[Senate Report 109-118]
[From the U.S. Government Publishing Office]
Calendar No. 188
109th Congress Report
SENATE
1st Session 109-118
======================================================================
AMENDING THE INDIAN SELF DETERMINATION AND EDUCATION ASSISTANCE ACT TO
MODIFY PROVISIONS RELATING TO THE NATIONAL FUND FOR EXCELLENCE IN
AMERICAN INDIAN EDUCATION
_______
July 29, 2005.--Ordered to be printed
_______
Mr. McCain, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 1231]
The Committee on Indian Affairs, to which was referred the
bill (S. 1231), to amend the Indian Self-Determination and
Education Assistance Act to modify provisions relating to the
National Fund for Excellence in American Indian Education,
having considered the same, reports favorably thereon with an
amendment in the nature of a substitute and recommends that the
bill (as amended) do pass.
Purpose
The National Fund for Excellence in American Indian
Education Amendments Act of 2005 (S. 1231) amends the Act to
provide four key improvements which will assist the Fund in
achieving self-sufficiency. First, this legislation provides
initial seed money to the Fund for three fiscal years to
facilitate operations.
In addition, S. 1231 authorizes the Secretary to provide
funding for operational costs of the Fund on a reimbursement
basis. S. 1231 also authorizes the Board to appoint the Chief
Operating Officer rather than mandating the Secretary of the
Board serve as the Chief Operating Officer.
Finally, S. 1231 will increase the administrative cost cap
of ten percent currently in place to 20% for one year, 15% the
following year and then decreasing back to 10% thereafter.
Background
History of the Fund. In 2000, Congress amended the Act in
Public Law 106-568 and authorized the Secretary of the Interior
to establish the Fund as a federally-chartered nonprofit
corporation to accept and administer charitable donations
furthering educational opportunities of Indian children
attending Bureau-funded schools. However, the formal
establishment and commencement of operations for the Fund have
not been without considerable difficulty.
The Committee received testimony from the Acting Chair of
the Fund that after two years, the Secretary hired an Executive
Director to initiate establishment of the Fund and appointed a
Board of Directors (Board). Another six months passed before
the Board was fully installed and held its first meeting in
March, 2003.
However, in November, 2002, it was discovered that another
private foundation held the legal rights to the official name
of the Fund designated in Public Law 106-568. After
negotiations for a name-sharing agreement failed between the
Board and the private foundation, the Board sought
Congressional action to remedy any potential conflicts over the
name.
In 2004, Congress enacted Public Law 108-267, the Omnibus
Indian Advancement Act of 2000, which changed the original name
of the Fund from the ``American Indian Education Foundation''
to the ``National Fund for Excellence in American Indian
Education'', thereby eliminating the confusion and potential
conflict.
The Fund was established in July, 2004, when it officially
incorporated, and received its tax-exempt status determination
from the Internal Revenue Service in November, 2004, but has
yet to become operational.
Operational Limitations. The Committee received testimony
that the Board faces significant hurdles in beginning
operations. First, under Public Law 106-568, during the first
five years after establishment, the Secretary is authorized to
provide ``in-kind'' administrative support to the Fund and
provide funds for travel expenses of the Board--all to be
reimbursed to the Secretary by the Fund. After five years, the
Secretary may provide onlyadministrative support if space is
available and on a reimbursement basis.
In 2004, the Board presented a cooperative agreement to the
Assistant Secretary for Indian Affairs for a transfer of
$450,000 to the Fund for administrative purposes. The Office of
the Solicitor determined that any funding could be used only to
reimburse travel expenses of the Board, not for operations.
Since no funding was authorized for operational expenses, the
Fund currently cannot become operational or begin such
activities, such as marketing or soliciting donations, needed
to become operational.
In addition, the Secretary is authorized to transfer
property donated for the ``advancement of the Indian race''
under 25 U.S.C. 451 to the Fund, subject to any restrictions on
that donation imposed by the donor.
In September, 2004, the Assistant Secretary for Indian
Affairs identified approximately $1.6 million in donated funds
that could be transferred to the Fund, of which $200,000 were
restricted. Despite meeting with Department officials regarding
the transfer, the Board has indicated that no funds have been
transferred.
Summary of Major Provisions
S. 1231 provides key amendments which will assist the Fund
in achieving self-sufficiency.
Initial Seed Money. This legislation provides initial seed
money to the Fund for three fiscal years to facilitate
operations. The Committee received testimony from the Acting
Chair regarding the need for ``start-up'' funding. A review of
other federal statutes establishing federally chartered
foundations indicated that appropriations had been authorized
in amounts ranging from $5 million to $25 million per year for
a limited number of years. Thus, appropriations in the amount
of $5 million per year for the first three fiscal years
appeared to be a reasonable amount to assist the Fund in
achieving self-sufficiency, particularly in the event the
Secretary is unable to provide operational costs.
Operational Costs. This legislation clarifies the
activities for which funds may be provided to the Board. S.
1231 authorizes the Secretary to provide funding for
operational costs of the Fund on a reimbursement basis. The
Committee received testimony recommending elimination of the
reimbursement requirement. The Committee believes this
requirement is appropriate, however, it encourages the
Secretary to provide sufficient accommodations in seeking
reimbursement which would not unduly burden the Fund nor harm
direct educational services to Indian children.
Chief Operating Officer. S. 1231 also authorizes the Board
to appoint the Chief Operating Officer rather than mandating
the Secretary of the Board serve as the Chief Operating
Officer. The Committee received testimony that this designation
has not proven to be the most efficient means of organizing the
Fund. The Committee has determined that the Board should
appoint this position so that the Board can focus on more
important functions rather than being mired in the daily tasks
of the Fund's operations.
Administrative Costs. This legislation will add a provision
increasing the administrative cost cap currently in place and
set at 10% to 20% for one year, 15% the following year and then
decreasing back to 10% thereafter. The Committee received
testimony that more flexibility in the administrative cost cap
was needed to fulfill the purposes of the Fund--especially with
the obstacles the Fund faced in trying to begin operations.
While the Acting Chair testified that such administrative
caps were not imposed on other similar foundations such as the
National Parks Foundation and the Fish & Wildlife Foundation,
the Committee believed limitations were still appropriate. The
primary purpose of the Fund is to support Indian children,
through programs, services or other activities which are not
considered administrative costs. By maintaining such limits,
the Committee is assured that the emphasis of the Fund will
remain focused on serving Indian children.
Legislative History
The bill, S. 1231, was introduced on June 14, 2005, by
Senator McCain for himself and Senator Dorgan and was referred
to the Senate Committee on Indian Affairs.
An oversight hearing on Indian education was held on June
14, 2005, at which testimony was received by the Fundon the
provisions of S. 1231. The Fund expressed support for the bill and most
of the Fund's recommendations are addressed in the substitute amendment
to S. 1231.
Committee Recommendation and Tabulation of Vote
In an open business session on June 29, 2005, the Committee
considered a substitute amendment proposed by Senator McCain.
By a unanimous vote, the Committee ordered the substitute
amendment favorably reported to the full Senate with the
recommendation that the bill do pass.
Section-by-Section Analysis
Section 1. Short title
The Act may be cited as the ``National Fund for Excellence
in American Indian Education Amendments Act of 2005''.
Section 2. National fund for excellence in American Indian education
This section authorizes the Board to appoint the Chief
Operating Officer and authorizes seed money for the Fund for
fiscal years 2007 through 2009. This section also increases the
administrative cost caps from 10% to 20% for the first fiscal
year after the Fund has been in operations for one year, then
15% for the second fiscal year and then 10% thereafter.
Section 3. Administrative services and support
This section authorizes the Secretary of the Interior to
provide funding for the operating costs of the Fund on a
reimbursement basis.
Cost and Budgetary Considerations
The cost estimate for S. 1231, as evaluated by the
Congressional Budget Office, is set forth below:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 11, 2005.
Hon. John McCain,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1231, the National
Fund for Excellence in American Indian Education Amendments Act
of 2005.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Justin
Humphrey.
Sincerely,
Douglas Holtz-Eakin,
Director.
Enclosure.
S. 1231--National Fund for Excellence in American Indian Education
Amendments Act of 2005
Summary: S. 1231 would amend the Indian Self-Determination
and Education Assistance Act to authorize funding and modify
provisions for the National Fund for Excellence in American
Indian Education (National Fund). The bill would authorize the
appropriation of $5 million for each of fiscal years 2007
through 2009 for National Fund operations. Enacting the bill
would not affect direct spending or revenues.
The Congress originally authorized the National Fund in
2001 to advance and promote educational opportunities for
American Indian students enrolled in Bureau of Indian Affairs
(BIA) schools. Current funding comes from personal property
gifts and private donations.
S. 1231 contains no intergovernmental or private-sector
mandates as defined by the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 1231 is shown in the following table.
CBO estimates that implementing this bill would cost $15
million over the 2007-2010 period. This estimate assumes that
S. 1231 will be enacted near the start of fiscal year 2006 and
that the authorized amounts will be appropriated for fiscal
year 2007 and each subsequent fiscal year. The estimated
outlays reflect historical spending patterns for the other
programs in BIA. These costs would fall within budget function
500 (education, employment, training, and social services).
------------------------------------------------------------------------
By fiscal year, in millions of
dollars--
---------------------------------------
2006 2007 2008 2009 2010
------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Authorization Level............. 0 5 5 5 0
Estimated Outlays............... 0 4 5 5 2
------------------------------------------------------------------------
Intergovernmental and private-sector impact: S. 1231
contains no intergovernmental or private-sector mandates as
defined by UMRA and would impose no costs on state, local, or
tribal governments.
Estimate prepared by: Federal Costs: Justin Humphrey.
Impact on State, Local, and Tribal Governments: Lisa Ramirez-
Branum. Impact on the Private Sector: Jennifer Doleac.
Estimate Approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
Regulatory Impact Statement
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact to be incurred in carrying out
the bill. The Committee believes that S. 1231 will have minimal
regulatory or paperwork impact.
Executive Communications
The Committee has not received official statements on S.
1231 from the Department of the Interior.
Changes in Existing Law
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, the Committee notes the following
changes in existing law made by the bill, S. 1231, as ordered
reported, are shown as follows (existing law proposed to be
omitted is enclosed in black brackets, new matter is printed in
italic, existing law in which no change is proposed is shown in
roman):
AN ACT
[To promote maximum Indian participation in the government and
education of the Indian people; to provide for the
full participation of Indian tribes in certain
programs and services conducted by the Federal
Government for Indians and to encourage the
development of the human resources of the Indian
people; to establish and carry out a national
Indian education program; to encourage the
establishment of local Indian school control; to
train professionals in Indian education; and to
establish an Indian youth intern program]
PUBLIC LAW 93-638
An Act to promote maximum Indian participation in the
government and education of the Indian people; to provide for
the full participation of Indian tribes in certain programs and
services conducted by the Federal Government for Indians and to
encourage the development of the human resources of the Indian
people; to establish and carry out a national Indian education
program; to encourage the establishment of local Indian school
control; to train professionals in Indian education; and to
establish an Indian youth intern program.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
* * * * * * *
TITLE V--NATIONAL FUND FOR EXCELLENCE IN AMERICAN INDIAN EDUCATION
SECTION 501. NATIONAL FUND FOR EXCELLENCE IN AMERICAN INDIAN EDUCATION
* * * * * * *
[(g) Officers.--
(1) In general.--The officers of the Foundation shall
be a secretary, elected from among the members of the
Board, and any other officers provided for in the
constitution and bylaws of the Foundation.
(2) Secretary of foundation.--The secretary shall
serve, at the direction of the Board, as its chief
operating officer and shall be knowledgeable and
experienced in matters relating to education in general
and education of American Indians in particular.]
(g) Officers.--
(1) In general.--The officers of the Foundation shall
be--
(A) a chief operating officer, to be
appointed in accordance with paragraph (2); and
(B) any other officers, to be appointed or
elected in accordance with the constitution and
bylaws of the Foundation.
(2) Chief operating officer.--
(A) Appointment.--The Board shall appoint a
chief operating officer to the Foundation.
(B) Requirements.--The chief operating
officer of the Foundation shall--
(i) demonstrate experience and
knowledge in matters relating to--
(I) education, in general;
and
(II) education of Indians, in
particular; and
(ii) serve at the direction of the
Board;
* * * * * * *
(l) Restrictions.--
[(1) Limitation on spending.--Beginning with the
fiscal year following the first full fiscal year during
which the Foundation is in operation, the
administrative costs of the Foundation may not exceed
10 percent of the sum of--
[(A) the amounts transferred to the
Foundation Under subsection (m) during the
preceding fiscal year; and
[(B) donations received from private sources
during the preceding fiscal year.]
(1) Limitation on spending.--For each fiscal year
following the first fiscal year during which the
Foundation is in operation, the administrative costs of
the Foundation shall not exceed--
(A) for the first fiscal year, an amount
equal to 20 percent of the sum of--
(i) the amounts transferred to the
Foundation under subsection (m) during
the preceding fiscal year; and
(ii) donations received from private
sources during the preceding fiscal
year;
(B) for the second fiscal year, an amount
equal to 15 percent of the sum of--
(i) the amounts transferred to the
Foundation under subsection (m) during
the preceding fiscal year; and
(ii) donations received from private
sources during the preceding fiscal
year; and
(C) for the third fiscal year, and each
fiscal year thereafter, an amount equal to 10
percent of the sum of--
(i) the amounts transferred to the
Foundation under subsection (m) during
the preceding fiscal year; and
(ii) donations received from private
sources during the preceding fiscal
year.'';
* * * * * * *
(o) Authorization of Appropriations.--
(1) In general.--There is authorized to be
appropriated to carry out this section $5,000,000 for
each of fiscal years 2007 through 2009.
(2) Effect on other funds.--Funds appropriated under
paragraph (1) shall not reduce the amount of funds
available for any other program relating to Indian
education.
SECTION 502. ADMINISTRATIVE SERVICES AND SUPPORT
(a) Provision of Support by Secretary.--
* * * * * * *
[(2) may provide funds to reimburse the travel
expenses of the members of the Board under section
458bbb of this title; and]
(2) may provide funds--
(A) to pay the operating costs of the
Foundation; and
(B) to reimburse travel expenses of a member
of the Board under section 501; and
* * * * * * *
[(b) Reimbursements.--]
(b) Reimbursements.--
* * * and the operating and travel expenses described in
subsection (a)(2).
* * * * * * *