Introduction

The federal government provides child development, elementary and secondary education, and educational assistance to Indian¹ children, in a federal school system and in public school systems that predominantly receive state and local funding. The Bureau of Indian Education (BIE)² in the U.S. Department of the Interior (DOI) oversees the federally funded BIE system of elementary and secondary schools. The BIE system is funded primarily by the BIE but also receives considerable funding from the U.S. Department of Education (ED). The public school systems of the states receive federal funding from ED, the BIE, and other federal agencies.

Federal provision of educational services and assistance to Indian children is based not on race/ethnicity but primarily on their membership in, eligibility for membership in, or familial relationship to members of Indian tribes, which are political entities. Federal Indian education programs are intended to serve Indian children who are members of, or, depending on the program, are at least second-degree descendants of members of, one of the 574 tribal entities recognized and eligible for funding and services from the Bureau of Indian Affairs (BIA) by virtue of their status as Indian tribes.³ The federal government considers its Indian education programs to be based on its trust relationship with 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).⁴ Despite this trust relationship, most Indian education programs are discretionary and not an entitlement like Medicare.

Different federal Indian education programs serve different, though overlapping, sets of Indian students, and data on these programs' students also differ (and overlap). The eligibility criteria for these programs are not based on self-identified race/ethnicity categories. Rather, eligibility is based on the recognition of the political status of the groups from which the students are members or descendants of members. Not every school or school district that enrolls at least one Indian student receives funding from a federal program that is designed to serve Indian students or that allots funds based on numbers of Indian students.

Indian children served by public elementary and secondary school systems are also eligible for the federal government's general programs of educational 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 students served by these programs, an overview of programs and their funding, and brief discussions of selected issues in Indian education.

Brief History of Federal Indian Education Activities

The following subsections provide a brief history of key periods in the development of federal Indian education policy.

Civilization and Assimilation

U.S. government concern with the education of Indians began with the Continental Congress, which in 1775 appropriated funds to pay the expenses of 10 Indian students at Dartmouth College.⁵ Through the rest of the 18^th century, the 19^th century, and much of the 20^th century, Congress acted out of concern for what at the time was considered by some as 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 of governmental efforts was to change Indians' cultural patterns into Euro-American ones—in a word, to assimilate them.⁶

From the Revolutionary War 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 for a tribe—in this case, vocational—was in 1794.⁷ The first treaty providing for academic instruction for a tribe was in 1803.⁸ Altogether over 150 treaties with individual tribes provided for instructors, teachers, or schools—whether vocational, academic, or both—either permanently or for a limited period of time.⁹ The first U.S. statute authorizing appropriations to "promote civilization" among Indian tribes was the Indian Trade and Intercourse Act of 1793,¹⁰ but the Civilization Act of 1819 was the first authorization and appropriation specifically for instruction of Indian children near frontier settlements in reading, writing, and arithmetic.¹¹ Civilization Act funds were expended through contracts with missionary and benevolent societies. 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 number of such treaty, mission, tribal, and New York schools reached into the hundreds by the Civil War.¹²

Federal Indian School System

After the Civil War, the U.S. government began to create a federal Indian school system with central policies and oversight, and with schools funded, constructed, and operated by DOI's Bureau of Indian Affairs (BIA).¹³ In 1869, the Board of Indian Commissioners—a federally appointed board that jointly controlled with DOI the disbursement of certain funds for Indians¹⁴—recommended the establishment of government schools and teachers.¹⁵ In 1870, Congress passed the first general appropriation for Indian schools not provided for under treaties.¹⁶ The initial appropriation was $100,000, but both the amount appropriated and the number of schools operated by the BIA rose swiftly thereafter.¹⁷ 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).¹⁸ Most BIA students attended on- or off-reservation boarding schools.¹⁹ BIA schools were chiefly elementary and vocational schools.²⁰

An organizational structure for BIA education began with a Medical and Education Division (1873-1881), the appointment of a superintendent of education in 1883, and creation of an education division in 1884.²¹ The education of Alaska Native children, however, along with that of other Alaskan children, was assigned in 1885 to DOI's Office of Education, not the BIA.²² Mission, tribal,²³ and New York state schools also continued to operate, and the proportion of school-age Indian children attending a BIA, mission, tribal, or New York school rose slowly.²⁴

Shift to Public Schools

A major long-term shift in federal Indian education policy, from federal schools to public schools, began in FY1890-FY1891 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.²⁵ After 1910, the BIA pushed to move Indian children to nearby public schools and to close BIA schools.²⁶ 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.²⁷

By 1920, more Indian students were in public schools than in BIA schools.²⁸ Figure 1 displays the changing number of Indian students in BIA, 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 1930.²⁹ Comparable data are no longer available.

Figure 1. Number of Indian Students Enrolled in BIA, Public, and Private Schools 1900-1975

Source: U.S. Department of the Interior, Bureau of Indian Affairs, Report on BIA Education. Final Review Draft (Washington, DC: Bureau of Indian Affairs, 1988), Tables 1 and 8, pp. 15, 27. 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.

Snyder Act of 1921³⁰

In 1921, Congress passed the Snyder Act³¹ 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.

This act provides a broad and permanent authorization for federal Indian programs, including for "[g]eneral support and civilization, including education." Congress had never enacted specific statutory authorizations for most BIA activities, including BIA schools. It 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 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.

BIA Operations in the 1920s and 1930s

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 from solely Euro-American subjects to include Indian culture and vocational education.³² The Meriam Report of 1928, an influential study of the condition of American Indians and federal Indian administration, made several recommendations to promote the advancement and civilization of Indians.³³ In addition, in 1931, responsibility for Alaska Native education was transferred to the BIA.³⁴ In 1934, to simplify the reimbursement of public schools for educating Indian students, Congress passed the Johnson-O'Malley (JOM) Act,³⁵ authorizing the BIA to contract with the states, except Oklahoma, and the territories for the education of Indians (and other services to Indians).³⁶

ED Indian Education Programs

The first major non-DOI federal funding for Indian education in the 20^th century began in 1953, when the Federal Assistance for Local Educational Agencies Affected by Federal Activities program,³⁷ now known as Impact Aid, was amended to cover Indian children eligible for BIA schools.³⁸ Impact Aid pays public school districts to help fund the education of children in "federally impacted areas." Further changes to the Impact Aid law in 1958 and the 1970s increased the funding that was allocated according to the number of children on Indian lands.³⁹ Congressional appropriations for Impact Aid have increased, while the JOM funding decreased through FY2013.

In 1966 Congress added further non-DOI funding for Indian education by amending the Elementary and Secondary Education Act (ESEA) of 1965,⁴⁰ the major act authorizing federal education aid to public school districts. The amendments set aside funds for BIA schools from the program authorizing assistance to educational agencies for the education of children of low-income families (now referred to as ESEA Title I-A); School Library Resources, Textbook, and Instructional Materials (Title II); and Supplementary Educational Centers and Services (Title III).⁴¹

A congressional study of Indian education in 1969⁴² that was highly critical of federal Indian education programs led to further expansion of federal non-DOI assistance for Indian education, embodied in the Indian Education Act of 1972, now known as ESEA Title VI.⁴³ The Indian Education Act established the Office of Indian Education (OIE) within the U.S. Department of Health, Education and Welfare (later ED and the U.S. Department of Health and Human Services) and authorized OIE to make grants to local educational agencies (LEAs) with Indian children.⁴⁴ The OIE was the first organization outside of DOI (since DOI's birth in 1849) that was created expressly to oversee a federal Indian education program.

Impact Aid and ESEA Title VI also promote Indian control in public schools. The 1972 Indian Education Act amended the Impact Aid program to mandate Indian parents' consultation in school programs funded by Impact Aid.⁴⁵ ESEA Title VI requires that public school districts applying for its grants prove adequate participation by Indian parents and tribal communities in program development, operation, and evaluation.⁴⁶ The Improving America's Schools Act of 1994 (P.L. 103-382, §9112(b)) and the Every Student Succeeds Act (ESSA; P.L. 114-95) have expanded eligibility under the current ESEA Title VI formula grant program to Indian tribes, Indian organizations, and Indian community-based organizations.⁴⁷

Indian Self-Determination and Education Assistance Act of 1975 (ISDEAA)⁴⁸

Following the termination period of the 1950s and 1960s intended to end the trust relationship between the federal government and Indian tribes, federal Indian education policy 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 school (the Rough Rock Demonstration School on the Navajo Reservation).⁴⁹

The Indian Self-Determination and Education Assistance Act (ISDEAA; P.L. 93-638),⁵⁰ signed into law in 1975, authorized tribal administration of certain federal Indian programs, including BIA and BIE programs. ISDEAA, as amended, allows Indian tribes and tribal organizations, such as tribal school boards, to assume some control over the management of BIE-funded education programs by negotiating "self-determination contracts" or Title IV "self-governance compacts" with BIE. 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.⁵¹

In 1975, the ISDEAA added to the JOM program 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

Education Amendments Act of 1978⁵³

Three years after ISDEAA's enactment, in Title XI, Part B, of the Education Amendments of 1978 (P.L. 95-561), Congress required the BIA "to facilitate Indian control of Indian affairs in all matters relating to education."⁵⁴ 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.⁵⁵

Title XI of this act 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 (described below), and grants and technical assistance for tribal departments of education.

Tribally Controlled Schools Act (TCSA) of 1988⁵⁶

The Tribally Controlled Schools Act (TCSA; P.L. 100-297) of 1988⁵⁷ authorized grants as another means, besides ISDEAA contracts, by which Indian tribes and tribal organizations may operate BIE-funded schools. The act requires that each grant include all requested 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-supported schools.⁵⁸

Reduction of and Limitations on BIE School System

Starting in the 1960s, the number of schools in the BIA school system began to shrink through administrative consolidation, limitations, 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.⁵⁹ The number of BIA-funded schools and dormitories stood at 233 in 1930⁶⁰ and 277 in 1965,⁶¹ but fell to 227 in 1982 and to 180 in 1986 before rising to 185 by 1994;⁶² it currently stands at 183.⁶³ Since the 1990s, Congress has limited both the number of BIA schools and the grade structure of the schools.⁶⁴ In 2006, the Secretary of the Interior separated the BIA education programs in the Office of Indian 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.⁶⁵ The number of Indian students educated at BIE schools has ranged between 41,000 and 48,000 since FY2006.⁶⁶

Status of Indian and American Indian/Alaska Native Elementary and Secondary Education

Although there is no source for the status of Indian student educational achievement nationally, the educational environment and achievements of BIE students and American Indian/Alaska Native (AI/AN) students are reported. Students who identify their race/ethnicity as AI/AN may not be members or descendants of members of federally recognized Indian tribes, and not all members of such tribes may identify as AI/AN. 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),⁶⁷ publishes reports on AI/AN students' characteristics and academic achievements. NCES data are based on race/ethnicity (except most data on BIE students), so the data will include students who identify as AI/AN even though they are not members of tribes and do not fall into the eligibility categories of federal Indian education programs. NCES's race/ethnicity-based AI/AN student population is not the same as the student population served by federal Indian education programs. The two populations overlap, but the degree of overlap has not been determined. NCES data based on race/ethnicity, then, cannot be assumed to accurately represent the Indian student population intended to be served by federal Indian education programs.

BIE Schools and Students

The BIE funds a system consisting of elementary and secondary schools, which provide free education to eligible Indian students, and "peripheral dormitories" (discussed below).⁶⁸ The BIE is led by a director in Washington, DC, who reports to the Assistant Secretary-Indian Affairs. In addition to positions that manage finance, acquisition, accountability, facilities, and other support activities, three Associate Deputy Directors (ADDs) provide oversight, guidance, and technical assistance to the BIE schools. One ADD serves schools serving the Navajo nation, one serves the remaining BIE operated schools, and one serves the remaining tribally operated schools. Each ADD works through multiple, field-located Education Resource Centers (ERC) that provide direct and customized technical assistance to the schools.⁶⁹

The BIE school system serves students who are members of federally recognized Indian tribes or are 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.⁷⁰ Indian tribes commonly require members to be lineal descendants or related to lineal descendants of individuals on the original list of members, so BIE Indian students may have less than one-fourth Indian blood. It is commonly estimated that BIE schools serve less than 10% of Indian students.

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. Peripheral dormitories house students who attend nearby public or BIE schools; these dorms are also located both on and off reservations. Approximately one-third of BIE schools are K-8, one-fifth are K-12, and another one-seventh are K-6.⁷¹

Elementary and secondary schools funded by the BIE may be operated directly by the BIE, by tribes and tribal organizations through grants authorized under the Tribally Controlled Schools Act (TCSA) of 1988, or by tribes and tribal organizations through contracts authorized under the Indian Self-Determination and Education Assistance Act (ISDEAA) of 1975. In addition, some schools receive financial assistance from a state or public school district. A few are operated through a cooperative agreement with a public school district.⁷² In accordance with state law, the three BIE schools in Maine receive state funding.⁷³ In addition, some states provide varying levels of support to BIE schools.⁷⁴ There are eight charter schools co-located at BIE schools.⁷⁵

BIE funds 169 schools and 14 peripheral dorms. Table 1 shows the number of BIE-funded schools and peripheral dorms, by type of operator. The majority of BIE-funded schools are tribally operated.⁷⁶

In the mid-1990s, Congress became 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."⁷⁷ As a consequence, the total number of BIE schools and peripheral dorms, the class structure of each school, and co-located charter schools has been limited by Congress. Through annual appropriation acts from FY1994 through FY2011, Congress prohibited BIE from funding schools that were not in the BIE system as of September 1, 1996, and from FY1996 through FY2011 prohibited the use of BIE funds to expand a school's grade structure beyond the grades in place as of October 1, 1995. Appropriations acts since FY2000 have prohibited the establishment of co-located charter schools.

Beginning in FY2012, Congress has begun to loosen restrictions on the size and scope of the BIE school system. A provision enacted in the FY2012 appropriations act provided an exception for schools and school programs that were closed and removed from the BIE school system between 1951 and 1972 and whose respective tribe's relationship with the federal government was terminated.⁷⁸ As a result of the FY2012 exception in July 2012, BIE began funding grades 1-6 of Jones Academy in Hartshorne, OK. Jones Academy was previously funded by BIE as a peripheral dormitory for students attending schools in grades 1-12, and by the local public school district as a grades 1-6 elementary school. The appropriations acts since FY2014 have authorized the Secretary to support the expansion of one additional grade to better accomplish the BIE's mission, and appropriations acts since FY2018 have authorized the expansion of more than one elementary grade in schools with a K–2 grade structure on October 1, 1996. As a result, in 2014 the BIE approved funding for the tribally funded 6^th grade of the otherwise BIE-funded Shoshone-Bannock Junior High.⁷⁹ In addition, BIE approved the K-2 Blackwater Community School to offer a 3^rd grade in July of 2016 and 4^th-5^th grades in July of 2018.⁸⁰ Successively, appropriations acts since FY2015 have authorized the BIE to approve satellite locations of BIE schools at which an Indian tribe may provide language and cultural immersion educational programs as long as the BIE is not responsible for the facilities-related costs. Accordingly, in AY2015-2016 the Nay-Ah-Shing School in Minnesota opened the Pine Grove Satellite Learning Center using broadband and reducing transportation times and costs.⁸¹

Only Indian students attend the BIE school system, with few exceptions. In SY2023-2024, BIE-funded schools and peripheral dorms are estimated to serve approximately 47,000 Indian students in 23 states.⁸² From SY2018-2019 to SY2021-2022, approximately 49% of BIE schools and dormitories had an average attendance of fewer than 200 students.⁸³

BIE schools and dormitories are not evenly distributed across the country. From SY2018-2019 to SY2021-2022, approximately 66% of BIE schools and dormitories and, on average, approximately 63% of BIE students were located in 3 of the 23 states with schools: Arizona (27% of students), New Mexico (20%), and South Dakota (17%).⁸⁴ Table 2 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).⁸⁵

One measure of a school system's quality and the academic achievement of students is the average score of students on the National Assessment of Educational Progress (NAEP) reading and mathematics assessments.⁸⁶ Table 3 indicates that average scores on the NAEP assessments for students in BIE schools were below those of students in public schools. For example, on the 8^th grade 2015 NAEP reading assessment the average score for BIE school students was 236 while the average for public school students was 264. Data on BIE schools after 2019 are not available.

Public Schools and AI/AN Students

There were approximately 49 million public school students enrolled in elementary and secondary schools in fall 2020, and approximately 461,000 (0.9%) were AI/ANs. A greater than average proportion of AI/AN students live in poverty and require services for students with disabilities. The percentage of children under age 18 in families living in poverty was 30% for AI/AN children and 16% for all children in 2021. In SY2021–2022, the percentage of children ages 3–21 who were served under the Individuals with Disabilities Education Act (IDEA) as a percentage of total enrollment in public schools was 19% for AI/AN students, the highest among all racial/ethnic groups. The percentage of 16- through 24-year-old AI/AN youth who were not enrolled in school and had not earned a high school credential was 10% in 2021, compared to 5% for all 16- through 24-year-olds.⁸⁷

The educational achievement of AI/AN students in public schools can be deduced from the average scores of AI/AN and non-AI/AN students on the NAEP. Table 4 presents results of the 2022 NAEP reading and mathematics assessments for AI/AN and non-AI/AN students in grades 4 and 8. The average NAEP score for AI/AN students is consistently lower than that for white, Hispanic, and Asian students.

Federal Indian Elementary and Secondary Education Programs and Services

Federal Indian elementary and secondary education programs serve Indian elementary and secondary students in public schools, private schools, and the BIE system. Except for one BIE program, public schools do not generally 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 the BIE and from ED. The BIE estimates that it provides about 79% of BIE-funded schools' overall federal funding for operations (excluding renovation and construction), and ED provides 20%.⁸⁸ This section of the report profiles first the BIE programs and second those ED programs that provide significant funding for Indian education.

BIE Elementary and Secondary Education Programs

Funding for and operation of BIE-funded schools are carried out through a number of different programs. The major BIE funding programs for operations 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.⁸⁹ Forward funding in the case of elementary and secondary education programs was designed to allow additional time for school officials to develop budgets in advance of the beginning of the school year. These forward-funded appropriations are specified through provisions in the annual appropriations bill and other statutory provisions.⁹⁰

Indian School Equalization Program (ISEP)⁹¹

The Indian School Equalization Program (ISEP) is the formula-based grant program through which congressional appropriations for BIE-funded schools' academic (and, if applicable, residential) operating costs are allocated among the schools. ISEP grant funds are the primary funding for basic and supplemental educational programs for Indian students attending BIE-funded schools. In addition, ISEP grant funds pay tuition to Sevier Public Schools in Utah for out-of-state Indian students living in the nearby BIE Richfield peripheral dormitory. The ISEP allocation formula, although authorized under the Education Amendments of 1978, 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 schools' grade levels and students' 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, supplemental education programs, and a school's size. The final weighted figure is called the "weighted student unit" (WSU). A three-year WSU average is calculated for each school and nationally. Each school receives a portion of the ISEP appropriation that is the same proportion that the school's three-year WSU average is to the national three-year average WSU.⁹²

Before allocation under the funding formula, part of ISEP funds is set aside for program adjustments, contingencies, and appeals. In recent years, program adjustments have funded safety and security projects, behavior intervention programs, targeted education projects to increase academic achievement, police services, parental participation projects, technical assistance on effective teaching practices for at-risk students, behavioral health counselors, and school staff capacity with respect to budget and programming.

Student Transportation

Student transportation funds provide for buses, fuel, maintenance, and bus driver salaries and training, as well as certain commercial transportation costs for some dormitory and 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).⁹³

Early Child and Family Development (FACE)

BIE's early childhood development program provides grants to tribes and tribal organizations for services for pre-school Indian students and their parents.⁹⁴ The program includes early childhood education for children under six 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 SY2018-2019 before COVID-19 pandemic-related enrollment reductions, the program served over 2,000 adults and 2,000 children.⁹⁵

Tribal Grant Support Costs (Administrative Cost Grants)

Tribal grant support costs,⁹⁶ formerly known as administrative cost grants, pay administrative and indirect costs for tribally operated TCSA-grant schools. Administrative costs for BIE-operated schools are funded through BIE program management appropriations. 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. For the first time in FY2016, appropriations fully funded the statutorily determined grant amounts without the need for a ratable reduction.

Education Program Enhancements

Education Program Enhancements allow the BIE discretion to provide targeted improvements and interventions. Examples of activities funded in recent years include supporting BIE reorganization efforts, providing leadership training and professional development, funding the Sovereignty in Indian Education (SIE) Enhancement program, and developing partnerships with tribally controlled colleges. In addition, funding has been used to develop tribal education departments.

Juvenile Detention Education

The Juvenile Detention Education program supports educational services for children in BIA-funded detention facilities. This is not a forward-funded program. The program was funded in FY2007-FY2011 and has now been funded since FY2016.

Tribal Education Department Grants⁹⁷

The Secretary is authorized to make grants and provide technical assistance to tribes for the development and operation of tribal departments of education (TEDs) for the purpose of planning and coordinating all educational programs of the tribe. Beginning in FY2015, funds have been awarded to promote tribal control and operation of BIE-funded schools on reservations. Funds have also been awarded to begin restructuring school governance, build capacity for academic success, and develop academically rigorous and culturally relevant curricula.

Johnson O'Malley Program (BIE Assistance to Public Schools)⁹⁸

Under the Johnson O'Malley (JOM) program, BIE contracts with tribal organizations, states, LEAs, and Indian corporations to meet the unique and specialized educational needs of eligible Indian students in public schools, private nonsectarian schools, and previously private schools controlled by a tribe or tribal organization. Eligible Indian students, according to BIE regulations, are members of federally recognized tribes or students who have at least one-fourth degree blood from a member of a federally recognized tribe.⁹⁹

Most JOM funds are distributed through tribal contractors—88% as of FY2012.¹⁰⁰ Prospective contractors must have education plans that have been approved by an Indian education committee made up of a majority of Indians or the parents of Indian students. Funds 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, and enrollment in the district is at least 50% eligible Indian students.¹⁰¹ This is not a forward-funded program.

Facilities Operations

This program funds the operation of educational facilities at all BIE-funded schools, including the two BIE postsecondary 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. This is not a forward-funded program. These funds are available at the beginning of the fiscal year for a period of 24 months.

Facilities Maintenance

This program funds preventive, routine cyclical, and unscheduled maintenance for all school buildings, equipment, utility systems, and ground structures, including those at the two BIE postsecondary schools. Like facilities operations funds, the funds are available at the beginning of the fiscal year for a period of 24 months. Appropriations for facilities maintenance were transferred from the BIA Construction account to the BIE account in FY2012.

National Parks and Public Land Legacy Restoration Fund

The Great American Outdoors Act (P.L. 116-152) established the National Parks and Public Land Legacy Restoration Fund (LRF) with mandatory appropriations to address deferred maintenance for five agencies—Bureau of Land Management (BLM), Forest Service (FS), U.S. Fish and Wildlife Service (FWS), National Park Service (NPS), and BIE. From FY2021-FY2025, LRF receives annual deposits from federal energy development revenues, up to a cap of $1.9 billion annually. Deposits to the fund are available as mandatory spending to address "priority deferred maintenance projects." The BIE receives 5% of annual deposits.

School Facilities Repair and Construction and Faculty Housing

Funds for repair, improvement, and construction activities for BIE schools, school facilities, and employee housing are administered by Indian Affairs. Funds are distributed through the following programs:

• The Replacement School Construction program replaces entire school campuses based on a priority list of schools in need of construction.
• The Replacement Facility Construction program replaces single academic related buildings.
• The Facilities Improvement and Repair program funds major and minor facilities improvement, facility condition assessments, targeted projects, and compliance projects.
• The Employee Housing Repair program funds major repairs of employee housing located near some BIE schools.
• The Replacement/New Employee Housing program funds new or replacement teacher housing at remote locations where alternative housing is limited or current facilities are in critical need of replacement.

Construction and repair may be implemented either by Indian Affairs or by tribes under the ISDEAA or the TCSA. In order to prioritize projects and guide expenditures, the BIA maintains a comprehensive condition assessment within its Facilities Management System.

ISDEAA Section 105(l) Facilities Leasing

ISDEAA Section 105(l) requires DOI to lease facilities from tribes and tribal organizations upon their request if such facilities are used by the tribe or tribal organization in support of their ISDEAA contract or compact or TCSA grant.¹⁰² Indian Affairs administers the lease program.¹⁰³ The lease covers facility operating costs such as rent, depreciation, reserve funds principal and interest, and operation and maintenance expenses, repairs, and alterations. In FY2019, the BIE began its first leasing agreement for school facilities with the Gila River Indian Community for the Gila Crossing Community School. The BIE has since entered into another leasing agreement with the Gila River Indian Community for the Casa Blanca Community School. In FY2019 and FY2020, ISDEAA Section 105(l) education facilities lease costs were funded through facilities operations.¹⁰⁴

BIE and BIA Elementary and Secondary Education Appropriations

As illustrated in Figure 2, total BIA and BIE spending on elementary-secondary education and construction has increased 95% over the 10-year period of FY2014-FY2023, from $712 million to $1.386 billion. Appropriations for ISEP formula funds have risen 25% over the same period, from $384 million in FY2014 to $482 million in FY2023. Appropriations over the same period for education construction and facilities, excluding ISDEAA Section 105(l) education facilities lease costs, have risen 527%, from $55 million in FY2014 to $396 million in FY2023. For background on the increase in education construction funding, see the "BIE School Construction and Repair" section.

Figure 2. Appropriations for BIE Operations and Facilities, FY2014-FY2023 (dollars in millions)

Source: Figure prepared by CRS based on U.S. Department of the Interior, Bureau of Indian Affairs, Budget Justifications and Performance Information, Fiscal Years 2015-2019; and U.S. Department of the Interior, Bureau of Indian Education, Budget Justifications and Performance Information, Fiscal Years 2020-2024. Note: Education Construction includes a small amount of funds for BIE postsecondary institutions.

BIE appropriations for elementary and secondary education are divided between program funds, expended through the BIE, and construction and related spending carried out through the BIA. Table 5 shows detailed appropriations for BIE programs and BIA education construction for FY2014-FY2023.

U.S. Department of Education Indian Elementary and Secondary Education Programs

ED provides funding specifically for the elementary and secondary education of Indian children to both public and BIE schools. ED's assistance specifically for Indian education is not to be confused with its general assistance for elementary and secondary education nationwide. Indian students benefit from ED's general assistance as they attend public schools. This section covers ED Indian assistance—that is, assistance statutorily specified for Indians or allotted according to the number of students who reside on Indian lands, many of whom are Indian—not general ED assistance that may also benefit Indian students.

ED Indian education funding to public and BIE schools flows through a number of programs, most authorized under the Elementary and Secondary Education Act (ESEA), as amended by the Every Student Succeeds Act (ESSA; P.L. 114-95),¹⁰⁵ or the Individuals with Disabilities Education Act, although other acts also authorize Indian education assistance. Major ED Indian programs are profiled below. 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. In most instances, BIE schools are included in the definition of local educational agency (LEA) in the ESEA¹⁰⁶ and IDEA,¹⁰⁷ 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, but these programs are not discussed here. Tribes, tribal organizations, the BIE, and BIE schools are also specifically eligible to apply for certain programs, which are not described here.

ESEA Title I-A Grants to Local Educational Agencies

Title I, Part A, of the ESEA authorizes formula grants to LEAs for the education of disadvantaged children. ESEA Title I-A grants provide supplementary educational and related services to low-achieving and other students attending pre-kindergarten through grade 12 schools with relatively high concentrations of students from low-income families. ESEA reserves 0.4% for the outlying areas and 0.7% for DOI unless the set-asides result in the states receiving less than their aggregate FY2016 amount, in which case the provisions under ESEA prior to the enactment of ESSA are in effect.¹⁰⁸ DOI 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).

ESEA Title I-B State Assessment Grants

The ESEA authorizes formula grants to states to support the development and implementation of state assessments and standards as required under ESEA Title I-A. ESEA Title I-B, as amended by ESSA, provides a set-aside of 0.5% for BIE.

ESEA Title II-A Supporting Effective Instruction

The ESEA authorizes formula grants to states that may be used for a variety of purposes related to the recruitment, retention, and professional development of K-12 teachers and school leaders. The ESEA Title II-A program, as amended by ESSA, provides a 0.5% set-aside of appropriations for programs in BIE schools.

ESEA Title III-A English Language Acquisition

Title III, Part A of the ESEA authorizes formula grants to states to provide programs for and services to English learners (ELs), also known as limited English proficient (LEP) students, and immigrant students. The program is designed to help ensure that ELs and immigrant students attain English proficiency, develop high levels of academic achievement in English, and meet the same state academic standards that all students are expected to meet. The program provides a set-aside equal to the greater of 0.5% of appropriations or $5 million for the Native American and Alaska Native Children in School program. The set-aside is available to eligible Indian tribes, tribally sanctioned educational authorities, Native Hawaiian or Native American Pacific Islander Native language educational organizations, BIE elementary and secondary schools, and consortia of BIE elementary and secondary schools.

ESEA Title IV-B 21^st Century Community Learning Centers

Title IV, Part B, of the ESEA 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. The program provides a set-aside of no more than 1% of Title IV-B appropriations for the BIE and the outlying areas. The portion of the 1% that goes to the BIE is determined by the Secretary of Education.

ESEA Title VI-A Indian Education Programs

ESEA Title VI-A authorizes several programs for the education of Indian children. The programs serve Indian students, the children and grandchildren of members of federally recognized tribes, members of state recognized tribes and their children and grandchildren, and additional individuals considered to be Indian.¹⁰⁹

Title VI, Part A, Subpart 1 of the ESEA, as amended by ESSA, authorizes formula grants for supplementary education programs to meet the educational and cultural needs of Indian students. LEAs, Indian tribes, Indian organizations, Indian community-based organizations, consortia of the aforementioned entities, and BIE schools are eligible for grants. 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 committee of family members of Indian students and other stakeholders.

The Indian Education programs also authorize special competitive grant programs. One provides demonstration grants to develop innovative services and programs to improve Indian students' educational opportunities and achievement. 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 Indian Education programs authorize national programs. For example, grants to tribes for education administrative planning and development are authorized. Funds are also authorized for the National Advisory Council on Indian Education (NACIE), which advises the Secretary of Education and Congress on ED programs that benefit Indian children.

ESEA Title VI-C Alaska Native Education Equity

Title VI, Part C, of the ESEA 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.

ESEA Title VII Impact Aid

Title VII of the ESEA, as amended by ESSA, authorizes Impact Aid Basic Support Payments. Impact Aid 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,¹¹⁰ which are defined as Indian trust and restricted lands,¹¹¹ lands conveyed to Alaska Native entities under the Alaska Native Claims Settlement Act of 1971,¹¹² public lands designated for Indian use, and certain lands used for low-rent housing. However, the students residing on Indian lands need not be Indian. Impact Aid funds are distributed by formula directly to LEAs and are used for basic operating costs, special education, and facilities construction and maintenance.

There is no requirement that the funds be used specifically or preferentially for the education of Indian students. There is, however, a requirement that Indian children participate on an equal basis with non-Indian children in all of the educational programs and activities provided by the LEA, including but not limited to those funded by Impact Aid. There is also a requirement that the LEA consult with the parents and tribes of children who reside on "Indian lands" concerning their education and to ensure that these children receive equal educational opportunities. A few BIE schools receive Impact Aid funding. ED indicates that about 105,000 students residing on Indian lands were used to determine formula allocations under Impact Aid for FY2022.¹¹³ The amount of Impact Aid funding going to LEAs based on the number of children residing on Indian lands makes it the largest ED Indian education program.

IDEA Part B Special Education Grants to States

Part B of the IDEA authorizes formula grants to states to help them provide a free appropriate public education to children with disabilities.¹¹⁴ States make subgrants to LEAs. Funds may be used for salaries of teachers or other special education personnel, education materials, transportation, special education services, and occupational therapy or other related services. Section 611(b)(2) of the IDEA reserves 1.226% of state-grant appropriations for DOI. Each appropriations act since the Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 2006 (P.L. 109-149) has limited the DOI set-aside to the prior-year set-aside amount increased for inflation.¹¹⁵ As a consequence, in FY2022 the DOI set-aside was 0.75%.¹¹⁶ Section 611(h) of the IDEA directs the Secretary of the Interior to allocate 80% of the set-aside 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.

IDEA Part C Early Intervention for Infants and Toddlers with Disabilities

Part C of the IDEA authorizes a grant program to aid each state in implementing a system of early intervention services for infants and toddlers with disabilities and their families.¹¹⁷ Section 643(b) of the IDEA reserves 1.25% of state-grant appropriations for DOI to distribute to tribes and tribal organizations for the coordination of assistance in the provision of early intervention services by the states to infants and toddlers with disabilities and their families on reservations served by BIE schools.

MVHAA Education for Homeless Children and Youths

Title VII, Part B, of the McKinney-Vento Homeless Assistance Act (MVHAA; 42 U.S.C. §§11431-11435) authorizes the Education for Homeless Children and Youths (EHCY) program. The program provides assistance to state educational agencies (SEAs) to ensure that all homeless children and youths have equal access to the same free appropriate public education, including public preschool education that is provided to other children and youths. The program provides a 1.0% set-aside of the appropriation to DOI for services provided by BIE to homeless children and youths.

Perkins Native American Career and Technical Education Program (NACTEP)

Title I of the Carl D. Perkins Career and Technical Education Act of 2006 (Perkins IV; P.L. 109-270), as amended by the Strengthening Career and Technical Education for the 21^st Century Act (Perkins V; P.L. 115-224), authorizes formula grants to states to support the development of career and technical skills among students in secondary and postsecondary education.¹¹⁸ The program provides a 1.25% set-aside for the Native American Career and Technical Education Program (NACTEP). Eligible entities for NACTEP funds include federally organized Indian tribes, tribal organizations, Alaska Native entities, and consortia of such, as well as BIE schools.¹¹⁹

ED Elementary and Secondary Indian Education Funding

ED Indian education funding primarily supports public schools. Less than a quarter of ED Indian education funds are set aside for BIE schools (see Figure 3); however, this constitutes a significant source of BIE school funding.

The overall ED Indian education program funding during the FY2014-FY2023 period increased from FY2014 ($1.050 billion) to FY2023 ($1.452 billion) (see Table 6). Funds appropriated in response to the COVID-19 pandemic provided an additional $0.123 billion in FY2020 and $0.354 billion in FY2021.

Impact Aid is the largest single ED elementary and secondary Indian education program, as Figure 3 illustrates. The second-largest funding stream comprises the various BIE set-asides from several ESEA formula grant programs, especially IDEA Part B and ESEA Title I-A. The ESEA Indian Education programs provide approximately 13% of the total funding.

Figure 3. Distribution of ED Funding for Indian Education Programs: FY2014-FY2023 (dollars in millions)

Sources: Figure prepared by CRS based on U.S. Department of Education, Budget Service, unpublished tables, transmitted on various dates, 2015-2023; and U.S. Department of Education, FY2024 Budget Justification, p. C-14.

Issues in Indian Education

Some of the issues of concern with regard to Indian education pertain to the comparatively poor academic outcomes of Indian students, the effect of the Elementary and Secondary Education Act on Bureau of Indian Education schools, the poor condition of BIE school facilities, and the allocation of Johnson O'Malley funds. The federal government has been actively engaged in addressing these issues in a holistic manner in hopes of ultimately increasing the academic achievement of Indian students.

In 2021, President Biden signed Executive Order 14049, White House Initiative on Advancing Educational Equity, Excellence, and Economic Opportunity for Native Americans and Strengthening Tribal Colleges and Universities. Among its purposes, the order is intended to foster a federal response that tackles the legacy of federally supported Indian boarding schools, promotes Native languages, addresses the educational inequities evidenced by the COVID-19 pandemic, and improves the educational outcomes of Indian children. The order tasks each federal agency represented on the White House Council on Native American Affairs with developing a plan to advance the order's purpose and monitoring its progress.

In recent years, Congress has also supported efforts to address these issues. Beginning in 2012, Congress appropriated funds specifically to promote tribal self-determination with respect to public schools. Several ESEA provisions adopted through ESSA are designed to increase Indian and tribal influence in public schools. In recent years, authorizing and appropriating committees have held hearings on the condition of BIE school facilities, the effect of the COVID-19 pandemic on BIE schools, ways to promote Native languages, strategies to improve educational outcomes of Indian students, and Indian boarding schools. In addition, Congress has enacted legislation to address several of the issues.

Poor Academic Achievement and Outcomes

There are significant gaps in educational outcomes for Indian students in BIE schools and American Indian/Alaska Native (AI/AN) students in public schools compared to other students. For more information on educational outcomes, see the earlier section entitled "Status of Indian and American Indian/Alaska Native Elementary and Secondary Education." As specified in the ESEA, "it is the policy of the United States to fulfill the federal government's unique and continuing trust relationship with and responsibility to the Indian people for the education of Indian children."¹²⁰ Title 25 of the U.S. Code also refers to "the federal responsibility for and assistance to education of Indian children."¹²¹

Native Language Instruction and Revitalization

Many federal policies during the civilization and assimilation era and before the current era of self-determination contributed to Native language loss.¹²² In recent decades, there have been consistent calls to increase the use of Native language instruction to increase cultural relevance and improve overall academic performance. One argument contends that language, culture, and identity are intertwined and thus are important to the tribal identity. A counter argument is that Native language instruction detracts from the core curriculum. The Native American Languages Act (P.L. 101-477), as amended, established federal policy to encourage and support Native languages through instruction, exceptions to teacher certification requirements, and comparability with foreign languages. Several administrations have issued executive orders intended to assess the role of Native language and culture on educational strategies and academic achievement and/or expand opportunities for AI/AN students to learn their Native language.¹²³ Congress has expanded program authorities and appropriated funds to permit Native language instruction, preservation, and revitalization.

There is not consensus in the research literature regarding the relative effectiveness of Native language instruction. One commonly cited review of research studies with control groups, for instance, suggests that bilingual instruction in some instances was found to improve English reading proficiency in comparison to English immersion, but in other instances it had no impact. This review focused principally on studies conducted prior to 1996 and that examined instruction for Spanish-speaking elementary school children, and many of the studies have limitations. The one study of Indian Native language students included in the review found no significant difference in English reading outcomes between bilingual and English-immersion instruction.¹²⁴ Some longitudinal studies prior to 2007 indicated that Native language immersion students achieved higher scores on assessments of English and math than Native students who did not receive Native language immersion.¹²⁵ However, a more recent review of the literature suggests that rigorous Native language and culture programs sustain non-English academic achievement, build English proficiency, and enhance student motivation.¹²⁶

Table 7 lists federal programs that support Native language instruction in the context of formal elementary and secondary education. For most programs, Native language instruction or the development of Native language instructors is one of many allowable activities. Several of the programs are competitively awarded, which may disadvantage tribes with fewer resources to develop applications. The programs that primarily support Native language instruction received approximately $45 million of funding in FY2023.¹²⁷

Of the various opportunities for Native language learning, some schools offer classes taught in Native languages. Approximately one-quarter of BIE schools were Native language immersion schools in 2019. Also in 2019, 42% of BIE 4^th graders and 64% of BIE 8^th graders reported attending classes taught in an AI/AN language at least once per week. This exposure is significantly higher than that of AI/AN students in public schools. Of those in public schools with at least 25% AI/AN enrollment in 2019, 26% of 4^th graders and 25% of 8^th graders reported attending classes taught in an AI/AN language at least once per week.¹²⁸

In 2015, the BIE introduced a Native language policy framework for BIE-operated schools, including college and preschool programs. The policy is intended to require the integration of Native language instruction to the extent that Native language standards exist. Consistent with this set of aims, DOI, ED, and the Department of Health and Human Services (HHS) signed a memorandum of understanding to work together to encourage instruction in and preservation of Native languages.¹²⁹ BIE regulations updated in 2020 describe the ability of tribal governing bodies and school boards to create Native language academic standards and assessments.¹³⁰ In March 2020, the BIE announced that it intends to provide guidance on the use of content assessments in a Native language for ESEA Title I-A compliance purposes that would increase flexibility in the use of Native languages for instruction in all subjects.¹³¹

Despite the number of programs that may be used to support Native language learning, the extent to which these programs have resulted in access to Native language instruction and Native language fluency has not been documented.

Discipline, Violence, Crime, and Alcohol and Drug Use

Tribal representatives have indicated that violence and alcohol and drug use are serious community issues that affect students and their ability to learn. A high incidence of substance use, depression, interpersonal violence, and suicide are not conducive to learning.¹³² This environment affects Indian students enrolled in BIE and public schools.

ED and the General Accountability Office (GAO) have indicated that AI/AN students enrolled in public schools are overrepresented among out-of-school suspensions and expulsions and other disciplinary actions.¹³³ Such actions may be related to poverty and mental health issues in addition to potential discrimination. Suspensions and expulsions can have negative educational consequences.

A February 2010 evaluation of violence prevention policies and measures at BIE schools by DOI's Office of Inspector General (OIG) found areas of concern for potential violence and deficiencies in the policies and procedures for preventing and managing incidents.¹³⁴ According to the OIG evaluation, in recent years 6% of public high school students carried a weapon on campus, whereas 37% of BIE middle school students reported the same. The OIG evaluation found that many BIE schools had open campuses—little or no fencing, inadequate security access procedures, and flawed camera surveillance systems. The OIG recommended that the BIA and BIE

• establish safety policies and accurate incident tracking systems,¹³⁵
• evaluate campus safety and security,
• correct weaknesses or require tribal operators to correct weaknesses,
• address safety as a criterion for tribes to maintain operating grants and contracts, and
• implement staff training to prevent and manage incidents.

Follow-up inspections in 2014 indicated the need for improvement in several areas. Emergency preparedness and security plans failed to cover all applicable topics. Violence prevention training for staff and students also failed to cover all applicable topics. BIE schools need to evaluate and implement necessary safety measures.¹³⁶

The BIE collaborates with HHS to provide behavioral health services and assistance. In 2016, the BIE and Indian Health Service (IHS) entered into an agreement to establish local partnerships for IHS-operated mental health programs to provide mental health counseling to students attending BIE-operated schools. The agreement encourages tribes and tribally controlled BIE schools to also participate in local partnerships.¹³⁷ Also in 2016, HHS, DOI, and the U.S. Department of Justice entered into an agreement to coordinate efforts in the prevention, intervention, and/or treatment of alcohol and substance use disorders.¹³⁸ As a result, the HHS Substance Abuse and Mental Health Services Administration maintains BIE Tribal Action Plan regional points of contact to support coordination and technical assistance.

During the COVID-19 pandemic, the BIE initiated its Behavioral Health and Wellness Program in an effort to provide culturally relevant and evidence-based virtual counseling and onsite crisis services at all BIE schools for staff and students. In 2023, the BIE extended its contract for the services an additional five years.¹³⁹

Broadband and Computer Access

Access to high-speed internet (broadband) and computers is of increasing importance in elementary and secondary education. The internet may be used for online standardized assessments (some BIE students must be bussed offsite for assessments),¹⁴⁰ in-home instructional access, and access to various educational resources and content. To this end, schools need broadband access for multiple students concurrently, and students need access at home. Calendar year 2022 Census data indicate that, on average, 93% of the population are in a household that has a computer and a broadband internet subscription, but American Indians and Alaska Natives have the lowest rate of access at 88%.¹⁴¹ Census defines a computer to include desktop computers and smartphones. Smartphones may not be adequate for completing remote learning lessons, which means the data may overestimate access to remote learning. In addition, 28% of persons on tribal lands lack broadband access compared to 2% of Americans in urban areas.¹⁴²

There are three primary sources of funding to improve broadband access on tribal lands.¹⁴³ The Federal Communications Commission (FCC) Universal Service Fund (USF) and the U.S. Department of Agriculture (USDA) Rural Utilities Service (RUS) provide significant funding for broadband deployment; however, tribal entities and BIE schools may receive limited funding in proportion to their need. The BIE Education IT appropriations program element provides internet connectivity for BIE-operated schools and some tribally operated BIE schools. In addition, in FY2020 BIA set aside funds from the Further Consolidated Appropriations Act 2020 (P.L. 116-94) for grants to tribes to perform feasibility studies for the deployment or expansion of broadband.¹⁴⁴ In response to the COVID-19 pandemic, the federal government appropriated $78 billion to address the digital divide and broadband availability, a portion of which was available to Indian tribes, tribal colleges and universities, BIA, BIE, and/or the IHS.¹⁴⁵

BIE School Issues

BIE school-specific issues include how to define an effective academic accountability system for BIE schools, construction and repair of BIE schools, and BIE management and administration.

Federal Administration and Organization

The structure and administration of the BIE school system has long been considered a contributor to poor educational outcomes. A landmark 1928 report, known as the Meriam Report, found that underfunding and paternal federal policy contributed to deficient boarding school student diets, low qualification standards and salaries for teaching staff, student labor to maintain schools, and a prescriptive and unresponsive curriculum. Another milestone report in 1969, known as the Kennedy report, recommended a promotion of the status of BIA within DOI but declined to make a recommendation regarding what it characterized as the long-standing and most serious issue of the ineffective internal organization of the BIA.¹⁴⁶ The 1969 report highlighted that education was not the BIA's highest priority and called attention to a lack of centralized authority, data, and information; a clear chain of command; educational expertise among administrators; and a high quality, motivated, and stable teaching staff. Additional organizational assessments were conducted in 1992,¹⁴⁷ 1999,¹⁴⁸ and 2012.¹⁴⁹

Since 2013, GAO has published several reports on DOI management of BIE schools. GAO has maintained DOI management of Indian education programs on its high-risk list of government programs since 2017.¹⁵⁰ It found fragmented administrative structures, a lack of clear roles and poor coordination between responsible offices, frequent turnovers in leadership, and inadequate procedures and internal controls.¹⁵¹ In addition, GAO indicated that the small enrollment of many BIE schools makes it more difficult for them to acquire all of the necessary educational and personnel resources.¹⁵² The BIE has an inadequate number of staff to oversee school expenditures, and staff have inadequate training and written procedures with which to fulfill their administrative obligations.¹⁵³ For example, insufficient BIE staff expertise and oversight have resulted in special education services required under the Individuals with Disabilities Education Act either not being provided or not being appropriately documented.¹⁵⁴ As of April 2023, the BIE has made progress in addressing several weaknesses but still needs to ensure schools consistently make up missed special education and related services, reduce staff vacancies, provide adequate capacity to oversee schools, and establish sufficient monitoring to ensure schools provide students needed services.¹⁵⁵

Federal administration of BIE schools is complicated by statutory provisions. While the Indian Self-Determination and Education Assistance Act of 1975 and Tribally Controlled Schools Act support the federal policy of tribal control, DOI management of tribally operated schools is necessarily limited by the two laws. In contrast, state educational agencies may establish standards, processes, and programs for public schools to implement. BIE administers TCSA grants, which are limited to schools, but BIA administers ISDEAA contracts, which may include other funding streams such as funds for roads and economic development. Also, the requirement for tribal consultations supports self-determination and may improve results and acceptance, but it slows change, implementation, and innovation.

Several options have been considered to address these long-standing administrative, organizational, and ultimately student achievement issues.

• Similar to the transfer of BIA-funded schools in Alaska to the state of Alaska, the remaining BIE schools or students could be transferred to the states, which have established and known governance systems. AI/AN students in public schools demonstrate higher academic achievement than BIE students, which lends some support for this option. However, AI/AN students in public schools on average score lower than white and Asian/Pacific Islander students in public schools (Table 3 and Table 4). In addition, AI/AN students in public schools and BIE students may not be comparable populations.
• Some stakeholders have suggested colocating or transitioning BIE schools to tribally operated charter schools. As charter schools are public-state schools, this option is similar to the aforementioned option of transferring BIE schools to the states except that charter schools provide greater autonomy to the operator than is available to traditional public schools.
• Some stakeholders have suggested transferring the BIE school system to ED because ED is the federal agency whose mission is educational excellence and equal access. Transferring BIE to ED may be difficult as some tribal stakeholders advocate for DOI-Indian Affairs maintaining responsibility for Indian affairs and the fact that ED does not have experience operating a school system.
• The Administration and Congress have initiated DOI reorganizations and restructurings to address the issue directly. The proposals have variously tried to centralize or decentralize authority and responsibility, improve options for high-quality personnel recruitment and retention, delineate all of the education functions into a separate or independent organization, share support functions between BIE and BIA to leverage expertise, publish policy/procedures manuals, and improve tribal participation.

In 2014 following results of the American Indian Education Study Group, DOI ordered a restructuring of BIE in order to address many outstanding issues, in particular encouraging greater tribal control, improving student achievement, and increasing communication within the BIE and with its stakeholders. The reorganization is designed to provide greater support and technical assistance to tribally operated BIE schools in order to promote more effective teachers and principals, better respond to resource needs, and foster family and community support for students. The reorganization is also designed to ensure the budget is aligned with expected outcomes and processes.¹⁵⁶

During the 114^th Congress, the Senate Committee on Indian Affairs approved the Reforming American Indian Standards of Education Act of 2016 (S. 2580), which proposed to create an independent Indian education agency that would be within DOI and that would be directed by a presidential appointee. The explanatory statements to accompany the FY2014, FY2016, FY2017, and FY2018 appropriations acts instructed DOI to present a plan to reorganize Indian Affairs such that all Indian education functions are administered by and accountable to an independent BIE.¹⁵⁷ The explanatory statement to accompany the FY2020 appropriations act accepted the proposal for an independent BIE with a separate budget. The FY2021-FY2023 explanatory statements have required quarterly reports from the BIE on the reorganization's progress and BIE's capacity.

Academic Accountability Under ESEA

The ESEA, as amended by ESSA in 2015, requires DOI to develop regulations for defining BIE school standards, assessments, and an educational accountability system under ESEA Title I-A, and it permits BIE schools to waive such regulatory requirements if the tribal governing body or school board of a BIE school determines the regulations to be inappropriate. From AY2016-2017 through AY2019-2020, the BIE received waivers from implementing an accountability system that met ESSA requirements.

The final BIE regulations were published in March 2020 and were to go into effect for AY2020-2021.¹⁵⁸ The rules call for unified BIE assessments for English language arts, math, science, and tribal civics, and the option for tribal-level Native American language academic standards and assessments. The BIE is to use commercially available English language arts, math, and science standards until they can be modified to meet unique BIE needs. Tribal governing bodies and school boards can waive in part or whole any part of the academic accountability system. The Miccosukee Tribe has had an alternative system since AY2014-2015, while the Navajo Nation has since AY2015-2016.

In part because of the COVID-19 pandemic, BIE's implementation of the new off-the-shelf assessments was delayed to AY2020-2021 and AY2021-2022. As of August 2023, the BIE has not fully implemented its new accountability system consistent with its plan and regulations.¹⁵⁹

BIE School Construction and Repair

For over 40 years, BIE school facilities have been characterized by a large number of old facilities with a high rate of deficiencies.¹⁶⁰ Some facilities are in poor condition and do not meet health and safety standards.¹⁶¹ Reports from students and faculty suggest that conditions affect learning and enrollment. GAO and DOI have reported several weaknesses in the management of BIE school facilities.¹⁶² Construction activities have historically been managed by either the BIA or Indian Affairs. The weaknesses include a lack of consistent and complete facilities condition information, inadequate implementation of procedures to address facilities' deficiencies, insufficient staffing, inadequate staff training, inconsistent oversight, insufficient internal controls and procedures, and poor communication. Several efforts have been employed to address facilities' deficiencies.

In addition to management concerns, annual funding levels have been insufficient to reduce estimates for eliminating facilities in poor condition. In 2016, DOI estimated that the replacement cost of BIE school facilities exceeded $4.6 billion and that the cost to correct known deficiencies exceeded $430 million.¹⁶³ At the end of FY2019, BIE reported 71 schools in poor condition, 43 in fair condition, and 65 in good condition.¹⁶⁴ In August 2023, BIE reported that in addition to the schools to which funding has been allocated, 68 schools are in poor condition and in need of replacement at an estimated cost of $6.2 billion.¹⁶⁵

Prioritization of Facilities

The BIE is responsible for BIE school facilities, including replacement, improvement, and repair of existing school facilities, and repair of education employee housing. In response to ongoing facilities needs and unsafe conditions, Congress has established requirements of DOI in an effort to facilitate addressing the issues. The No Child Left Behind Act (NCLB, P.L. 107-110) required that DOI establish a negotiated rulemaking committee to report on BIE schools' needs for school and school facilities replacement and repair, and to develop formulas to distribute funds to address these needs.¹⁶⁶ Congress has periodically directed the BIA to develop replacement school priority lists. As of March 2023, work is incomplete on the most recent congressionally requested replacement school construction lists developed in 2004 (14 schools) and 2016 (10 schools).¹⁶⁷ More recently, in each year from 2019 to 2023, BIE developed school replacement priority lists.¹⁶⁸

Oversight of Water Systems

In 2011, the U.S. Environmental Protection Agency (EPA) reached a settlement with the BIA and BIE to address alleged violations of waste, water, air, toxics, and community right-to-know laws at schools and public water systems. The alleged violations are related to the labeling, storage, and release of wastes; asbestos management plans; and drinking water monitoring and contaminant levels. The original settlement required BIA and BIE to correct alleged violations at 72 schools and 27 water systems and implement an environmental compliance auditing program and an environmental management system (EMS) to improve environmental practices at all of its BIE schools. The consent agreement was modified in 2014, expanding the list of BIA/BIE facilities subject to the consent agreement.¹⁶⁹

Construction Bonds

In addition to annual appropriations, the American Recovery and Reinvestment Act of 2009 (P.L. 111-5) authorized Qualified School Construction Bonds (QSCBs; 26 U.S.C. §54F).¹⁷⁰ QSCBs were a tax credit bond program that made bond proceeds available for the construction, rehabilitation, or repair of a public school facility or for the acquisition of land for a public school facility. Treasury allocated $200 million in each of 2009 and 2010 to DOI for Indian tribal governments to construct or repair BIE-funded schools. The authority to issue QSCBs was repealed beginning in 2018. No tribe took advantage of the program partly because many tribes are unable to sell bonds because they are high risk entities; although the allocation remains available.¹⁷¹

ISDEAA Section 105(l) Facilities Leasing

A 2016 court decision, Maniilaq Association v. Burwell,¹⁷² required that IHS enter into a "lease," upon request, with any tribe or tribal organization furnishing a facility that supports ISDEAA programs and that under any such lease, Indian Health Service (IHS) reimburse "the Tribe or Tribal Organization for its reasonable facility expenses." The decision is applicable to BIE. Once a lease agreement is entered into, meeting the annual costs becomes a legal funding entitlement. The popularity and ongoing costs of such leases are unknown. The FY2022-FY2024 President's budgets proposed shifting the costs to indefinite mandatory funding to reflect the entitlement nature of the leases.¹⁷³

Trust Fund Accounts

Another approach to funding facilities construction and renovation is the establishment of a trust fund account from applicable contributions that can be used for these purposes. In 2000, DOI was directed to establish a charitable, nonprofit foundation called the American Indian Education Foundation, later renamed the National Fund for Excellence in American Indian Education (Foundation).¹⁷⁴ The Foundation was established to raise private contributions but has not been functional. The National Parks and Public Land Legacy Restoration Fund (see "National Parks and Public Land Legacy Restoration Fund") is providing funds for a limited period (FY2021-FY2025). The Foundation was intended to support the mission of the BIE and further the educational opportunities of American Indians who attend BIE-funded schools. It was to be a federally chartered nonprofit corporation accepting and administering charitable donations that further the educational opportunities of Indian children attending BIE-funded schools. The Foundation was established in July 2004, but it lacked start-up capital, lacked operational funds, and was unable to raise money.¹⁷⁵ In March 2023, the Foundation held its first board meeting.¹⁷⁶ As of November 2023, the Foundation is seeking a Lead Executive Officer to head the organization.¹⁷⁷

Additional Potential Options

There are several potential options for addressing poor facilities at BIE schools. Some that are routinely suggested or have been suggested by organizations like GAO include the following:

• additional funds for maintenance, improvement, and construction could be appropriated to cover the estimated cost of bringing facilities into good condition;
• public-private partnerships could be formed to fund and/or provide expertise to affect facilities improvement and construction;¹⁷⁸
• implementation of a DOI-based unit or organization that would execute appropriate communication, procedures, internal controls, oversight, and staffing to properly manage BIE facilities;¹⁷⁹ and
• congressional and administrative oversight of measured progress in facilities' improvement and construction may affect outcomes.¹⁸⁰

Public School Indian Education—Johnson O'Malley (JOM) Program Freeze and Modernization

From FY1995 until enactment of the Johnson-O'Malley Supplemental Indian Education Program Modernization Act (JOM Modernization Act; P.L. 115-404), program administration was subject to the JOM freeze. By statute, JOM funds are distributed to contractors by formula, based on a count of Indian students and average per-pupil operating costs. Student counts for allocating funds were frozen in FY1995.¹⁸¹ The intention was to include the JOM funds in each tribe's recurring base funding, tribal priority allocations (TPA), in an effort to stabilize funding for tribes and provide them additional control and flexibility in the use of the funds. Because there is a statutory prohibition on changing a tribe's base funding, JOM allocations were based on FY1995 student counts.¹⁸² Over time, the JOM freeze resulted in an inequitable allocation of funds and restricted new contractors from program access.¹⁸³

In an effort to distribute funds in accordance with more current student counts and to reach additional students, Congress has generally taken four steps—direction to BIE, legislative amendments, a GAO review, and increased funding.

• FY2012-FY2019 appropriations conference reports directed the BIE to count the number of students participating in and eligible to participate in the JOM program and recommend a methodology to distribute funds in the future.¹⁸⁴ Despite BIE requests to current and prospective JOM contractors, some did not report actual or potential participants.
• In December 2018, the JOM Modernization Act was enacted, requiring the Secretary of the Interior to conduct a comprehensive estimate of actual and potential JOM participants, requiring contractors to report participation numbers in order to receive JOM funding, adjusting over time the amount of funds allocated to contractors based on eligible student counts, and increasing program access for new contractors depending on appropriations levels.
• Congress requested that GAO review the JOM program, resulting in an April 2020 GAO report on issues in the implementation of JOM. In part because JOM is administered by several BIA offices, the BIE is unable to compile a complete list of contractors and has not defined roles and responsibilities for BIA staff. The BIE does not provide training to contractors to help them administer the program. GAO recommended that BIE "maintain an accurate and complete list of JOM contractors, develop JOM training, and clearly define roles and responsibilities and identify staff for carrying out JOM functions."¹⁸⁵
• Explanatory statements to accompany the FY2020-FY2023 appropriations acts have directed BIE to provide training and capacity building activities and implement GAO's recommendations.

JOM distributions in FY2024 and subsequently are to be based on "the actual count of JOM eligible students within a JOM contractor's tribal service area or school district." ¹⁸⁶ Congress may continue monitoring the extent to which the oversight and actions impact the program's scope and effect.