acts of Congress, and court decisions, "has charged itself with moral obligations of the highest responsibility and trust" toward tribes.⁵

This report provides an overview of BIA's programs, discretionary appropriations, and budget processes, with the goal of informing Congress's consideration of BIA's budget.⁶ This report starts with a brief introduction to BIA's authority, programs, and organization. It also discusses how BIA and tribes deliver BIA programs and services to tribal members. The report then provides an overview of BIA discretionary appropriations, including appropriations accounts and budget formulation and execution processes. Finally, the report outlines potential considerations for Congress regarding the form of BIA appropriations, as well as funding flexibility, oversight, and allocation.

BIA Overview

Authority and Organization

With its roots dating back to the Continental Congress, BIA is the oldest bureau within DOI.⁷ In 1824, then-Secretary of War John C. Calhoun established the Office of Indian Affairs (OIA) within the War Department. In 1832, Congress officially established a commissioner to oversee OIA as a bureau of the War Department.⁸ In 1849, Congress transferred OIA to the newly established DOI.⁹ DOI formally adopted the name Bureau of Indian Affairs in 1947.¹⁰ BIA is one of DOI's "Indian Affairs" bureaus or offices, which also include the Bureau of Indian Education (BIE), the Office of the Special Trustee for American Indians (OST), and the Office of the Assistant Secretary of Indian Affairs (ASIA).¹¹ The BIA Director reports to ASIA.

In the late 18^th and early 19^th centuries, Congress enacted laws regulating trade between Indians and non-Indians, and a network of federal Indian agents was established.¹² This network is the foundation for the current BIA organization. Similar to several other DOI agencies, BIA has a three-tiered organizational structure.¹³ It has a central (national) office in Washington, DC, and 12 area (regional) offices that oversee 85 agency (field) offices. These offices deliver programs and services to tribal communities. Figure 1 shows the central office and 12 regional offices.

Figure 1. Bureau of Indian Affairs (BIA) National Map Map depicts BIA Central Office and Regional Offices

Source: Department of the Interior (DOI), Bureau of Indian Affairs (BIA), "Budget Justifications and Performance Information Fiscal Year 2024, Bureau of Indian Affairs," p. IA-GS-6, at https://www.bia.gov/sites/default/files/dup/inline-files/bia_2024_greenbook.pdf. Notes: This map does not depict BIA's 85 agency (field) offices. Also, Hawaii is not shown, as Native Hawaiians are not federally recognized.

Programs

According to BIA, the agency's mission is "to enhance the quality of life, to promote economic opportunity, and to carry out the responsibility to protect and improve the trust assets of American Indians, Indian tribes and Alaska Natives," including managing tribal trust lands.¹⁴ In 2023, BIA served 574 federally recognized tribes with a service population of nearly 2 million American Indians and Alaska Natives (AI/AN) in tribal communities nationwide.¹⁵

BIA programs encompass a wide range of activities authorized by numerous treaties, court decisions, and legislation. BIA's mission initially focused on promoting tribal settlement on defined reservations and cultural assimilation.¹⁶ BIA programs currently support tribal social services, economic development, law enforcement, emergency management, road and dam infrastructure, natural resource management, and probate, among others. BIA also manages the 56 million surface acres and 59 million acres of subsurface mineral estate held in trust by the United States for tribes and individual tribal members.¹⁷ In addition, BIA provides funding for an array of tribal government programs and services.

Delivery of BIA Services

BIA Versus Tribal Delivery of Services

BIA programs can be provided directly by BIA or administered by tribes. ISDEAA enables tribes to manage certain federal programs using federal funds.¹⁸ Under ISDEAA, tribes can request the authority to conduct certain agency programs or activities that otherwise would be conducted by BIA. If granted, tribes manage the programs or activities through self-determination contracts or self-governance compacts, hereinafter referred to as ISDEAA agreements.¹⁹ BIA can provide federal funding to tribes to execute services that BIA previously provided as long as tribes do not assume an inherently federal function.²⁰ BIA must provide tribes entering into an ISDEAA agreement with a tribal share, or the portion of all funds and resources that the tribe is taking over under the ISDEAA agreement.²¹ Currently, tribes can choose to manage some federal services or programs through ISDEAA agreements, continue receiving BIA services from the agency (direct service tribes), or choose a mix of the two options depending on the service or program. As of March 2020, 569 of 574 tribes had an ISDEAA agreement with DOI.²²

Tribal Population Eligible for BIA Services

Federal agencies collect population data, including on AI/AN communities, to formulate budget requests, allocate resources, and provide services. There is no uniform definition of the AI/AN population; therefore, federal agencies use various definitions. For example, some federal agencies rely on the U.S. Census Bureau, which uses self-identification as AI/AN by race, whereas BIA relies on tribes to report individual tribal members located on or near a reservation to determine the service population.²³ The service population is a tribe's estimate of all American Indians and Alaska Natives who are living on or near its reservation or community that are eligible to receive services from BIA.²⁴

Tribal enrollment, or membership, data are an alternative to service population data. Every tribe has its own criteria to determine whether a person is eligible to become a member of that tribe.²⁵ Tribes have varying criteria based on shared customs, traditions, language, or amount of tribal ancestry. BIA collects enrollment data but does not verify the information.

The service population of a tribe is not necessarily the same as the number of enrolled tribal members. For example, members of one tribe may live closer to another tribe's reservation, and may be eligible to receive services from BIA through that nearby tribe.²⁶ Because service population estimates may include members from more than one tribe, service population estimates may be larger than tribal enrollment estimates.

BIA Funding Overview

This section discusses discretionary appropriations for BIA. It presents BIA's discretionary account structure and identifies the type and availability of appropriations for each account. It also covers the change in BIA annual discretionary appropriations from FY2020 to FY2023. In addition to discretionary appropriations, BIA receives mandatory appropriations, which are controlled by authorizing laws. This report does not address BIA's mandatory appropriations.

BIA Discretionary Funding

BIA receives funding through the annual discretionary appropriations process to help fulfill its mission.²⁷ BIA generally receives discretionary appropriations through Title I of the regular Interior, Environment, and Related Agencies appropriations bills. Approximately three dozen agencies and other entities are funded by this bill.²⁸ Funding may be available for obligation for one fiscal year, multiple fiscal years, or until expended (i.e., "no year" funds).²⁹ For several accounts, BIA receives definite discretionary appropriations, which include a specific dollar figure. For two accounts, BIA receives indefinite appropriations, which identify "such sums as are necessary."³⁰ The definite discretionary accounts are listed below.³¹ For each account, the information includes the period of availability of the appropriations (as specified in the most recent full year appropriations law, for FY2023).³²

• Operation of Indian Programs (OIP). This account funds activities such as tribal governments, social services, law enforcement, infrastructure, and trust land and natural resources. This account received two-year budget authority in FY2023, although some programs within this account have no-year authority.³³
• Indian Land Consolidation. This account attempts to address historic fractionation of tribal lands (land held by many owners) by purchasing fractional interests from willing individual tribal landowners and conveying those interests to the tribe with jurisdiction. This account was created in the FY2022 Consolidated Appropriations Act. This account received no-year budget authority in FY2023.³⁴
• Construction. This account funds activities such as construction, repair, improvement, and maintenance of irrigation and power systems, buildings, utilities, and other BIA facilities; acquisition of lands and interests in lands. This account received no-year budget authority in FY2023. ³⁵
• Indian Land and Water Claim Settlements and Miscellaneous Payments to Indians (ILWC). This account includes funding to implement congressionally authorized land and water settlements negotiated between tribes, states, and Congress. This account received no-year budget authority in FY2023. ³⁶
• Indian Guaranteed Loan Program (IGLP). This account seeks to help tribes overcome barriers to conventional financing and secure reasonable interest rates, while also reducing the risk to lenders by providing financial backing from the federal government.³⁷ Loans may be used for operating capital, equipment purchases, acquisition and refinancing, building construction, and lines of credit. Projects must benefit the economy of a reservation or tribal service area. This account received two-year budget authority in FY2023.

The two indefinite discretionary accounts are used for implementing ISDEAA. For both accounts, appropriations laws typically provide for "such sums as may be necessary," and the accompanying explanatory statements typically estimate the amount needed for a given fiscal year.³⁸ These accounts received two-year budget authority in FY2023.

• Contract Support Costs (CSCs). This account is used to pay tribes for the indirect or administrative costs associated with ISDEAA agreements.³⁹ ISDEAA requires DOI to provide a tribe with an ISDEAA agreement with funds equivalent to those that the Secretary of the Interior would have otherwise provided for the program(s). That includes CSCs, or "reasonable costs for activities which must be carried on by a tribal organization as a contractor to ensure compliance with the terms of the contract and prudent management."⁴⁰ Whether tribes have historically received the CSCs funding amounts that they were legally entitled to was a source of contention for many years. In 2012, the Supreme Court held that agencies must pay CSCs, despite Congress sometimes placing a spending cap on total BIA CSCs appropriations.⁴¹ After years of debating how to ensure BIA complied with these legal obligations, Congress began to provide two-year funding for CSCs through an indefinite appropriation starting in FY2016.⁴² If the estimate in the appropriations bill for CSCs is less than the actual obligations in a given fiscal year, BIA can request the difference from the Department of the Treasury. According to BIA, it has not encountered any procedural difficulties in obtaining this remainder when needed.⁴³
• Payments for Tribal Leases (PTLs). This account is used to pay for tribally owned or rented facilities that tribes use to carry out responsibilities under ISDEAA agreements. ISDEAA states that the Secretary of the Interior is required to enter into a 105(l) lease with a tribe, upon the tribe's request to pay for these facilities.⁴⁴ In 2014 and 2016, two federal district courts affirmed DOI's obligation to pay for these facilities per 105(l) leases.⁴⁵ In the Consolidated Appropriations Act, 2021, Congress established an indefinite discretionary appropriations account for PTLs.⁴⁶ Like the CSC account, if the estimate in the appropriations bill for PTLs is less than the actual obligations in a given fiscal year, BIA can request the difference from the Department of the Treasury. According to BIA, it has not encountered any procedural difficulties in obtaining this remainder when needed.⁴⁷

Since FY2020, regular annual BIA discretionary appropriations have fluctuated for various reasons.⁴⁸ Total regular annual BIA appropriations increased from about $2.03 billion in FY2020 to $2.44 billion in FY2023 (an increase of about 20%).⁴⁹ Some of this growth is attributable to increasing appropriations in the OIP, Construction, and IGLP accounts. In addition, Congress established and funded two new accounts during that time period: Payments for Tribal Leases and Indian Land Consolidation.⁵⁰ Congress reduced the ILWC account by more than $44 million from FY2021 to FY2022 due to supplemental funding for Indian water settlements provided by the Infrastructure Investment and Jobs Act (IIJA; P.L. 117-58).⁵¹ The two indefinite discretionary accounts, CSCs and PTLs, have received varying amounts based on estimated need. For example, in FY2023, these accounts comprised about 15% of total BIA discretionary appropriations. In its FY2024 budget justification, BIA requested increases for both accounts, anticipating that demand for ISDEAA agreements, including associated costs such as CSCs and PTLs, would grow.⁵²

See Figure 2 for an illustration of BIA appropriations accounts as a share of total appropriations since FY2020.

Figure 2. Bureau of Indian Affairs—Discretionary Appropriations, FY2020-FY2023

Source: CRS, based on explanatory statements accompanying the FY2020-FY2023 appropriations acts for Interior, Environment, and Related Agencies. Notes: Bureau of Indian Affairs (BIA) appropriations accounts are presented bottom up in the order that they are listed in the Consolidated Appropriations Act, 2023, although this figure separates the definite (solid color) and indefinite (striped pattern) accounts. Dollars are not adjusted for inflation. This figure includes annual discretionary BIA appropriations provided in regular annual appropriations laws and does not include supplemental or mandatory appropriations.

Budget Formulation and Execution

Since the 1970s, Congress and many tribes have expressed interest in enabling tribal input into determining both who is eligible to receive BIA programs and services as well as how much funding should be allocated for those BIA programs and services. Tribes traditionally reported the number of American Indians and Alaska Natives living on or near reservations or communities eligible to receive BIA programs and services (service populations). Through BIA's budget processes, tribes increasingly have been able to influence the amount of funding that BIA or tribes receive for those programs and services.

Indian Priority System

Since the 1970s, Congress has expressed interest in enabling tribes to have greater influence over their own funding and program decisions, as noted.⁵³ Beginning with the FY1973 budget, BIA created an Indian Priority System (IPS) process, which allowed tribal input in BIA budget formulation for OIP funding provided to the agency (field) offices, including tribes with ISDEAA agreements in those locations.⁵⁴ BIA and tribes jointly ranked IPS programs assuming different funding levels. BIA's headquarters then consolidated the input into BIA's annual budget request.⁵⁵

Tribal Priority Allocation (TPA) and Non-TPA Funding

Although the IPS process initially appeared to work as Congress intended (allowing for tribal input into BIA's budget), Congress and the Government Accountability Office (GAO) later expressed concern that the IPS system was not achieving its intended purpose.⁵⁶ In the FY1991 Department of the Interior and Related Agencies Appropriations Act and its accompanying reports, Congress called for BIA to establish a budget reform task force.⁵⁷ DOI created the Joint Tribal/BIA/DOI Advisory Task Force, which recommended that BIA shift control over its budget decisions to the local level, and that BIA establish a new "tribal budget system" to measure the "relative needs" of each tribe for all programs.⁵⁸ According to the task force, this methodology would enable BIA and tribes to propose "needs-based" budgets.⁵⁹

With congressional approval, BIA transitioned to a new tribal budget system from FY1993 to FY1994.⁶⁰ BIA's new tribal budget system was based on the IPS, but with some changes. Although both systems aimed to enable tribal input in BIA budget formulation, the IPS was based on BIA's organizational structure (the amount of funding provided to agency [field] offices and associated tribes), whereas the new system proposed to allocate funding based on program function. In its FY1994 budget justification, BIA proposed creating tribal priority allocations (TPAs), a designation given to specific, recurring BIA budget line items or activities that support tribal services, or that tribes can assume through ISDEAA agreements.⁶¹ TPA funding is recurring, base funding for most programs within BIA's largest account—the OIP account.⁶² Due to ISDEAA's prohibition on tribes assuming inherently federal functions, BIA generally excludes programs that involve BIA oversight, trust management, or activities resulting from legal decisions from the TPA designation.⁶³

In addition to TPA base funding, tribes receive recurring "non base" program-specific BIA funding. In contrast to base funds, BIA resources for each of these programs are allocated to tribes using a specific method of distribution, most commonly formulas. Examples of these "non base" BIA programs based on formulas include welfare assistance, housing improvement, and road maintenance.⁶⁴ BIA also provides limited, or one-time, nonrecurring program funding, sometimes through competitive grant processes.

Tribal influence in setting TPA funding levels has varied over time. GAO reported that tribes had limited input in the initial TPA amounts proposed by BIA.⁶⁵ The TPA levels set in BIA's FY1994 budget justification set the historical baseline for the amount of TPA funding BIA would distribute to each tribe; however, BIA's process for determining the initial TPA funding levels per tribe is not well documented. Some tribes were able to influence initial TPA levels through the initial tribal shares process, as outlined in the text box below.

In 1999, BIA institutionalized tribal input in budget formulation for TPA and some non-TPA BIA funding by establishing the Tribal Budget Advisory Committee.⁶⁶ This group, now known as the Tribal Interior Budget Council or TIBC, provides a forum and process for tribes to identify priorities and provide other input to DOI officials developing BIA's annual budget requests.⁶⁷ According to BIA, the TIBC incorporates tribal input throughout the budget formulation process and provides a more structured way to capture tribal input than during the prior IPS process.⁶⁸ During budget formulation, DOI issues a data call to tribes seeking input on prioritization of funding for the President's budget request.⁶⁹ DOI provides tribes with a data collection ranking tool to outline their top funding preferences within each of the following eight bundled TPA categories:

• 1. Strengthening Tribal Communities;
• 2. Trust Natural Resources Management;
• 3. Trust Land and Water Rights Management;
• 4. Public Safety and Justice;
• 5. Economic Development;
• 6. Education;
• 7. Construction; and
• 8. Resource Management Construction.⁷⁰

DOI considers the ranked tribal preferences and adjusts the amounts to include tribal pay costs and other fixed cost increases.⁷¹ DOI then compiles this information into the BIA's annual budget request. See the Appendix for a list of the FY2024 OIP account's TPA and non-TPA sub-activities based on the TIBC prioritization process. Congress approves or alters the budget request as part of the appropriations process.

Funding Allocation to Tribes

Since BIA's initial TPA base funding determinations in the 1990s, TPA amounts and allocations to tribes have fluctuated. After BIA appropriations are enacted, BIA allocates TPA funding to its regions to directly operate programs for tribes, and also allocates funding to tribes with ISDEAA agreements. BIA allocates appropriations increases that are not directed to a specific tribe on a pro-rata basis based on their tribal share (for tribes with ISDEAA agreements) or historical funding levels (for direct service tribes).⁷² Starting in FY2000, Congress also authorized BIA to allow tribes with ISDEAA agreements to move TPA funds from one TPA program to another without approval from the appropriations committees, known as reprogramming.⁷³

On occasion, Congress has appropriated funding above historical TPA amounts. For example, Congress has appropriated funding to tribes for specific purposes or projects.⁷⁴ Congress also has authorized BIA to create new TPAs for certain tribal groups. For example, because newly federally recognized tribes did not participate in the 1990 tribal shares process, and therefore do not have a historic TPA baseline amount, BIA's New Tribes TPA provides base funding for these tribes to establish and carry out the day-to-day responsibilities of a tribal government.⁷⁵ The amount available depends on the tribe's population.⁷⁶ In addition, to support small and economically disadvantaged groups, Congress established the Small and Needy Tribes Supplement TPA in the FY1997 Department of the Interior and Related Agencies Appropriations Act (P.L. 105-83). This TPA attempts to provide tribes meeting population size and geographic criteria with minimum TPA base funding to run viable tribal governments.⁷⁷

Issues and Options for Congress

A number of issues arise for Congress in deciding the type and nature of BIA appropriations. One consideration is the appropriate form of BIA appropriations, including whether discretionary, mandatory, and/or advance appropriations best suit BIA programs or activities. Another consideration is Congress's role in authorizing, appropriating, and conducting oversight of those programs or activities. Congress also has debated the appropriate methodology for allocating BIA funding to tribes.

Form of Appropriations

Congress may consider changing the form of some BIA appropriations for various reasons. Some Members of Congress, GAO, some tribes, and various courts have expressed that Congress and BIA should ensure timely and reliable disbursement of funds, especially funds tied to the implementation of ISDEAA agreements.⁷⁸ Congress could consider several options to address these issues, including providing BIA programs with advance appropriations or additional mandatory appropriations.⁷⁹ However, Congress might be reluctant to provide advance appropriations or mandatory appropriations for these purposes as potentially limiting regular congressional oversight over government spending, among other reasons.

Advance Appropriations

The timeliness of federal appropriations, including BIA funding for tribes, has been raised as an issue for Congress. Some tribes have advocated for BIA advance appropriations to mitigate tribal impacts of government shutdowns and continuing resolutions. However, historically Congress has been generally reluctant to provide advance appropriations because they potentially limit congressional oversight over government spending.

Some Members of Congress, GAO, BIA, and some tribes have noted that when annual appropriations are not enacted by the start of the fiscal year, it can disrupt critical tribal services and result in administrative burdens and costs.⁸⁰ At several congressional hearings, tribes have testified to the negative consequences of government shutdowns and federal funding uncertainties, especially for public safety and tribal economic development.⁸¹ Many tribes have expressed support for advance appropriations to mitigate tribal impacts of government shutdowns, and to uphold federal treaty and trust obligations.⁸²

In limited instances outside the annual appropriations context, Congress has provided BIA with advance appropriations.⁸³ However, some Members of Congress have supported providing BIA with advance appropriations on an ongoing basis specifically to avoid the impacts of delayed or lapsed appropriations.⁸⁴ Advance appropriations may raise congressional concerns about a lack of oversight on government spending. In addition, such commitments prior to the budget year may effectively constrain future budgetary resources.⁸⁵ Because of this, congressional mechanisms for budget enforcement routinely include provisions limiting advance appropriations to specified accounts and funding levels.⁸⁶

Mandatory Appropriations

Mandatory appropriations also have been of interest to Congress as an alternative to advance appropriations, or perhaps in addition. Some tribes and courts have stated that Congress and BIA should ensure timely and reliable disbursement of funds, especially funds tied to the implementation of ISDEAA agreements such as CSCs and PTLs funding.⁸⁷ However, those two accounts currently are indefinite discretionary accounts, and therefore may already receive adequate funding to meet legal obligations (except when an appropriations funding gap occurs, such as during a government shutdown). Also, Congress has historically been reluctant to provide mandatory appropriations because they potentially limit congressional oversight over government spending.

For several reasons, some Members of Congress, BIA, and some tribes support moving CSCs and PTLs to mandatory spending.⁸⁸ First, the government will continue to be legally required to pay CSCs and PTLs even as the costs are expected to increase. Second, some have expressed concern that the continued growth of CSCs and PTLs obligations could reduce funding available for other BIA programs in annual discretionary appropriations acts.⁸⁹

BIA and Congress have considered moving CSCs and PTLs to mandatory spending. BIA has requested that one or both of these accounts receive mandatory funding in several budget requests.⁹⁰ During the FY2023 appropriations process, the Interior appropriations bill introduced in the Senate by the Chair of the Interior Appropriations Subcommittee would have made the CSCs and PTLs accounts into "appropriated entitlements"—when Congress creates a mandatory spending program in authorizing law but funds it in annual appropriations acts.⁹¹

Funding Flexibility and Oversight

The extent to which BIA and tribes should have flexibility in funding has been under debate. Flexibility in funding distributions may promote tribal self-determination and fulfill the federal trust responsibility. It may also mitigate the impacts of the uncertain timing of the congressional appropriations process. On the other hand, BIA and tribal spending flexibility may limit Congress's ability to set budget priorities and oversee agency processes. Less oversight may also lead to reduced BIA and tribal accountability for their use of federal funds.

As part of the federal policy supporting tribal self-determination, Congress has provided tribes with ISDEAA agreements some flexibility in spending BIA appropriations. Starting in FY2000, Congress has authorized tribes with ISDEAA agreements to reprogram TPA funds to meet their needs.⁹² Due to this authority, tribes with ISDEAA agreements may have more flexibility in their spending allocations than tribes without ISDEAA agreements. Congress may consider directing BIA to distribute additional BIA funds through ISDEAA agreements, especially for emergency funding, which often has time pressures.⁹³

Outside of the ISDEAA context, Congress may consider appropriating a larger share of BIA appropriations within BIA's Aid to Tribal Government TPA. Located within BIA's OIP account, this TPA provides baseline funding to tribes "to achieve and maintain stable government program and operational services."⁹⁴ Because the purpose of this TPA is broad, many tribes advocated for the distribution of the majority of the tribal funding in the American Rescue Plan Act of 2021 (ARPA; P.L. 117-2) into this TPA.⁹⁵ Tribes also used this TPA for some distributions in the Coronavirus Aid, Relief, and Economic Security Act (CARES Act; P.L. 116-136).⁹⁶

On the other hand, Congress may be reluctant to provide BIA and tribes with funding flexibility because that could limit congressional oversight opportunities. For example, Congress has excluded certain activities from the TPA designation to minimize tribal reprogramming of funding for congressional priorities such as tribal law enforcement.⁹⁷ Congress has also expressed interest in overseeing funding for BIA programs at high risk for waste, fraud and abuse, such as tribal energy resources.⁹⁸ Another factor is BIA's prior mismanagement of some funds; Congress enacted the Indian Trust Fund Management Reform Act of 1994, which created OST, to implement trust fund management reforms.⁹⁹

To promote BIA funds oversight, Congress could encourage transparency in tracking federal funds and funding decisions affecting tribes, including BIA funding. A 2022 GAO report found that all federal agencies, including BIA, lack consistent data on federal spending on tribes, which makes it difficult to assess whether current federal spending is meeting tribal needs.¹⁰⁰ Both the U.S. Commission on Civil Rights and GAO recommended that the Office of Management and Budget (OMB) develop government-wide standards for tracking and reporting spending on tribal programs.¹⁰¹ Congress could consider delineating how OMB or agencies such as BIA should track and report tribal-related funds.

Whether and how to foster additional tribal accountability for spending federal dollars may be another issue for Congress. Congress has made tribes using ISDEAA agreements subject to auditing and financial reporting requirements, although it also has sought to streamline these processes in recent years.¹⁰² Despite these safeguards, federal agencies such as DOI's Office of Inspector General (OIG) have reported instances where some tribes did not submit required reports on, or otherwise did not appropriately track and monitor, BIA funding.¹⁰³ In line with DOI OIG recommendations, Congress could direct BIA to issue standardized procedures and provide more trainings to agency staff, as well as tribes, on fund reporting and other requirements.¹⁰⁴ Congress may also consider bolstering tribal capacity to meet federal reporting standards. Some tribes, especially small or remote tribes, may have limited staff resources, which might hinder their effective use, and accounting of, federal funds.

Funding Allocation

BIA relies on TPAs, which are based on historical funding levels, in its budget formulation and execution processes (for details, see section "Budget Formulation and Execution"). This approach has been supported for promoting tribal self-determination, and opposed for potentially causing tribal inequities. Alternatively, Congress may evaluate the possibility of basing TPA distributions on current factors that may serve as a proxy for tribal needs, such as population, land area, geographic location, or poverty rates.

Some tribal groups have stated that tribal participation in setting annual TPA (and some non-TPA) levels during TIBC meetings promotes tribal self-determination.¹⁰⁵ As noted, TPAs also give flexibility to tribes with ISDEAA agreements to reallocate funding to meet tribal needs.

Nevertheless, some tribes have asserted that reliance on TPA funding levels may result in funding inequities among tribes. For example, every tribe's TPA funding amount is adjusted by the same percentage as the overall TPA increase or decrease provided in appropriations, regardless of tribal need or financial assets.¹⁰⁶ Although participants at the annual TIBC meetings discuss tribal needs, some groups do not participate in the TIBC process, or do not participate at the same level as other groups.¹⁰⁷ To address this issue, some tribes and tribal groups have asked Congress to direct BIA to conduct ongoing or periodic needs assessments, which would include the cost of funding unmet needs within BIA's OIP account.¹⁰⁸

As it has done in the past, Congress could direct BIA to use an alternative TPA methodology that includes current tribal needs assessments.¹⁰⁹ For example, in 2020, Congress amended ISDEAA to ensure ongoing needs assessments for tribes with ISDEAA agreements.¹¹⁰ Pursuant to the law, tribes may submit reports of their unmet funding needs of self-governance compacts to both DOI and Congress.¹¹¹ Considering BIA's reported difficulty in estimating ISDEAA agreement needs, these tribal reports may inform congressional oversight and decisionmaking on funding for tribes entering ISDEAA agreements.¹¹² This type of reporting may be especially helpful for tribes that did not establish tribal shares in 1990. Congress also could consider requiring BIA to conduct periodic surveys of tribes to see which tribes are interested in ISDEAA agreements.¹¹³

Congress could also consider some tribal suggestions to base BIA funding distributions on current factors that may serve as a proxy for tribal needs, such as population, land area, geographic location, or poverty rates.¹¹⁴ In the past, BIA has evaluated and dismissed some of these factors, such as location, due to the challenge of comparing tribes across regions.¹¹⁵ The next section addresses some issues related to funding allocation based on population.

Funding Allocation Based on Tribal Population

BIA has relied on service population data to determine the tribal population eligible for BIA programs and services in various service areas (for details, see section "Tribal Population Eligible for BIA Services"). This approach has been supported for enabling tribes with reservations to include tribal members who are landless or have off-reservation lands, and opposed for inadequately accounting for tribes without reservations.

Some tribes believe that service population continues to be an appropriate metric for BIA fund allocation because it can be inclusive of individual AI/ANs regardless of tribal membership. It allows tribes to include tribal members that are not part of their tribe but live within the boundaries of the tribal reservation for purposes of receiving BIA services.¹¹⁶ Another potential advantage of this approach is that service population data were historically published, which promoted transparency.¹¹⁷ Most tribes submitted population data for BIA's biannual population report.¹¹⁸ However, BIA has not publicly published this information since 2014.¹¹⁹

Using service population data may not be appropriate for all tribes, especially those without reservations. As noted, for many "reservation" tribes, service population means the tribal population living on or near the tribal reservation who are eligible for services.¹²⁰ However, many Oklahoma tribes and Alaska Natives do not have reservations, and therefore have different definitions of service population. In addition, some of the Oklahoma tribes' service areas, which are based on the tribes' last existing reservations, are larger than most tribes that currently have reservations. BIA has reported that these differences in tribal land holdings contribute to inconsistent service population definitions and data reporting.¹²¹

As an alternative to the historic TPA model or service population method, many tribes have expressed support for BIA's use of self-certified tribal enrollment data.¹²² Some tribes suggested that BIA use an adjusted enrollment methodology that incorporates not only enrollment but also need. For example, to ensure that small tribes receive adequate funding, and large tribes do not receive a disproportionately large share of funding, BIA could set minimum and maximum funding levels.

During the Biden Administration, BIA used tribal enrollment data to distribute some funding. BIA has claimed that enrollment data enable BIA and other federal agencies "to equitably distribute resources because it is a quantifiable representation of a Tribe's overall population."¹²³ For example, BIA used enrollment data to distribute supplemental funding such as ARPA and CARES Act funding.¹²⁴ BIA also used tribal enrollment data to determine the minimum tribal population for eligibility in the Small and Needy Tribe TPA distribution in FY2021 and FY2022.¹²⁵

Congress may consider directing some BIA fund allocation according to tribal enrollment data. For example, Congress may evaluate whether BIA's use of enrollment data for the Small and Needy Tribe supplement achieved congressional priorities, and if so, could consider doing the same for allocating funding to the Newly Recognized Tribe TPA. Additionally, Congress could consider establishing an interagency/intertribal workgroup to evaluate tribal population and enrollment data issues, and assess and build upon existing federal partnerships and initiatives.¹²⁶

Appendix. Supplementary Table