National Congress of American Indians
October 1999 Update on the FY2000 Appropriations' Process

I. INTRODUCTION AND BACKGROUND

As the Federal government moves into Fiscal Year (FY) 2000, Congress scrambles to complete work on most of the 13 mandatory spending bills, which should have already been completed before the October 1, 1999, fiscal year deadline. Meanwhile, federal agencies are currently operating under a three-week Continuing Resolution (CR) to keep the federal government operating until an Omnibus Spending bill can be agreed upon by Congress and the President for the remainder of FY2000. The big question from tribes surrounding this year's appropriation's process is how its complexity will affect the funding levels and policy decisions surrounding federal Indian programs in FY2000.

To date, President Clinton has signed into law, three FY2000 Appropriations bills: Military Construction (H.R. 2465); Legislative Branch (H.R. 1905); and Treasury/Postal Service (H.R. 2490). Of the 10 bills remaining, the President has vetoed the District of Columbia Appropriations bill (H.R. 2587), citing too little funding and his objection to certain policy initiatives included in the measure. It is rumored that President Clinton will sign the Energy and Water Development bill (H.R. 2605), but is expected to veto many others unless Congress orchestrates substantial changes before sending them to his desk.

Spending bills with tribal programs, services and funding streams, include: Interior (H.R. 2466); Labor, DHHS, Education (no number); VA, HUD (H.R. 2684); Agriculture (H.R. 1906); Commerce, Justice, State (H.R. 2670); and Energy & Water Development. As the prospects of deliberation over many of these measures being included in an Omnibus Spending bill moves closer to reality, tribes are faced with the final opportunity to advocate for increased funding levels and program authority within these various appropriations' bills. It is critical that tribal governments do all they can to help prevent further erosion of federal funding streams and tribal decision-making powers over federal Indian programs.

The United States is faced with an unprecedented multibillion dollar surplus in federal money as it enters FY2000. The Congressional Budget Office (CBO) and the Office of Management and Budget (OMB) have placed the social security surplus total between $30 billion and $150 billion. As reported in the major news media, the Republicans' plan for this budget surplus is to protect its discretionary expenditure through the use of "lock box" legislation, thereby having it available to fund current entitlement programs as well as finance a massive tax break initiative for federal taxpayers. The President has already vetoed one tax bill (H.R. 2488) on September 23, 1999, and has threatened the same for any tax legislation that puts a tax relief initiative ahead of the Administration's priorities of improving discretionary programs, Medicare, Medicaid, Social Security and other entitlement programs and services.

The problem for Indian Country in all of this high profile politicizing of what to do with the budget surplus is that no one is talking about providing additional dollars to Indian Country. Not only is neither side talking about it, but it looks more and more like tribes will again see reduced funding levels for much needed programs and services as part of any Omnibus Spending bill for FY2000. On paper these reductions are hidden. In fact, on paper, Indian Country has seen incremental funding increases in health care and education, Tribal Priority Allocations (TPA) and other programs, since the devastating funding reductions in most federal Indian programs experienced in FY1996. But the fact still remains that since FY1995, federal funding for Indian Country's programs and services have not kept pace with the federal inflationary index, much less the documented needs of Indian Country. Moreover, restrictions on funding for indirect and administrative cost components have further encroached upon the reductions in direct program dollars received by tribes and Indian program service providers. This disparaging treatment of federal Indian program funding has left funding levels for Indian Country in the red for the past five appropriations' cycles.

In light of the current budget surplus, the continual short-changing of federal Indian programs must become absolutely unacceptable. One of Indian Country's top priorities should be to reverse the current trend of "acceptable reductions" in federal Indian program budgets. In addition, tribes must continue to advocate against the use of non-funding riders in appropriations bills as a primary way of changing federal Indian law and policy. Although the House and Senate have both invoked rules against such legislating on appropriations' measures, the practice continues in earnest against tribal governments. President Clinton must highlight the disparaging treatment of Indian tribes under the appropriations process as a major part of his veto message on all spending bills that impact Indian Country in a negative way. If not, no truer words will have been spoken in recent memory than those accredited to the former Assistant Secretary, Ada Deer, in decrying that Indian Country is faced with "Termination through Appropriations."

Between now and the final bell of the first session of the 106^th Congress (currently projected for October 29, 1999), tribal leaders are urged to increase their direct lobbying of Congress and the Administration if a reversal of the current spending and policy trends are to be achieved. Indian Country deserves, more than any other population sector, a fair and adequate share of the surplus dollars touted so favorably by Congress and the Administration. Furthermore, tribal treaty rights and the obligations of the federal government to uphold its trust responsibilities owed to Indian Country, mandates such action.

The surplus question will undoubtedly be a major campaign issue for the 2000 election, and tribes should begin voicing a unified position on the issue now. Tribes should begin affecting the political process and pressure those decision makers who will inevitably determine how the budget surplus will be spent. The final battles over FY2000 appropriation's is a logical first step in delivering such a message.

II. REVIEW OF FY2000 APPROPRIATIONS

a. Support Increased Funding for Tribal Programs - Proposed FY2000 appropriations in the House and in the Senate for federal Indian programs will not meet the direct program needs of tribes or their administrative costs. In fact, in the Interior Appropriations bill alone (H.R. 2466), overall funding levels again fail to keep pace with current inflationary rates. Based on the federal trust relationship and responsibilities owed to Indian Country, reduced appropriations, base-level funding or nominal increases for a small number of federal Indian programs should be unacceptable to Congress and the Administration for any fiscal year, much less in a year marked with a federal budget surplus.

NCAI strongly urges Congress to increase overall funding and meet its trust and moral obligations to Indian tribes, who remain the most acutely impoverished group in the United States. In particular, NCAI would encourage increases in funding for Tribal Priority Allocations (TPA), which is the basic funding provided through the Bureau of Indian Affairs (BIA) to tribal governments for their assistance in administering tribal government programs and services, including: education; law enforcement; justice systems; environmental protection; and, basic community development and infrastructure. Investment in TPA provides the foundation upon which economic development in much of Indian Country is built. Moreover, contract support costs for the BIA and the Indian Health Service (IHS) should be increased substantially as a primary support mechanism for tribal self-determination and self-governance.

b. Oppose Legislative Riders - To the continuing dismay of NCAI and Indian Nations, the FY2000 appropriations' bills contain a number of offensive legislative provisions that would adversely impact tribal governments and their rights to self-government. Tribal self-government is recognized in the United States Constitution and hundreds of treaties, federal statutes and Supreme Court cases and empowers Indian tribes to protect their cultures and provide for the needs of their people. Any legislation affecting the rights of tribes should be considered in the authorizing Committees, given opportunity for consultation with the affected tribes, and taken up as legislation where Congress can understand what it is voting on. The risks of ill-considered riders are even greater in omnibus legislation, and NCAI strongly urge's Congress and the Administration to enact a bill that is free from all controversial riders in Indian affairs.

c. Oppose Section 125 of the Senate Interior Appropriations' Bill - Sec. 125 would permanently authorize the redistribution of TPA, including tribal base funds, and take away as much as 10 percent of a tribe's current TPA base fund in FY2000. Section 125 gives only a single vague criteria for removing up to ten percent of tribal base funds: "on the basis of identified, unmet needs." Such unfettered discretion has enormous potential for abuse, as a tribe could potentially be punished or rewarded for improper reasons. NCAI is in favor of equitable TPA distribution, but believes that it must be done according to fair, objective and measurable criteria and should apply only to future increases rather than disturb existing programs. The Department of Interior's recent report on TPA distribution supports this position. Tribal governments look upon Section 125 as means testing of federal funding for tribal government operations, an unprecedented policy applicable to no other discretionary funding source that flows to state and local governments for the operation of their fundamental programs and services.

NCAI urges Congress and the Administration to oppose Sec. 125 and allow the authorizing committees with jurisdiction over federal Indian policies ample opportunity to fully deliberate the issue of TPA redistribution before any changes to the distribution formula are mandated. We urge Congress to strike Sec. 125 from the Interior bill in conference and the Administration to veto any spending bill that includes such TPA redistribution provisions.

d. Oppose Section 324 of the Senate Interior Appropriations' Bill - Sec. 324 extends the Pub. L. 93-638 self-determination contracting moratorium an additional year, through FY2000. The hallmark of this nation's Indian policy for the past 30 years has been the promotion of tribal autonomy and self-governance, and the elimination of federal control and paternalism over daily tribal life. These goals were first formally announced by President Nixon in 1970, and today remain at the heart of federal Indian policy. The cornerstone of that policy is the Indian Self-Determination and Education Assistance Act of 1975 (Pub. L. 93-638), which has been repeatedly reaffirmed by Congress through extensive strengthening amendments enacted in 1988 and 1994. From the beginning, this Act has required the BIA and IHS to transfer to a contracting tribe the Federal Government's full resources supporting a particular program, such as a BIA law enforcement program or an IHS hospital or clinic. The benefits of the self-determination policy over local control of federal resources has been well documented.

Congress has consistently recognized the importance of paying indirect costs, along with other contract support costs, and in 1988 and 1994 Congress twice reinforced section 106 of the Act to assure that contract support costs would be paid. However, contract support costs appropriations over the past five years for both the BIA and IHS have consistently fallen short of tribal needs. For example, in the face of an understated BIA calculated need of $137 million, Congress appropriated $115 million, an amount sufficient to only pay approximately 84 percent of all BIA-computed tribal requirements for contract support costs in FY1999. In May of 1998, NCAI formed the National Policy Work Group on Contract Support Costs. The Work Group's Report was submitted to Congress in July 1999 and explores possible changes and reforms in the funding and administration of contract support costs. The Report provides the rationale and data that support the full funding of tribal contract support costs.

A moratorium that bars tribes from entering into any new or expanded 638 contracts is an extremely broad approach to the problem of historically inadequate appropriations of contract support costs by Congress, and strikes at the heart of the U.S. policy of tribal self-determination. NCAI strongly urges Congress to remove Sec. 324 from the Interior bill in conference and that the Administration veto any spending bill that includes an extension of the 638 contracting moratorium.

e. Oppose Section 126 of the Senate Interior Appropriations' Bill - This provision restricts the Secretary from expending any funds to take land into trust for the Shoalwater Bay Tribe in Washington State. The Shoalwater Bay Tribe, one of the smallest and most economically disadvantaged tribe in the Portland Area, retained the rights to 170 acres of land from a private landowner near Ridgefield, WA. After negotiating a $350 million economic development and land use plan for the property, the tribe applied to have the BIA take the land into federal trust status. Disgruntled public and private interests wishing to secure more authority over the tribe's plans have persuaded Sen. Slade Gorton (R-WA), to include Sec. 126 as a way to give them that authority. Report language in the Senate bill further states that the land will not be allowed to be taken into trust status until a "legally enforceable agreement" is reached between the tribe and the county government which "addresses the impact of the new development" on the existing community and infrastructure. This provision holds hostage the rights of the Shoalwater Bay Tribe from having their land taken into trust and forces them to enter into an unfair bargaining agreement with the county government, preventing the tribe's ability to exercise their sovereignty over their own land. Moreover, this provision sets an extremely dangerous precedent under federal law by elevating local government control over the sovereign rights of tribal governments. NCAI strongly urges Congress to remove this provision from the Interior Appropriations bill and urges the President to veto any bill that contains these types of "anti-tribal sovereignty" provisions.

f. Oppose Section 127 of the Senate Interior Appropriations' Bill - Sec. 127 of the Senate version of the FY2000 Interior and Related Agencies Appropriations bill prohibits the use of funds provided in the bill for the implementation of Secretarial Order 3206, issued June 5, 1997. Secretarial Order 3206, signed by the Secretary of Interior and the Secretary of Commerce, establishes procedures for the implementation of the Endangered Species Act (ESA) on tribal lands. It provides tribes with technical assistance in developing their own habitat protection plans, places a priority on tribal self-governance and strives to ensure that Indian tribes do not bear a disproportionate burden for the conservation of listed species.

Section 127 would eliminate any efforts made by the Department of Interior and the Department of Commerce to work with tribes to co-manage tribal lands in the implementation of the ESA and would encroach upon a tribe's authority to develop their own ESA policy and regulations. It would eliminate the directive for Departments to consult with affected tribes if ESA regulations constitute a direct taking of tribal lands or give notice to the affected tribe if an ESA regulation constitutes an incidental taking. Section 127 purports to eliminate any type of preferential treatment the Secretarial Order 3206 provides. Moreover, Section 127 would undercut current well-supported policies of local involvement in ESA decision-making. NCAI strongly urges the Congress to remove Sec. 127 from the Interior bill in conference and that the Administration veto any spending bill that includes a prohibition of funds to implement Secretarial Order 3206.

g. Oppose Section 131 of the Senate Interior Appropriations' Bill - Sec. 131, formerly the "Graham" amendment, is an unfair and unwarranted restriction on the Secretary of Interior's implementation of newly promulgated Class III gaming regulations under the Indian Gaming Regulatory Act that would mediate differences between states and Indian tribes on Indian gaming activities. A similar amendment to the House FY 2000 Interior Appropriations bill was recently defeated by a roll call vote on July 15, 1999 (Roll call vote 289). The Indian Gaming Regulatory Act obligates states to negotiate in good faith with tribal governments for tribal gaming compacts on types of gaming available to any other person or entity in a state. Most states with Indian reservations inside their borders have already negotiated mutually satisfactory gaming compacts. In fact, the State of California recently concluded successful compact negotiations. Only an increasingly small handful of states have refused to negotiate, and the proposed new regulations would simply implement a mediated process, created in the 1988 Act, whereby the appropriate scope of tribal gaming in that state can be resolved.

In addition, a legal challenge to the regulation has already been filed in U.S. District Court in Florida. Interior has committed that it will not grant procedures to a tribe before challenges to its legal authority are resolved. This law suit will resolve the fundamental question of DOI's authority under IGRA, and because it will delay implementation, Section 131 is both unnecessary and obstructive to a fair resolution of these issues. NCAI strongly urges the Congress to remove Sec. 131 from the Interior bill in conference and that the Administration veto any spending bill that includes the prohibition.

h. Oppose Removal of IAIA Funding in the House Interior Appropriations' Bill - The Institute of American Indian Art (IAIA) is a national fine arts college devoted solely to the teachings and preservation of American Indian and Alaska Native arts and culture. Since its inception in 1962, the IAIA has educated more than 4,000 American Indian and Alaska Native students. NCAI is cognizant of the positive impact the IAIA has on the recognition of American Indian and Alaska Native cultures via the arts, and is strongly committed to the continuance, preservation and enrichment of the IAIA.

The President's FY2000 budget request calls for $4.25 million for the IAIA, a $50,000 reduction from the current enacted level of $4.3 million. Concerns continue to mount over what seems to be a decrease in Administrative support for the IAIA. Tribal leaders have voiced opposition to any efforts which may seek to further reduce federal funding for the IAIA, a move that would truly hurt Indian Country's efforts to preserve a significant part of its cultural identity. The Senate has funded the IAIA at $4.25 million, equaling the President's request, but the House-passed bill zeros-out AIA funding for FY2000. As directed by NCAI Resolution #SFE-97-049, NCAI strongly opposes any IAIA funding decrease and encourages Congress to continue its support for the IAIA by considering the current enacted funding level as an appropriation minimum for FY2000.

i. Oppose the PSRF Provision in the Senate CJS Appropriations' Bill - The Senate version of H.R. 2670, the FY2000 Commerce, Justice, State & the Judiciary Appropriations bill (commonly referred to as "CJS"), contains a provision which reduces the President's request of $100 million for the Pacific Salmon Recovery Fund (PSRF) to $80 million, as well as removes a 10 percent tribal set-aside of the total PSRF funding level.

During floor consideration of H.R. 2670, an amendment was offered by Senator Hollings (D-SC), on behalf of Senator Murray (D-WA), that would have restored the President's funding request for the PSRF along with the 10 percent tribal set-aside for tribes in Alaska, Washington, Oregon, and California. The amendment, however, was further revised by the bill managers to maintain the reduced PSRF funding level from that of the President's request, but partially restored the tribal set-aside to $6 million. The revisions also limited eligibility for the tribal set-aside to those tribes in Washington, Oregon and California who currently participate in the PSRF. Also, Native villages in Alaska were excluded from the PSRF in the manager's revised amendment. Moreover, Washington state tribes must conform to a host of additional obligations, restrictions, and reporting requirements to receive any of the tribal set-aside funds. No such provision is in the House-passed version of the bill. It is expected that the CJS appropriation's bill will become part of the larger Omnibus Appropriations bill. NCAI urges Congress to restore the President's full funding request for the PSRF as well as remove the restrictions on tribal participation in the PSRF program.

j. Senate VA/HUD Appropriators Transfer NAHASDA's T &TA Funds - As part of the Senate's version of H.R. 2684, the FY2000 VA/HUD and Independent Agencies Appropriations bill, $4 million in training and technical assistance (T&TA) funds established under the Native American Housing Assistance and Self Determination Act (NAHASDA), for the Act's implementation in Indian Country, have been transferred from HUD's Office of Native American Programs to the National American Indian Housing Council (NAIHC). The Senate Appropriations Committee is apparently concerned about HUD's capacity and commitment to providing adequate T&TA in support of the implementation of NAHASDA. Tribes are urged to immediately share their views regarding transfer of these T&TA funds with Senate Appropriators, the Senate Committee on Indian Affairs (SCIA) and NCAI. Comments should be faxed to Sen. Ted Stevens (R-AK), Chairman of the Senate Appropriations Committee at (202) 228-0542, Sen. Ben Nighthorse Campbell (R-CO), Chairman of the SCIA at (202) 224-5429, and NCAI at (202) 466-7797.

k. Funding for IRR Programs Threatened in Transportation Appropriations' Bill - The recent Transportation Equity Act for the 21^st Century (TEA-21) which was passed by Congress and signed into law by the President limits the obligation of Indian Reservation Road (IRR) funding to 90 percent. This obligation ceiling limitation has thus far eliminated more than $58 million from the IRR program, and is slated to lose another $31 million if the limitation is not removed by way of the FY2000 Transportation Appropriations bill or TEA-21 itself. This limitation is inconsistent with all prior transportation legislation, and seriously impacts the ability of Indian tribes and the BIA to provide Indian people with safe and decent access to health care, education, employment, tourism, and economic development.

In passing their version of H.R. 2084, the FY2000 Transportation Appropriations bill, Senate leaders committed to support full funding of the Indian Reservation Roads (IRR) program once the FY2000 Transportation Appropriations bill moved to conference. In a colloquy on the IRR program, Sen. Domenici (R-NM) expressed concern that because of changes to the allocation formula, the IRR program would not receive an additional $14.5 million in funds, over and above the $275 million authorized under the Transportation Equity Act for the 21^st Century (TEA-21). Sen. Domenici also called on Sen. Shelby (R-AL), Chairman of the Transportation Appropriations Subcommittee, to advocate for full funding of $289.5 million for FY2000 in conference. The Chairman acknowledged the importance of the IRR program and pledged "to work for full funding of the Indian Roads program." NCAI has now learned that the Chairman has made good on his conference promise by adjusting IRR funding up to the full $289 million agreed upon level. However, it is rumored that the President may still veto the Transportation Appropriations bill due to overriding policy issues. Therefore, tribes are urged to continue advocating for the full $289 million funding level for the IRR program in the likelihood that the Transportation bill, if vetoed, is made part of a larger Omnibus Appropriations bill.

l. Tribal Employment Programs Targeted for Funding Reductions in House Labor/H Appropriations' Bill - The House Labor, Health and Human Resources and Education (Labor/H) Appropriations Subcommittee's version of the FY2000 Labor/H Appropriations bill calls for reductions of $1.2 million in Section 166 of the Workforce Investment Act (WIA), which funds tribal employment programs. These programs replace the tribal JTPA (Job Training Partnership Act) programs set to expire at the end of the current program year. WIA's authorizing statutes call for a minimum annual appropriation of $55 million for Sec. 166 programs. The House Subcommittee mark also reduces WIA Summer Youth funding by 10 percent, or $2.3 million, from the current $15.8 million in tribal summer youth services under the Act. As expected, the House mark zeros out any Welfare-to-Work (WtW) funding for FY2000, due to the program's authorization expiring at the end of FY1999. NCAI urges tribes to contact House and Senate leaders and encourage them to restore funding for tribal employment and training programs to the President's FY2000 budget request.

m. Agriculture Appropriations' Includes Good and Bad Tribal Amendments - The Senate-passed version of H.R. 1906 - the FY2000 Agriculture Appropriations bill, contains Amendment No. 1526, introduced by Sen. Jeff Bingaman (D-NM) that appropriates $12 million dollars for water and waste disposal systems to benefit federally recognized Indian tribes. This money would be available to tribes who are not eligible for any other rural utility programs. Under this amendment, the 25 percent matching requirement would be eliminated allowing Rural Utilities Services (RUS) to provide 100 percent of the cost of a project. NCAI submitted a letter in support of this amendment which was placed in the record for August 4, 1999. (See Congressional Record S10197). The House-passed version of the Agriculture Appropriations bill does not contain a similar provision. NCAI urges all tribes to contact the following House and Senate Agriculture Appropriations conference committee leaders to show their support for amendment 1526: Representative Joe Skeen (R-NM), Representative Marcy Kaptur (D-OH), Senator Thad Cochran (R-MS) and Senator Herbert Kohl (D-WI).

The Cheyenne & Arapaho Tribes of Oklahoma urgently need help to oppose a move in Congress to stop the tribes from reclaiming some 7,000 acres of their Fort Reno lands from the U.S. Dept. of Agriculture (USDA). During Senate consideration of H.R. 1906, Sen. Don Nickles (R-OK), attached a rider to the Agriculture Appropriations bill that restricts the tribes from reclaiming Ft. Reno, historical land of the Cheyenne & Arapaho Tribes. The Cheyenne & Arapaho Tribes are currently engaged in a federal-tribal process to recover the USDA-held Fort Reno lands under the Surplus Property Act. The Nickles rider stops this process and strips the USDA Secretary's authority to transfer the lands to the Interior Department in trust for the tribes. Interior weighed in on the tribes' claim several months ago, finding that the tribes never sold, nor gave up the Fort Reno lands and that the USDA could return the lands under the Surplus Property Act. The USDA is still reviewing the matter.

As passed, Amendment No. 739 threatens to carve out the USDA-held Fort Reno lands from the Surplus Property Act and all existing federal law. It is designed for one purpose only, to change the rules at the end of a lengthy process in order to prevent the Cheyenne & Arapaho Tribes from regaining their lands. There is no similar provision in the House-passed Agriculture Appropriations bill. NCAI urges all tribes to contact the House and Senate Agriculture Appropriations conference committee leaders listed above and urge them to remove this amendment from H.R. 1096 in conference.

III. CONCLUSION

With the new fiscal year beginning on October 1, 1999 and no end to the budget deadlock between Congress and the Administration in sight, Indian Country must turn its focus toward the upcoming congressional conference over FY2000 Interior Appropriations as well as the possibility of this bill, along with most other spending bills, heaped into an all-inclusive Omnibus Appropriations bill for FY2000 federal program funding. NCAI urges tribes to contact members of Congress and encourage them to fulfill their fiduciary duty to American Indian and Alaska Native governments and to uphold the trust responsibility as well as preserve the Government-to-Government relationship, which includes the fulfillment of health, education, welfare and economic needs for all Indian tribes in the United States. This responsibility should never be compromised nor diminished because of any Congressional agenda or party platform. Tribes throughout the nation relinquished their lands and natural resources in exchange for this trust responsibility and we ask that the President and the Congress maintain that federal trust responsibility to Indian Country and continue to aid tribes on their journey toward self-sufficiency and self-government.

Various lists of Administrative and Congressional leaders are attached for tribes to use in corresponding with Congress and the Administration over FY2000 Appropriations' issues. Also, a comparative table of funding levels for major Indian program categories under the FY2000 Interior Appropriations bill is attached. This table compares FY1999 enacted funding levels with the President's FY2000 budget request and the funding levels contained in both the House-passed and Senate-passed FY2000 Interior Appropriations' bills.

For more information on the FY2000 Appropriations process, please contact the National Congress of American Indians at (202) 466-7767.