Federal Indian Elementary-Secondary Education Programs: Background and Issues

Prepared for Members and Committees of Congress

The federal government provides elementary and secondary education and educational assistance
to Indian children, either directly through federally-funded schools or indirectly through
educational assistance to public schools. Direct education is provided by the Bureau of Indian
Education (BIE) in the U.S. Department of the Interior, through elementary and secondary
schools funded by the BIE. Educational assistance to public schools is provided chiefly through
programs of the U.S. Department of Education (ED). The student population served by federal
Indian education programs consists of members (or descendants of members) of Indian tribes, not
Indians identified by race. Most of this Indian education population attend public schools. Most
federal data on Indian students are based on race, however, which complicates analysis of results
for the population served by federal Indian education programs.
BIE was originally part of the Bureau of Indian Affairs (BIA) in the Interior Department. The BIA
began the current system of direct Indian education in the decades following the Civil War, with
congressional approval and funding. The system developed gradually to its current structure. In
the late nineteenth century, the BIA began placing a few students in public schools, a trend that
accelerated after about 1910. At present 90% or more of the student population served by federal
Indian education programs attend public schools.
The BIE-funded education system for Indian students includes 170 schools (and 14 “peripheral
dormitories” for students attending public schools nearby). Schools and dorms may be operated
by BIE itself or by tribes and tribal organizations. A number of BIE programs provide funding
and services, supplemented by set-asides for BIE schools from ED programs. Federal funding for
Indian students in public schools flows to school districts chiefly through ED programs, with a
small addition from a BIE program. BIE and public schools are subject to the standards and
accountability provisions in the No Child Left Behind Act (NCLBA, P.L. 107-110), although not
all such provisions apply to BIE schools.
Significant authorizing legislation for BIE and ED programs, most recently reauthorized in P.L. th
107-110, are up for reauthorization in the 110 Congress. Among the issues raised by Indian
education proponents are the current reorganization of BIE, flexibility in the application of
NCLBA provisions to BIE schools, a greater role for Indian culture and languages in Indian
education programs, and restricting the use of ED supplementary Indian education funds to Indian
students’ unique needs.
This report will be updated as necessary.

Introduc tion ..................................................................................................................................... 1
Brief History of Federal Indian Education Activities......................................................................1
Students Served by Federal Indian Education Programs.................................................................7
Federal Indian Education Programs and Services.........................................................................10
Bureau of Indian Education....................................................................................................10
Statutory Authority for BIE Elementary-Secondary Schools...........................................14
BIE Education System Programs......................................................................................15
BIE Assistance to Public Schools: Johnson O’Malley Program.......................................17
BIE School Facilities Construction and Repair................................................................18
BIA Elementary-Secondary Education Appropriations....................................................18
U.S. Department of Education (ED) Indian Programs............................................................22
ED Set-Asides for BIE System Schools...........................................................................23
ED Indian Programs for Public Schools...........................................................................25
ED Indian Education Funding..........................................................................................26
BIE Schools Under the No Child Left Behind Act........................................................................30
Standards-Based Assessments...........................................................................................30
Adequate Yearly Progress.................................................................................................31
Teachers and Paraprofessionals........................................................................................32
Accountability ................................................................................................................... 32
BIE-Funded Schools Accreditation Sanctions..................................................................32
Indian Education Issues.................................................................................................................33
Bureau of Indian Education Issues..........................................................................................33
BIE Reorganization...........................................................................................................33
Definition of AYP for BIE Schools...................................................................................34
BIE School Assessments...................................................................................................34
Indian Education Issues for Public Schools............................................................................35
Definition of AYP.............................................................................................................35
Consultation with Indian Tribes........................................................................................35
Teacher Development.......................................................................................................36
Indian Education Act (IEA) Programs..............................................................................36
Figure 1. Number of Indian Students Enrolled in BIA, Public, and Private Schools, 1900-
1975 .............................................................................................................................................. 4
Figure 2. Appropriations for BIE Operations and BIA Education Construction, FY2003-
FY2008 ....................................................................................................................................... 19
Figure 3. Distribution of ED Funding for Indian Education Programs, FY2003-FY2007............27

Table 1. Number of Indian Students: Comparison of BIE, NCES, and IEA Data, School
Years 2002-2005...........................................................................................................................9
Table 2. Indian Student Data for Selected States: Comparison of IEA Count with NCES-
BIE Total, SY2002-SY2003.........................................................................................................9
Table 3. Number of BIE-Funded Schools and Peripheral Dormitories, SY2006-2007..................11
Table 4. Number of Students in BIE-Funded Schools and Dormitories, SY2005-SY2006
Student Count.............................................................................................................................12
Table 5. BIE Schools and Peripheral Dormitories and Students: Number and Percent, by
State, SY2004-2005, in Order of Number of Students...............................................................13
Table 6. Appropriations for BIE Elementary-Secondary Education Programs and BIA
Education Construction, Compared with BIA Totals, FY2003-FY2008....................................20
Table 7. Estimated Funding for Department of Education’s Indian Elementary-Secondary
Education Programs, FY2003-FY2007......................................................................................28
Author Contact Information..........................................................................................................36

The federal government provides elementary and secondary education and educational assistance 2
to Indian children, either directly through federally-funded schools or indirectly through
educational assistance to public schools. Direct education is provided by the Bureau of Indian 3
Education (BIE) in the Department of the Interior, through elementary and secondary schools
funded by the BIE. Educational assistance to public schools is provided chiefly through programs
of the U.S. Department of Education, although there are also smaller programs in the BIE and
other federal departments.
Federal provision of education services and assistance to Indian children is based not on race but
on their membership, or eligibility for membership, in Indian tribes, which are political entities.
Federal Indian education programs are intended to serve Indian children who are members, or at
least second-degree descendants of members, of one of the 562 federally recognized Indian tribes
or of certain other Indian tribes and groups. The federal government considers its Indian
education programs to be based on its trust responsibility for 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). The federal government
considers Indian education programs to be discretionary, like other education programs, not an
entitlement like Medicare.
Indian children, as United States citizens, are also eligible for the federal government’s general
programs of education 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 data on
students served by these programs, an overview of the programs and their funding, a discussion
of the application to BIE schools of key provisions of the No Child Left Behind Act (P.L. 107-

110), and brief discussions of selected issues in Indian education.

U.S. government concern with the education of Indians began with the Continental Congress, 4
which in 1775 appropriated funds to pay expenses of 10 Indian students at Dartmouth College. ththth
Through the rest of the 18 century, the 19 century, and much of the 20 century, Congress’s

LeeAnne M. Kane, CRS 2006 Summer Intern, assisted in the preparation of this report.
2 In this report, the term “Indianmeans American Indians and Alaska Natives (the latter term includes the American
Indians, Eskimos (Inuit and Yupik), and Aleuts of Alaska).
3 The BIE was formerly the Office of Indian Education Programs (OIEP) in the Bureau of Indian Affairs (BIA). In
2006, the Secretary of the Interior moved the OIEP out of the BIA and made it an agency equivalent to the BIA,
renaming it the BIE. Both bureaus are under the Assistant Secretary - Indian Affairs. For education programs, this
report usesBIE for current information and programs and “BIA for historical periods.
4 Ford, Worthington Chauncey, ed., Journals of the Continental Congress, 1774-1789, Vol. II, 1775, May 10-September
20 (Washington: GPO, 1905), pp. 176-177. Congresss stated intent was to keep the students from returning to their
homes in British Canada.

concern was for 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 was to change Indians’ cultural patterns into Euro-American ones—in a 5
word, to assimilate them.
From the Revolution 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 6
fit. The first Indian treaty providing for any form of education was in 1794. The first treaty 7
providing for academic instruction was in 1803. Altogether over 150 treaties with individual 8
tribes provided for instructors, teachers, or schools, whether vocational, academic, or both, either
permanently or for a limited period of time. The first U.S. statute authorizing appropriations to 9
“promote civilization” among Indian tribes was the Indian Trade and Intercourse Act of 1793,
but the first authorization and appropriation specifically for academic instruction of Indian 10
children was the Civilization Act of 1819. 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 of such treaty, mission, tribal, and New 11
York schools reached into the hundreds by the Civil War.
After the Civil War, the U.S. government began to create a federal Indian school system, with
schools not only funded but also constructed and operated by the BIA with central policies and 12
oversight. The Board of Indian Commissioners in 1869 recommended the establishment of 13
government schools and teachers, and in 1870 Congress passed the first general appropriation 14
for Indian schools not provided for under treaties. The initial appropriation was $100,000, but
both the amount appropriated and the number of schools operated by the BIA rose swiftly

Prucha, Francis Paul, The Great Father: The United States Government and the American Indians (Lincoln:
University of Nebraska Press, 1984), pp. 135-136.
6 Treaty with the Oneida, Etc., Art. III, December 2, 1794, 7 Stat. 47, 48. The United States agreed not only to construct
gristmills and sawmills for the Oneida, Tuscarora, and Stockbridge tribes but also to send persons to instruct the tribes
in their use. See also Alice C. Fletcher, Indian Education and Civilization, U.S. Bureau of Education Special Report, thnd
Sen. Ex. Doc. 95, 48 Cong., 2 sess. (Washington: GPO, 1888), p. 162.
7 Treaty with the Kaskaskia, Art. 3d, August 13, 1803, 7 Stat. 78, 79.
8 Newton, Nell Jessup, ed.-in-chief, Cohen’s Handbook of Federal Indian Law 2005 Edition (Newark, NJ: LexisNexis
Matthew Bender, 2005), p. 1356. Congress ended treaty-making with Indian tribes in 1871.
9 Sec. 9, Act of March 1, 1793, Chap. 19, 2nd Cong., 2nd sess., 1 Stat. 329, 331. As civilizing factors, the section
specifically authorizes domestic animals, farming equipment, goods, money, and resident agents, but not teachers or
10 Act of March 3, 1819, Chap. 85, 15th Cong., 2nd sess., 3 Stat. 516.
11 Fletcher, Indian Education and Civilization, p. 197.
12 Szasz, Margaret Connell, and Ryan, Carmelita, “American Indian Education,” in Wilcomb E. Washburn, vol. ed.,
Handbook of North American Indians, Vol. 4, Indian-White Relations (Washington: Smithsonian, 1988), p. 290.
13 Fletcher, Indian Education and Civilization, p. 167.
14 An Act Making Appropriations for the Current and Contingent Expenses of the Indian Department ..., Act of July 15,
1870, Chap. 296, 41st Cong., 2nd sess., 16 Stat. 335, 359. See also U.S. American Indian Policy Review Commission,
Task Force Five: Indian Education, Report on Indian Education, Committee Print (Washington: GPO, 1976), p. 69.

thereafter.15 The BIA created both boarding and day schools, including off-reservation industrial 16
boarding schools on the model of the Carlisle Indian Industrial School (established in 1879). 17
Most BIA students attended on- or off-reservation boarding schools. BIA schools were chiefly 18
elementary and vocational schools.
An organizational structure for BIA education began with a Medical and Education Division
during 1873-1881, appointment of a superintendent of education in 1883, and creation of an 19
education division in 1884. The education of Alaska Native children, however, along that of
other Alaska children, was assigned in 1885 to the Department of the Interior’s Office of 2021
Education, not the BIA. Mission, tribal, and New York state schools continued to operate, and
the proportion of school-age Indian children attending a BIA, mission, tribal, or New York school 22
rose slowly.
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 23
children for whose schooling the BIA was responsible. The BIA after 1910 pushed to move 24
Indian children to nearby public schools and to close BIA schools. Congress provided some
appropriations to pay public schools for Indian students, although they were not always sufficient 25
and moreover were not paid where state law entitled Indian students to public education.
In 1921 Congress passed the Snyder Act26 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

Stuart, Paul, Nations Within a Nation: Historical Statistics of American Indians (New York: Greenwood Press,
1987), pp. 135, 165.
16 Founded by Army Captain Richard H. Pratt on an unused Army base in Carlisle, PA, the school’s model of educating
Indian students in an off-reservation manual labor boarding school, away from students’ families and cultures, became
well-known. Pratt, its first superintendent, publicized the school and its emphasis on assimilation. Carlisle was funded
through Indian appropriations bills and private donations. It closed in 1918. See Szasz and Ryan, “American Indian
Education,” pp. 290-291.
17 Prucha, Great Father, pp. 815-816.
18 Szasz and Ryan, “American Indian Education, pp. 290-294.
19 Hill, Edward E., comp., Guide to Records in the National Archives of the United States Relating to American Indians
(Washington: National Archives and Records Service, 1981), p. 24. See also Szasz and Ryan, “American Indian
Education,” pp. 290, 293.
20 Hill, Guide to Records, p. 112; and Szasz and Ryan, “American Indian Education,” p. 297. Authorization for Alaska
Native education was in §13, Act of May 17, 1884, Chap.53, 48th Cong. 1st sess., 23 Stat. 24, 27-28.
21 After 1870, most tribal schools were in Oklahoma, operated by one of theFive Civilized Tribes (Cherokee,
Chickasaw, Choctaw, Creek, and Seminole), as they were then called.
22 Szasz and Ryan,American Indian Education,” p. 291.
23 U.S. Department of the Interior, Office of Indian Affairs, Annual Report of the Commissioner of Indian Affairs
[Fiscal Year 1890-1891] (Washington: GPO, 1891), p. 71.
24 Prucha, Great Father, pp. 823-825.
25 Prucha, Great Father, pp. 824-825.
26 Act of November 2, 1921, 42 Stat. 208, as amended; 25 U.S.C. 13.

By 1920 more Indian students were in public schools than BIA schools.27 Figure 1 displays the
changing number of Indian students in federal, public, and other schools from 1900 to 1975. The
shift to public schools accompanied the increase in the percentage of Indian youths attending any 28
school, which rose from 40% in 1900 to 60% in 1930.
In 1934, to simplify the reimbursement of public schools for Indian students, Congress passed the 29
Johnson-O’Malley (JOM) Act, authorizing the BIA to contract with states and territories for 30
Indian education (and other services to Indians).
Figure 1. Number of Indian Students Enrolled in BIA, Public, and Private Schools,
Source: U.S. Department of the Interior, Bureau of Indian Affairs, Report on BIA Education. Final Review Draft
([Washington]: 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.

U.S. Department of the Interior, Bureau of Indian Affairs, Report on BIA Education: Excellence in Indian Education
Through the Effective Schools Process. Final Review Draft ([Washington]: The Department, 1988), Table 1, p. 15.
28 Reddy, Marlita A., ed., Statistical Record of Native North Americans (Detroit: Gale Research, 1993), p. 141. The
percentages are of Indians aged 5 to 20 and are based on Census data. Szasz and Ryan state,In 1928 almost 90 percent
of all Indian children were enrolled in some school” (American Indian Education,” p. 294). The discrepancy in
percentages may be related to differing age ranges and differing definitions of the Indian population.
29 P.L. 73-167, Act of April 16, 1934, 48 Stat. 596, as amended; 25 U.S.C. 452-457.
30 Szasz and Ryan,American Indian Education,” p. 295.

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 31
some extent, to move its curriculum toward Indian instead of solely Euro-American subjects. In 32
addition, in 1931 responsibility for Alaska Native education was transferred to the BIA.
The first major non-Interior Department federal funding for Indian education in the 20th century 33
began in 1953, when the Impact Aid Act of 1950—which directed the U.S. Commissioner of 34
Education to pay public school districts to help fund the education of children in “federally 35
impacted areas”—was amended to cover Indian children eligible for BIA schools. Further
changes to the Impact Aid law in 1958 and the 1970s increased the funding that went to children 36
on Indian lands. Congressional appropriations eventually made Impact Aid the primary, and
JOM the supplemental, source of federal funding to public schools for Indian education. By 37
FY1981, Impact Aid funding for Indian students amounted to $147 million, while JOM funding 38
the previous year was only $28.1 million.
In 1966 Congress added further non-Interior funding for Indian education by amending the 39
Elementary and Secondary Education Act (ESEA) of 1965, the major act authorizing federal
education aid to public school districts, to add a set-aside for BIA schools to the program of 40
grants to help educate students from low-income families.
A congressional study of Indian education in the 1960s41 that was highly critical of federal Indian
education programs led to further expansion of federal non-Interior assistance for Indian 42
education, embodied in the Indian Education Act (IEA) of 1972. The IEA established the Office

Szasz and Ryan, “American Indian Education, pp. 294-295; and Prucha, Great Father, pp. 836-839, 977-983. The
Meriam Report was an influential study of federal Indian affairs undertaken by the Institute for Government Research
(Lewis A. Meriam, ed., The Problem of Indian Administration [Baltimore: Johns Hopkins Press, 1928]).
32 Szasz and Ryan,American Indian Education,” p. 297.
33 P.L. 81-874, Act of September 30, 1950, 64 Stat. 1100, as amended; currently codified at 20 U.S.C., Chap. 70,
subchap. VIII.
34 Then in the Federal Security Agency, the office became part of the newly created Department of Health, Education
and Welfare in 1953. See U.S. National Archives and Records Administration, Records of the Office of Education
(Record Group 12), section 12.1, “History, at http://www.archives.gov/research/guide-fed-records/groups/
35 P.L. 83-248, Act of August 8, 1953, 67 Stat. 530.
36 LaCounte, Larry, Tribal Perspective of the Impact Aid Program (Washington: National Indian Policy Center,
[1993?]), pp. 3-5.
37 U.S. Congress, Senate Select Committee on Indian Affairs, Indian Education Oversight, hearings, May 18-19, 1982,
97th Cong., 2nd sess. (Washington: GPO, 1983), p. 433.
38 U.S. Department of Education, National Center for Education Statistics, Digest of Education Statistics 2006, NCES
2007-017 (Washington: GPO, 2007), p. 536.
39 P.L. 89-10, Act of April 11, 1965, 79 Stat. 27, as amended; chiefly codified at 20 U.S.C., Chap. 70.
40 Sec. 102, Elementary and Secondary Education Amendments of 1966, P.L. 89-750, Act of Nov 3, 1966, 80 Stat
41 U.S. Congress, Senate Labor and Public Welfare Committee, Special Subcommittee on Indian Education, Indian
Education: A National Tragedy, A National Challenge (Washington: GPO, 1969).
42 Title IV of the Education Amendments Act of 1972, P.L. 92-318, Act of June 23, 1972, 86 Stat. 235, 334, as
amended; currently codified at 20 U.S.C. 7401 et seq.

of Indian Education (OIE) within the Department of Health, Education and Welfare and
authorized OIE to make grants to public school districts with Indian children and to BIA 43
schools. The OIE was the first organization outside of the Interior Department created expressly
to oversee a federal Indian education program. Education Department (ED) aid for Indian
education has become larger, in terms of dollars, than BIA school funding, and ED assistance has
also become a significant source of funding for BIA schools (see below).
Federal Indian education policy also 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-funded school (the Rough Rock Demonstration 44
School on the Navajo Reservation). In 1975, through enactment of the Indian Self-45
Determination and Education Assistance Act (ISDEAA), Congress authorized all Indian tribes
and tribal organizations, such as tribal school boards, to contract to operate their BIA schools.
Three years later, in Title XI, Part B, of the Education Amendments of 1978, Congress required 46
the BIA “to facilitate Indian control of Indian affairs in all matters relating to education.” 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 4748
personnel. Ten years later, the Tribally Controlled Schools Act (TCSA) of 1988 authorized
grants to tribes and tribal organizations to operate their BIA schools, in addition to self-
determination contracts. These laws provide that grants and self-determination contracts be for
the same amounts of funding as the BIA would have expended on operation of the same 49
Indian control in public schools received an initial boost from the 1972 IEA. The IEA required
that public school districts applying for its new grants prove adequate participation by Indian 50
parents and tribal communities in program development, operation, and evaluation. The 1972
IEA also amended the Impact Aid program to mandate Indian parents’ consultation in school 51
programs funded by Impact Aid. In 1975 the ISDEAA added to the Johnson-O’Malley Act a
requirement that public school districts with JOM contracts have either a majority-Indian school 52
board or an Indian parent committee that has approved the JOM program.
The number of schools in the BIA school system has shrunk over the years, through
administrative consolidation and congressional closures. For example, all BIA-funded schools in

The OIE was transferred to the new Department of Education in 1980.
44 Prucha, Great Father, p. 1102.
45 P.L. 93-638, Act of January 4, 1975, 88 Stat. 2203, as amended; 25 U.S.C. 450 et seq.
46 P.L. 95-561, Title XI, Part B, Act of November 1, 1978, 92 Stat. 2143, 2316, as amended; currently codified at 25
U.S.C., Chap. 22. The quote is from §1130 of the original act (now §1131 of the amended act).
47 Prucha, Great Father, p. 1146.
48 P.L. 100-297, Title V, Act of April 28, 1988, 102 Stat. 130, 385, as amended; 25 U.S.C., Chap. 27.
49 Provisions are currently codified at 25 U.S.C. 2007 and 25 U.S.C. 2503.
50 Sec. 421(a) of the 1972 act; currently codified, as amended, at 20 U.S.C. 7424(c)(4).
51 P.L. 92-318, §411(a),(c)(2), 86 Stat. 334-339; currently codified, as amended, at 20 U.S.C. 7704. See also Szasz and
Ryan, “American Indian Education,” p. 298.
52 25 U.S.C. 456.

Alaska were transferred to the state of Alaska between 1966 and 1985, removing an estimated 53

120 schools from BIA responsibility. The number of BIA-funded schools and dormitories stood 5455

at 233 in 1930 and 277 in 1965, but fell to 227 in 1982 and to 180 in 1986 before rising to 185 5657
by 1994; it currently stands at 184. Since the 1990s, Congress has limited both the number of 58
BIA schools and the grade structure of the schools. The number of Indian students educated at 59
BIA schools has for the last 20 years fluctuated between about 39,000 and 48,000. In 2006, as
noted above, the Interior Secretary separated BIA 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.

It is commonly estimated that BIE schools serve roughly 10% of Indian students, public schools
serve roughly 90%, and private schools serve 1% or less. These general percentages, however, are
not certain. Data on Indian students come from differing programs and sources. Different federal
Indian education programs serve different, though overlapping, sets of Indian students. Their
student data also differ (and overlap).
Although different federal Indian education programs have different eligibility criteria, none of
the eligibility criteria are based solely on race. Indian students do not receive the benefits because
they are racially Indian. Eligibility is based on the political status of the groups of which the
students are members or descendants of members.
The BIE school system, for instance, serves students who are members of federally recognized
Indian tribes, or 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-60
reservation boarding school. Many Indian tribes require less than one-fourth degree of tribal or
Indian blood for membership, so many BIE Indian students have less than one-fourth Indian
blood. Separately, the BIE’s Johnson-O’Malley (JOM) program, according to its regulations,

U.S. Congress, House Committee on Appropriations, Department of the Interior and Related Agencies rdst
Appropriations for 1994, hearings, part 8, 103 Cong., 1 sess. (Washington: GPO, 1993), p. 168.
54 U.S. Department of the Interior, Bureau of Indian Affairs, Report on BIA Education: Excellence in Indian Education
Through the Effective Schools Process. Final Review Draft ([Washington: The Department], 1988), p. 17.
55 U.S. Department of the Interior, Bureau of Indian Affairs, Branch of Education, Fiscal Year 1965 Statistics
Concerning Indian Education (Haskell, Kansas: Haskell Institute Publications Service, [1966]), p. 15.
56 U.S. Department of the Interior, Bureau of Indian Affairs, Office of Indian Education Programs, Fiscal Year 1995
Annual Education Report ([Washington: The Bureau, n.d. (1996?)]), p. vi.
57 U.S. Department of the Interior, Bureau of Indian Affairs, Budget Justifications Fiscal Year 2008 ([Washington: The
Department], 2007), p. IA-EDUC-6.
58 The limitations are in the annual BIA appropriations acts.
59 FY1995 Annual Education Report and Budget Justifications FY2008, loc.cit.
60 25 U.S.C. 2007(f).One-fourth degree is the equivalent of onefull-blood” grandparent out of four.

serves students in public schools who are at least one-quarter degree Indian blood and recognized 61
by BIA as eligible for BIA services.
Education Department programs under the Indian Education Act (IEA), on the other hand, serve a
broader set of students, including not only those who are (1) BIE-eligible but also those who are
(2) members (or one-quarter blood descendants of members) of two types of non-federally-
recognized tribes, state-recognized tribes and tribes whose federal recognition was terminated
after 1940; (3) members of an organized Indian group that received a grant under the IEA as it 62
was in effect before the passage of the Improving America’s Schools Act of 1994; (4) Eskimo,
Aleut, or other Alaska Native; or (5) considered to be Indian by the Secretary of the Interior, for 63
any purpose. Both public school districts and BIE schools are eligible for IEA programs, so data
on IEA beneficiaries include BIE students as well as public school Indian students. Public school
districts must have a minimum number or percentage of IEA-eligible Indian students to receive a
grant. IEA grants are administered by the OIE, so the OIE is the source of data on IEA students.
Another major ED program, the Impact Aid program, serves among others public schools whose 64
students reside on “Indian lands.” The students residing on Indian lands for whom Impact Aid is
provided need not, however, be Indian.
Indian student data based on race present additional problems. Not all students reported as
racially Indian are members or descendants of members of politically recognized Indian tribes,
and not all members of such tribes may be reported as racially Indian.
For example, ED’s National Center for Education Statistics (NCES), which collects and analyzes 65
student and school data and produces the National Assessment of Educational Progress (NAEP),
publishes reports on Indian students’ characteristics, academic achievements, and NAEP results.
NCES data, however, are based on racial or ethnic identification (except data on BIE students), so
the data will include students who are reported as racially Indian even though they are not
members of tribes and do not fall into federal programs’ eligibility categories. NCES’s race-based
Indian student population is not the same as federal programs’ Indian student population. The two
populations overlap to a very great extent, but the degree of overlap has not been determined.
NCES data based on race, then, cannot be assumed to represent completely accurately the Indian
student population served by federal Indian programs.
Tables 1 and 2 below attempt to illustrate the size of the problem. Table 1 shows BIE, IEA, and
NCES data for Indian students for school years (SY) 2002-2003 through SY2004-2005. The
NCES counts are far larger than the IEA counts for each school year not only by themselves (see
row 2) but also when BIE counts are added in (row 3) for better comparability with the IEA count
(row 4). The greater number of NCES Indian students might be explained if one argued that
NCES counts include all IEA Indian students and that the additional students are otherwise
eligible but are attending non-IEA-eligible school districts. But state-by-state data—Table 2

25 CFR 273.12.
62 P.L. 103-382, Act of October 20, 1994, 108 Stat. 3518.
63 20 U.S.C. 7491(3).
64 25 U.S.C. 7703(a)(1).
65 NAEP is often known asthe nation’s report card.

compares NCES-plus-BIE totals with IEA data for selected states—show that NCES student
counts are not always greater than IEA counts for the same state (see Alabama and Oklahoma).
The disagreements between NCES and IEA data suggest that NCES counts may not include all
IEA Indian students, and that IEA counts may include eligible Indian students who are not
counted as racially Indian.
Tables 1 and 2 show the significant differences between the IEA and NCES numbers and suggest
the difficulty of estimating BIE’s share of the national total of Indian students (Table 1, rows 5
and 6).
There is, then, no single source of data on all Indian students served by federal Indian education
programs. This situation creates problems for Indian education statistics and analysis.
Table 1. Number of Indian Students: Comparison of BIE, NCES, and IEA Data,
School Years 2002-2005
Row School Type Sources Basis of Indian SY2002-SY2003-SY2004-
Status SY2003 SY2004 SY2005
1 BIE schoolsa BIE Attendance 46,163 45,857 45,811
2 Public schools NCES Race 581,227 590,374 581,481
3 Public and BIE and Attendance plus 627,390 636,231 627,292
BIE schools NCES race
(row 1 plus row 2)
4 Public and BIE schools OIE IEA eligibility 453,905 470,338 459,795
receiving IEA grants
5 Percent BIE (row 1 BIE and Attendance and 7.4% 7.2% 7.3%
divided by row 3) NCES race
6 Percent BIE (row 1 BIE and Attendance and 11.3% 10.8% 11.1%
divided by row 4) OIE IEA eligibility
Notes: For sources and list of abbreviations, see Table 2.
a. Excludes students in BIE peripheral dormitories.
Table 2. Indian Student Data for Selected States: Comparison of IEA Count with
NCES-BIE Total, SY2002-SY2003
State NCES Plus BIE Total IEA Count
Alabama 5,786 9,322
Arizona 75,735 60,080
California 54,674 31,326
Oklahoma 112,826 115,489
Michigan 26,609 12,317
New Mexico 46,858 40,925
North Dakota 12,288 8,203

State NCES Plus BIE Total IEA Count
Texas 13,168 1,563
Total for All States 627,390 453,905
Sources: for Tables 1 and 2:
NCES: U.S. Department of Education, National Center for Education Statistics, Common Core of Data (CCD),
“State Nonfiscal Survey of Public Elementary/Secondary Education,” query results generated Feb. 22 and
26, 2007.
BIE: U.S. Department of the Interior, Bureau of Indian Education, unpublished spreadsheets transmitted Jan. 3,
OIE: U.S. Department of Education, Office of Indian Education, unpublished spreadsheet transmitted Feb. 23,
BIE—Bureau of Indian Education
IEA—Indian Education Act
NCES—National Center for Education Statistics
OIE—Office of Indian Education

Federal Indian education programs serve Indian elementary-secondary students in both public
schools and BIE system schools. Except for one BIE program, public schools do not 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 BIE and from ED. The BIE estimates that it provides about two-thirds of BIE-66
funded schools’ overall funding and ED provides most of the remaining third. This section of
the report profiles first the BIE school system and programs and second those ED programs that
provide significant funding for Indian education.
The BIE funds a system consisting of elementary and secondary schools, which provide free 67
education to eligible Indian students, and “peripheral dormitories” (discussed below). The BIE
was formerly the Office of Indian Education Programs within the Bureau of Indian Affairs (BIA).
It was split off into a separate bureau in 2006 but like the BIA is under the Assistant Secretary - 68
Indian Affairs within the Interior Department. The BIE system is administered by a director and

U.S. Department of the Interior, Bureau of Indian Affairs, Budget Justifications and Performance Information, Fiscal
Year 2008 ([Washington: The Department, 2007]) (hereinafter cited as BIA, Budget Justifications FY2008), p. IA-
67 BIE also funds post-secondary institutions and programs not discussed in this report. A small number of BIE-funded
elementary-secondary schools also receive funding as public schools from their states.
68 BIA, Budget Justifications FY2008, pp. IA-EDUC-5 to -6.

headquarters office in Washington, DC, a national service center in Albuquerque, NM, and 21
education line offices (ELOs) across Indian Country. ELOs provide supervision and technical 69
support for the schools and peripheral dorms.
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. Among the combinations of grade levels 70
offered in BIE schools are K-2, K-3, K-6, K-8, K-12, 3-9, 6-8, and 9-12. Peripheral dormitories
house students who attend nearby public or BIE schools; these dorms are also located both on and
off reservations.
Elementary-secondary schools funded by the BIE may be operated either directly by the BIE or
by tribes and tribal organizations through grants or contracts authorized under the Tribally
Controlled Schools Act (TCSA) of 1988 or the Indian Self-Determination and Education
Assistance Act (ISDEAA) of 1975. (See the discussion of these two acts in “Statutory Authority
for BIE Elementary-Secondary Schools,” below).
BIE funds 170 schools and 14 peripheral dorms. Table 3 below shows the number of BIE-funded
schools and peripheral dorms, by type of operator. The majority of BIE-funded schools are 71
tribally operated, and the number of tribally operated schools continues to rise.
Table 3. Number of BIE-Funded Schools and Peripheral Dormitories, SY2006-2007
Schools and Peripheral Tribally BIE- Total
Dormitories Operated Operated
Total 123 61 184
Elementary/Secondary Schools 110 60 170
Day schools 86 32 118
Boarding schools 24 28 52
Peripheral Dormitories 13 1 14
Source: U.S. Department of the Interior, Bureau of Indian Education, unpublished table transmitted June 27,
The total number of BIE schools and peripheral dorms and the class structure of each school have
been limited by Congress since the mid-1990s. Through annual appropriation acts, Congress has
since 1994 prohibited BIE from funding schools that were not in the BIE system as of September
1, 1996, and has since 1996 prohibited use of BIE funds to expand a school’s grade structure

BIA, Budget Justifications FY2008, pp. IA-EDUC-27 to -28; and BIE, telephone conversation, October 4, 2007.
70 U.S. Department of Education, Office of Elementary and Secondary Education, Bureau of Indian Affairs, Office of
Indian Education Programs, Consolidated State Application Accountability Workbook (last updated August 31, 2006),
at http://www.ed.gov/admins/lead/account/stateplans03/csabia.pdf, p. 8.
71 BIA, Budget Justifications FY2008, p. IA-EDUC-19.

beyond the grades in place as of October 1, 1995.72 Congress was concerned that adding new BIE
schools or expanding existing schools would, in circumstances of limited financial resources, 73
“diminish funding for schools currently in the system.”
Only Indian children attend the BIE school system, with few exceptions. In SY2006-07, BIA
estimates that BIE-funded schools and peripheral dorms served approximately 46,000 Indian 74
students representing over 250 tribes. Table 4 shows the student count in BIE day and boarding
schools and peripheral dormitories in SY2005-06, by type of operator.
Table 4. Number of Students in BIE-Funded Schools and Dormitories, SY2005-
SY2006 Student Count
Schools and Peripheral Tribally BIE- Total
Dormitories Operated Operated
Total 26,763 15,880 42,643
Elementary/Secondary Schools 25,403 15,737 41,140
Day schools 22,881 11,942 34,823
Boarding schools 2,522 3,795 6,317
Peripheral Dormitories 1,360 143 1,503
Source: U.S. Department of the Interior, Bureau of Indian Education, unpublished table transmitted Aug. 1,
BIE-funded schools and peripheral dorms are generally small. The average size of BIE-funded 75
schools was 270 students in SY2003-2004, compared to 521 students for public elementary and 76
secondary schools in SY2003-2004. In SY2002-2003, 69% of BIE-funded schools had 300 or 77
fewer children in attendance.
The 184 BIE-funded schools and peripheral dormitories are located on 63 reservations in 23 78
states. These BIE facilities are not evenly distributed across the country. In SY2004-2005,
almost 72% of BIE schools and dorms and just over 76% of BIE students were located in 4 of the
23 states: Arizona (29% of students), New Mexico (23%), South Dakota (16%), and North
Dakota (8%). Table 5 shows the distribution of BIE schools and students across the 23 states.

See, e.g., the Department of the Interior, Environment, and Related Agencies Appropriations Act, 2006, P.L. 109-54,
Act of August 2, 2005, 119 Stat. 499, 516.
73 U.S. Congress, Senate Appropriations Committee, Department of the Interior and Related Agencies Appropriations
Bill, 1995, report to accompany H.R. 4602, 103rd Cong., 2nd sess., S.Rept. 103-294 (Washington: GPO, 1994), p. 58.
74 BIA, Budget Justifications FY2008, pp. IA-EDUC-12, -27.
75 Excludes BIE peripheral dorms. CRS calculation based on unpublished BIE data transmitted January 3, 2007.
Adding in students in BIE peripheral dorms raises the average size to 259 students in SY2003-2004.
76 U.S. Department of Education, National Center for Education Statistics, Digest of Education Statistics 2005, NCES
2006-030 (Washington: GPO, 2006), Table 87.
77 U.S. Department of Education, National Center for Education Statistics, Status and Trends in the Education of
American Indians and Alaska Natives, NCES 2005-108 (Washington: GPO, 2005), p. 32.
78 Ibid.

There are no BIE schools or students in Alaska, a circumstance directed by Congress (see “Brief 79
History of Federal Indian Education Activities,” above).
Table 5. BIE Schools and Peripheral Dormitories and Students: Number and Percent,
by State, SY2004-2005, in Order of Number of Students
Schools and Dorms Students
Number Percent Number Percent
1 Arizona 54 29.3 13,797 29.0
2 New Mexico 44 23.9 10,965 23.0
3 South Dakota 22 12.0 7,766 16.3
4 North Dakota 12 6.5 3,703 7.8
5 Mississippi 8 4.3 1,816 3.8
6 Washington 8 4.3 1,511 3.2
7 Oklahoma 5 2.7 1,405 3.0
8 North Carolina 1 0.5 1,127 2.4
9 Wisconsin 3 1.6 834 1.8
10 California 2 1.1 822 1.7
11 Minnesota 4 2.2 806 1.7
12 Montana 3 1.6 459 1.0
13 Oregon 1 0.5 430 0.9
14 Utah 2 1.1 418 0.9
15 Michigan 2 1.1 327 0.7
16 Maine 3 1.6 310 0.7
17 Wyoming 1 0.5 237 0.5
18 Florida 2 1.1 230 0.5
19 Idaho 2 1.1 204 0.4
20 Iowa 1 0.5 162 0.3
21 Nevada 2 1.1 107 0.2
22 Kansas 1 0.5 80 0.2
23 Louisiana 1 0.5 72 0.2
Total 184 100 47,588 100
Source: U.S. Bureau of Indian Education, unpublished table transmitted Jan. 3, 2007.

Annual appropriation acts for the Department of the Interior regularly include an administrative provision prohibiting
BIA expenditures to support operation of schools in Alaska (except through the Johnson-OMalley program); see, e.g.,
P.L. 109-54 (119 Stat. 499, 516).

Currently, BIE-funded schools, dorms, and programs are administered under a number of statutes.
The key statutes are summarized here.

This act provides a broad and permanent authorization for federal Indian programs, including for
“[g]eneral support and civilization, including education.” The act was passed because Congress
had never enacted specific statutory authorizations for most BIA activities, including BIA
schools. Congress 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 in order 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.

ISDEAA, as amended, provides for tribal administration of certain federal Indian programs,
including BIA and BIE programs. The act allows tribes to assume some control over the
management of BIE-funded education programs by negotiating “self-determination contracts”
with BIE for tribal management of specific schools or dorms. 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 82
more schools.

This act declares federal policy on Indian education and 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

Act of November 2, 1921, 42 Stat. 208, as amended; 25 U.S.C. 13.
81 P.L. 93-638, act of January 4, 1975, 88 Stat. 2203, as amended; 25 U.S.C. 450 et seq.
82 ISDEAA’s Title IV, “Tribal Self-Governance, §§401-408 (25 U.S.C. 458aa-458hh), authorizesself-governance
compacts with tribes under which a tribe may operate multiple BIA programs under a single compact, but BIE’s
formula funding for schools is excluded from these compacts (§403(b)(4)(B); 25 U.S.C. 458cc(b)(4)(B)).
83 P.L. 95-561, Title XI, Part B, Act of November 1, 1978, 92 Stat. 2143, 2316, as amended by §1042 of the Native
American Education Improvement Act of 2001, which was Title X, Part D, of the No Child Left Behind Act, P.L. 107-
110, Act of January 8, 2002, 115 Stat. 2007, as further amended; 25 U.S.C., Chap. 22 (§§2000 et seq.).

tribally operated schools (described below), early childhood development program grants (also
described below), and grants and technical assistance for tribal departments of education.

TCSA added grants as another means, besides ISDEAA contracts, by which Indian tribes and
tribal organizations could operate BIE-funded schools. The act requires that each grant include all
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 85
Funding for and operation of BIE-funded schools are carried out through a number of different
programs. The major BIE funding programs 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 86
The Indian School Equalization Program (ISEP) is the formula-based method by which
Congressional appropriations for BIE-funded schools’ academic (and, if applicable, residential)
operating costs are allocated among the schools. Before allocation under the formula, part of
ISEP funds are set aside for program adjustments and contingencies.
The ISEP formula, although authorized under the Education Amendments of 1978,87 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 students’ grade levels and 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, and a
school’s geographic isolation and size. These weighted figures are called “weighted student units”
(WSUs). Total WSUs are calculated for each school, by school year. All schools’ WSUs are then
totaled nationally, for the current and each of the preceding three school years. The preceding
three years’ national WSUs are then averaged (by totaling and dividing by three). This national
three-year average WSU figure is then divided into the Congressional appropriation for ISEP for
the current school year, to yield a national dollar value for a single WSU. This national dollar

P.L. 100-297, Title V, Act of April 28, 1988, 102 Stat. 130, 385, as amended; 25 U.S.C., Chap. 27.
85 Cohen’s Handbook of Federal Indian Law 2005 Edition, p. 1361.
86 Federal fiscal years (FY) begin on October 1 and end on the following September 30. School years (SY) begin on
July 1 (three-quarters of the way through the fiscal year) and end the following June 30. Hence BIE appropriations for
FY2007 (October 1, 2006-September 30, 2007) will be used to fund SY2007-2008 (July 1, 2007-June 30, 2008).
87 25 U.S.C. 2007.

value of a WSU is then multiplied by each school’s current-year WSU total to get that school’s 88
funding allocation for the current school year.
To transport its students, both day and boarding, the BIE funds an extensive student transportation
system. Student transportation funds provide for buses, fuel, maintenance, and bus driver salaries
and training, as well as certain commercial transportation costs for some 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 89
unimproved roads).
BIE’s early childhood development program funds the agency’s Family And Child Education
(FACE) grants to tribes and tribal organizations for services for pre-school Indian students and
their parents. FACE programs include early childhood education for children under 6 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 FY2006 FACE programs were being 90
carried out at 38 BIE-funded schools.
Administrative cost grants pay administrative and indirect costs for tribally operated BIE-funded
schools. 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 91
percentage rate” for each school, with a minimum grant of $200,000.
This program funds the operation of educational facilities at all BIE-funded 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 92
and intrusions.

25 CFR Part 39, Subparts A-C.
89 BIA, Budget Justifications FY2008, pp. IA-EDUC-15 to -16, and 25 CFR Part 39, Subpart G.
90 BIA, Budget Justifications FY2008, pp. IA-EDUC-17 to -18.
91 BIA, Budget Justifications FY2008, pp. IA-EDUC-18 to -19, and 25 CFR Part 39, Subpart J.
92 BIA, Budget Justifications FY2008, p. IA-EDUC-19.

The BIE receives funding from the Education Department under set-asides in the Elementary and
Secondary Education Act, the Individuals with Disabilities Education Act, and other acts, and
allocates the funds to its schools. As noted above, the BIE estimates that it provides about two-93
thirds of BIE-funded schools’ overall funding and ED provides most of the remaining third.
More detailed discussion of ED funding for BIE is provided in “Department of Education Indian
Programs” and Table 7, below.
The Johnson O’Malley (JOM) program provides supplementary financial assistance, through
contracts, to meet the unique and specialized educational needs of Indian students in public
schools and non-sectarian private schools. BIE contracts with tribes and tribal organizations to
distribute funds to schools or other programs providing JOM services, and it also contracts
directly with states and public school districts for JOM programs. Most JOM funds are distributed
through tribal contractors. Prospective contractors must have education plans that have been
approved by an Indian education committee made up of Indian students’ parents. JOM funds are
distributed to contractors by formula, based on a count of Indian students and average per-pupil
operating costs, and 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 94
standards or requirements without them. JOM serves about 272,000 students in 33 states, 95
according to the BIA.
Enacted in 1934, the Johnson O’Malley Act authorized the Interior Secretary to contract directly
with states, local governments (such as school districts), colleges, and private entities “for the
education, medical attention, agricultural assistance, and social welfare, including relief of 96
distress, of Indians in such State.” Education eventually came to be the chief area of JOM
contracting. After enactment of Impact Aid gave public school districts a separate and much

BIA, Budget Justifications FY2008, p. IA-EDUC-8.
94 BIA, Budget Justifications FY2008, p. IA-EDUC-20; 25 CFR Part 273; U.S. Bureau of Indian Affairs, Office of
Indian Education Programs, “JOM,” available at http://www.oiep.bia.edu; and unpublished data transmitted April-May
2006. Also, National Indian Education Association,The Johnson OMalley Program, February 12, 2007, available at
95 U.S. Department of the Interior, Bureau of Indian Affairs, Budget Justifications and Performance Information, Fiscal
Year 2005 ([Washington: The Department, 2004]), p. BIA-58. Student counts have remained effectively unchanged
since FY1996, because House and Senate Appropriations Committees’ directives in 1994 to move JOM funding to
specific parts of the BIA budget, combined with a statutory prohibition on changing tribes base funding (25 U.S.C
450j-1(b)(2)), had the effect offreezing” tribal JOM programs and student counts (BIA, telephone conversation,
November 2, 2000).
96 P.L. 73-167, Act of April 16, 1934, Chap. 147, 73rd Cong., 48 Stat. 596, as amended; 25 U.S.C. 452-457. The quote
is from §1 (25 U.S.C. 452).

larger source of federal funding for Indian students (see “Brief History of Federal Indian
Education Activities,” above), Indian groups argued that JOM funds should be used only for
Indian students and not for districts’ general operating costs. The BIA amended its regulations in
1974 to restrict school districts’ use of JOM funds to supplementary programs purely for Indian
students (the same regulations also made it clear that Indian tribes were eligible for JOM 97
contracts). In 1985 Congress enacted a statute limiting JOM contracts to supplementary 98
educational services for Indian students.
The BIA funds construction activities for BIE schools and school facilities. Construction may
mean replacing all facilities on an existing BIE school campus, replacing individual buildings, or
making major and minor repairs and improvements. Included in the education construction 99
program is improvement and repair of BIE employee housing units. Construction may be
administered either by BIA or by tribes under ISDEAA or TCSA.
BIA appropriations for elementary-secondary education are divided between program funds,
expended through the BIE, and construction and related spending carried out through the BIA.
Table 6 below shows detailed appropriations for BIE programs and BIA education construction 100
for FY2003-FY2008.
Appropriations for BIE elementary-secondary programs have remained relatively stable, rising 101
8% over the 6-year period, from $533.3 million in FY2003 to $577.9 million in FY2008. As a
proportion of BIA’s Operation of Indian Programs (OIP) budget, BIE elementary-secondary
program funding has consistently stood at just below 30% of OIP appropriations. Total BIA
spending on elementary-secondary education, however, has fallen 13% over the same period,
from $827.1 million to $720.8 million, and has shrunk from 37% of total BIA appropriations to
31%. As illustrated in Figure 2, changes in BIA education construction appropriations account
for the 13% reduction; current appropriations for education construction have fallen 51%, from
$293.8 million in FY2003 to $142.9 million in FY2008. A major reason for the FY2008 reduction 102
is a backlog of unexpended funds for incomplete education construction projects. The 103
explanatory statement for the Consolidated Appropriations Act, 2008, making FY2008

39 Fed.Reg. 30114-30116 (August 21, 1974). See also Prucha, Great Father, pp. 1143-1144.
98 P.L. 99-190, §101(d) [Title I], Act of December 19, 1985, 99 Stat. 1185, 1235.
99 BIA, Budget Justifications FY2008, pp. IA-CON-ED-2 to -4.
100 For more information on BIA FY2008 appropriations, see CRS Report RL34011, Interior, Environment, and
Related Agencies: FY2008 Appropriations, coordinated by Carol Hardy Vincent.
101 Totals for the BIE elementary-secondary education program were calculated by CRS.
102 See BIA, Budget Justifications FY2008, pp. IA-CON-ED-1 to -8.
103 P.L. 110-161, act of December 26, 2007. BIA appropriations are in Division F, Title I.

appropriations for the BIA, approved a BIA plan to use FY2008 (and previous years’) funding to 104
complete existing projects and alleviate shortfalls before beginning new projects.
Figure 2. Appropriations for BIE Operations and BIA Education Construction,
$600BIA Education
$400BIE Elementary
$0 FY03 FY04 FY05 FY06 FY07 FY08

Congressional Record, December 17, 2007, p. H16129.

Table 6. Appropriations for BIE Elementary-Secondary Education Programs and BIA Education Construction, Compared with
BIA Totals, FY2003-FY2008
(current $ in thousands)
FY2003a FY2004 FY2005 FY2006 FY2007 FY2008e
BIA Operation of Indian Programs (OIP) 1,845,246 1,893,291 1,926,091 1,962,190 1,988,223 2,047,809
BIE Elementary-Secondary Education 533,292 542,353 536,505 542,420 549,293 577,862
Percent of OIP 29% 29% 28% 28% 28% 28%
Elementary/Secondary (Forward-Funded) 445,072 452,874 449,721 457,750 458,310 479,895
ISEP Formula Funds 347,204 349,919 348,073 350,062 351,817 358,341
ISEP Program Adjustments 670 659 1,145 5,116 7,533 3,205
Student Transportation 37,262 38,116 39,444 42,738 42,833 47,844
Early Childhood Development 15,164 15,604 15,355 15,281 12,067 15,024
iki/CRS-RL34205 Administrative Cost Grants 44,772 48,576 45,704 44,553 44,060 43,373
g/w Education Program Enhancements — — — — — 12,108
leak Elementary/Secondary Programs 76,128 77,557 76,218 75,887 72,390 74,620
://wiki Facilities Operation 55,423 57,106 55,976 55,812 56,047 56,504 b
http Residential Education Placement Program 3,797 3,785 3,732 3,704 3,713 3,715
Juvenile Detention Education — — — — 630 620
Johnson-O’Malley Program 16,908 16,666 16,510 16,371 12,000 13,782
Education Program Managementc 12,092 11,922 10,566 8,783 18,593 23,347
All BIA Construction 345,988 346,827 319,129 271,582 271,823 203,754
Education Constructiond 293,795 294,954 263,372 206,787 204,956 142,935
Percent of All BIA Construction 85% 85% 83% 76% 75% 70%
Replacement School Construction 124,409 139,612 105,550 64,530 83,891 46,716
Replacement Facility Construction — — — — 26,873 9,748
Employee Housing Repair 3,100 3,081 3,038 1,971 1,973 1,942

FY2003a FY2004 FY2005 FY2006 FY2007 FY2008e
Education Facilities Improvement and Repair 163,306 146,335 142,531 140,286 92,219 84,529
Tribal School Construction Demonstration Program 2,980 5,926 12,253 0 0 0
All BIA Appropriations 2,257,244 2,306,401 2,295,702 2,274,270 2,308,304 2,291,279
Total: BIE Elementary-Secondary Education and Education Construction 827,087 837,307 799,877 749,207 754,249 720,797
Percent of All BIA Appropriations 37% 36% 35% 33% 33% 31%
Sources: “Annual comprehensive budget table,” in U.S. Department of the Interior, Bureau of Indian Affairs, Budget Justifications and Performance Information, Fiscal Year
[2005-2008] ([Washington: The Department], 2004-2007); and U.S. Bureau of Indian Affairs, “FY2008 Indian Affairs Budget,” unpublished table transmitted Jan. 15, 2008.
Notes: In this table, “BIA” includes all Indian programs under the Assistant Secretary - Indian Affairs in the Department of the Interior. Totals for BIE elementary-
secondary education were calculated by CRS.
BIA—Bureau of Indian Affairs
BIE—Bureau of Indian Education
iki/CRS-RL34205ISEP—Indian School Equalization Program
s.orOIP—BIA Operation of Indian Programs (includes all BIA and BIE programs except construction, miscellaneous payments, land and water rights settlements, and loan guarantees)
a. FY2003 BIA data have been rearranged from BIA’s budget structure at that time to BIA’s current budget structure.
://wikib. Formerly called the Institutionalized Disabled Program.
c. Includes funds for management of BIE elementary, secondary, and post-secondary education programs.
d. Includes small amount of funds for BIA post-secondary education institutions.
e. FY2008 appropriation figures are after rescission.

In SY2004-2005, approximately 414,000-581,000 Indian elementary-secondary students attended
public schools, accounting for between about 89% and 93% of Indian students (for discussion of
the data ranges, see “Students Served,” above). The U.S. Department of Education (ED) provides
funding specifically for Indian elementary-secondary education to both public and BIE schools;
about three-quarters of this funding goes to public schools and related organizations (see Table 7
According to NCES data for SY2002-SY2003, Indian students in public schools were more likely 105
than the total student population to attend rural schools. Indian public school students were also
likely to be concentrated: while they constituted only 1.2% of public school students nationwide,

40% of Indian students attended public schools where they made up 25% or more of the school’s 106

student body, and 26% attended schools where they made up 50% or more of all students.
Schools where Indians constituted 25% or more of the student body were likely to be relatively 107
small: over 70% of such schools had less than 300 students. Schools where Indians were less 108
than 25% of the student body were larger: over 68% of such schools had over 300 students.
Geographically, according to NCES data, Indian public school students were spread across more
states than BIE students, appearing in all 50 states and the District of Columbia (compare Table 5 109
above). In SY2004-2005, however, over half of all Indian public school students were in just 5
states: Oklahoma (20%), Arizona (11%), California (9%), and New Mexico and Alaska (6% 110
ED’s assistance specifically for Indian education is not to be confused with its general assistance
to elementary-secondary education nationwide. Indian students benefit from ED’s general
assistance as citizens, not as Indians. This report covers ED Indian assistance—that is, assistance
statutorily specified for Indians—not general ED assistance that may also benefit Indian students.
ED Indian funding to public and BIE schools flows through a number of programs, most 111
authorized under the Elementary and Secondary Education Act (ESEA) or the Individuals with 112
Disabilities Education Act (IDEA), although other acts also authorize Indian education
assistance. Some general ED programs have set-asides for BIE schools, while other programs

NCES 2005-108, pp. 30, 137.
106 NCES 2005-108, pp. 30-31. NCES data recalculated by CRS for public schools only.
107 NCES 2005-108, p. 33.
108 Ibid.
109 NCES 2005-108, pp. 136-137.
110 U.S. Department of Education, NCES, CCD, “State Nonfiscal Survey of Public Elementary/Secondary Education,”
data generated February 22, 2007. SY2004-05 data for Nevada were missing, so SY2003-04 data for Nevada were used
instead and percentages were recalculated accordingly.
111 P.L. 89-10, Act of April 11, 1965, 79 Stat. 27, as amended, especially by the No Child Left Behind Act of 2001,
P.L. 107-110, Act of January 8, 2002, 115 Stat. 1439, as further amended; chiefly codified at 20 U.S.C., Chap. 70.
112 P.L. 94-142, Act of November 29, 1975, 89 Stat. 773, as amended by P.L. 108-446, Title I, §101, Act of December
3, 2004, 118 Stat. 2647; codified at 20 U.S.C., Chap. 33 (§§1400 et seq.).

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. BIE schools are included in 113114
the definition of “local educational agency” (LEA) in ESEA and IDEA, 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.
Major ED Indian programs are profiled below, divided between set-aside programs for BIE
schools and all other programs. For more information on ESEA programs discussed below, see
CRS Report RL33960, The Elementary and Secondary Education Act, as Amended by the No
Child Left Behind Act: A Primer. For more information on IDEA programs, see CRS Report
RS22590, The Individuals with Disabilities Education Act (IDEA): Overview and Selected Issues.
See Table 7 below for a list of all ED programs for Indian elementary-secondary education.
ED funds that are set aside for BIE schools are administered and allocated by the BIE. See Table

7 for the amount of funds under each ED program. As LEAs, BIE schools are also eligible to 115

receive assistance under many ED non-Indian programs, outside of BIE administration, but
these funds are not discussed here. BIE schools may also receive assistance under some ED
Indian programs for public schools discussed below.
Title I, Part A, of ESEA116 authorizes formula grants, through state educational agencies, to public
school districts (LEAs) for the education of disadvantaged children. ESEA Title I-A grants go to
LEAs to serve pupils in schools with relatively large numbers or percentages of children from
low-income families, and are used to provide supplementary education services, as either
schoolwide programs or targeted assistance to the lowest-achieving students. Section 1121 of 117
ESEA sets aside 1% of Title I-A appropriations for the Interior Secretary and the outlying
areas. Interior Department 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). The amount
of the 1% that goes to the Interior Department is the amount determined by the Secretary of
Education to be needed to meet the special educational needs of the Indian students (in recent 118
years it has been approximately 70% of the total set-aside).

ESEA, §9101(26(C); 20 U.S.C. 7801(26)(C).
114 IDEA, §602(19)(C); 20 U.S.C. 1401(19)(C).
115 BIA, Budget Justifications FY2008, p. IA-EDUC-9.
116 20 U.S.C., Chap. 70, Subchap. I, Part A. For more information on the ED program, see CRS Report RL33731,
Education for the Disadvantaged: Reauthorization Issues for ESEA Title I-A Under the No Child Left Behind Act.
117 20 U.S.C. 6331.
118 Calculated from “Fiscal Year 2001-2008 State Tables for the U.S. Department of Education: State Tables by
Program, U.S. Department of Education, Budget Service http://www.ed.gov/about/overview/budget/statetables/

Title II, Part A, Subpart 1, of ESEA119 authorizes grants to states for the recruitment, retention,
and professional development of highly-qualified teachers and principals in elementary-120
secondary schools. Section 2111(b)(1)(A)(ii) of ESEA12 sets aside 0.5% of appropriations for
programs in BIE schools.

Title IV, Part B, of ESEA121 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 122
advance student academic achievement. Section 4202(a)(3) of ESEA sets aside no more than
1% of Title IV-B appropriations for the BIE and the outlying areas. The amount of the 1% that
goes to the BIE is determined by the Secretary of Education.
The Indian Education Act authorizes a formula-based allocation for BIE schools, in addition to 123
the LEA formula grants for which BIE schools are eligible as LEAs. See “Indian Education
Act,” below, for a more detailed discussion.
Part B of IDEA124 authorizes formula grants to states to help them provide a free appropriate
public education to children with disabilities. States make subgrants to LEAs. Funds may be used
for salaries of teachers or other special-education personnel, education materials, transportation, 125
occupational therapy, or other special-education services. Section 611(b)(2) of IDEA reserves 126
1.226% of state-grant appropriations for the Interior Secretary. Section 611(h) of IDEA directs
the Interior Secretary to allocate 80% of the 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. In recent years, appropriations acts have limited annual increases for BIE schools

20 U.S.C., Chap. 70, Subchap. II, Part A, Subpart 1. For more information on the ED program, see CRS Report
RL31882, Teacher Quality Enhancement Grants (Title II, Part A of the Higher Education Act): Overview and
Reauthorization Issues.
120 20 U.S.C. 6611(b)(1)(A)(ii).
121 20 U.S.C., Chap. 70, Subchap. IV, Part B. For more information on the ED program, see CRS Report RL31240, 21st
Century Community Learning Centers: Background and Funding.
122 20 U.S.C. 7172(a)(3).
123 ESEA, §7113(d); 20 U.S.C. 7423(d).
124 20 U.S.C., Chap. 33, Subchap. II.
125 20 U.S.C. 1411(b)(2).
126 20 U.S.C. 1411(b)(2), (h).

under IDEA to the rate of inflation, so the Interior set-aside is now below the 1.226% set in
Some ED programs may be intended solely for Indian students, some may specifically include
Indian and non-Indian students, and some may mention Indian students as a target of the
assistance (along with other intended beneficiaries). ED programs (or portions of programs) that
are specifically for Indian students are discussed below. In some of these programs, funding may
go to BIE schools in addition to public schools.
Impact Aid, Title VIII of ESEA,127 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 128
are having a significant number of children enrolled who reside on “Indian lands,” which is 129
defined as Indian trust and restricted lands, lands conveyed to Alaska Native entities under the 130
Alaska Native Claims Settlement Act of 1971, public lands designated for Indian use, and 131
certain lands used for low-rent housing. Impact Aid funds are distributed by formula directly to
LEAs and are used for basic operating costs, special education, and facilities construction and
maintenance. The Education Department estimates that currently about 121,000 Indian students 132
benefit from Impact Aid each year. The amount of Impact Aid funding going to LEAs because
of Indian lands makes it the largest ED Indian education program. Among the LEAs to which
Impact Aid goes are a few BIE schools.
Title VII, Part A, of ESEA133 authorizes formula grants to eligible public school districts, BIE
schools (as LEAs), and (in certain circumstances) Indian tribes for supplementary education
programs to assist Indian students to meet challenging state standards. The supplementary
programs can include tutoring, after-school programs, dropout prevention, early childhood and
family programs, culturally related activities, and many other activities. For an LEA to be
eligible, at least 10 Indian students must be enrolled or at least 25% of its total enrollment must

20 U.S.C., Chap. 70, Subchap. VIII. For more information on this ED program, seeCRS Report RL34119, Impact
Aid for Public K-12 Education: Reauthorization Under the Elementary and Secondary Education Act, by Rebecca R.
Skinner and Richard N. Apling.
128 ESEA, §8013(5), (7); 20 U.S.C. 7713(5), (7).
129 Trust lands and restricted lands are not taxable by states or local governments, including LEAs. Trust lands are lands
held by the federal government in trust for an Indian tribe or individual; restricted lands are lands held by an Indian
tribe or individual subject to federal restrictions on alienation.
130 P.L. 92-203, Act of December 18, 1971, 85 Stat. 688; 43 U.S.C. 1601 et seq.
131 20 U.S.C. 7713(5), (7).
132 U.S. Department of Education, Budget Service, unpublished table, transmitted March 2, 2007.
133 20 U.S.C., Chap. 70, Subchap. VII.

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 Indian education committee of parents, teachers, and secondary students. In addition to LEA
formula grants, the act requires the Secretary of Education to allocate a formula-based amount for
distribution to the Interior Secretary for BIE schools.
The IEA also authorizes several competitive grant programs. One provides demonstration grants
to develop and test services and programs to improve Indian students’ educational opportunities
and achievement; LEAs, colleges, tribes and tribal organizations, and BIE schools are eligible for
these grants. 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 IEA authorizes national programs for gifted and talented
Indian students, and also the National Advisory Council on Indian Education, which advises the
Education Secretary and Congress on Indian education.
Title VII, Part C, of ESEA134 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.
ED Indian education funding goes primarily to public schools and related organizations. Less
than a quarter of ED Indian education funds is transferred to BIE schools (see Table 7, below).
For most ED Indian education programs, the funding pattern during FY2003-FY2007 showed an
increase from FY2003 to FY2004, a smaller increase from FY2004 to FY2005, a decline from
FY2005 to FY2006, and a recovery in FY2007 to amounts slightly less than FY2005.
ED’s transfers to BIE are authorized chiefly under ESEA and IDEA. The two largest set-asides
for BIE schools come from the LEA grant program for disadvantaged children under Title I, Part
A, of ESEA, and the special education grants to states under Part B of IDEA. Together these two
set-asides account for about 80% of ED Indian education funds transferred to BIE.
Impact Aid is the largest single ED Indian education program, as Figure 3 illustrates. The second
largest program is the Indian Education Act, especially its formula grants to LEAs.

20 U.S.C., Chap. VII, Subchap. C.

Figure 3. Distribution of ED Funding for Indian Education Programs, FY2003-FY2007
Source: Table 7.

Table 7. Estimated Funding for Department of Education’s Indian Elementary-Secondary Education Programs, FY2003-FY2007
($ in thousands)
Education Department (ED) Programsa FY2003 FY2004 FY2005 FY2006 FY2007
ED Funds Transferred to BIE Pursuant to Statutes 209,109 219,076 220,706 217,111 217,774
Percent of ED Total 24% 23% 23% 23% 23%
ESEA Title I-A Grants to Local Educational Agencies 81,886 90,093 91,322 88,423 89,762
IDEA Part B Special Education Grants to States 80,459 81,617 83,546 86,306 86,306
ESEA Title II-A Improving Teacher Quality State Grants 14,581 14,577 14,510 14,635 14,365
ESEA Title IV-B 21st Century Community Learning Centers 7,145 7,317 7,565 7,323 7,129
IDEA Part C Grants for Infants and Families with Disabilities 5,360 5,486 5,442 5,388 5,223
ESEA Title I-B Reading First 4,968 5,120 5,208 5,146 5,093
ESEA Title IV-A Safe and Drug-Free Schools 4,750 4,750 4,750 4,750 4,750
iki/CRS-RL34205 ESEA Title II-D Educational Technology State Grants 5,115 5,085 3,646 2,001 2,007
s.or ESEA Title VI-A-1 State Assessment Grants 1,900 1,950 2,000 2,000 2,000
leakMcKinney-Vento Homeless Assistance Act Title VII-B
Homeless Children and Youth 546 596 625 619 619
://wiki ESEA Title VI-B Rural Education 418 420 427 422 422
ESEA Title I-B-4 Literacy through School Libraries 62 99 98 97 97
ESEA Title I-F Comprehensive School Reform 1,918 1,966 1,567
Other ED Funds for Indian Education 679,978 730,490 738,001 719,317 737,806
Percent of ED Total 76% 77% 77% 77% 77%
ESEA Title VIII Impact Aidb 502,737 551,457 559,457 545,454 563,761
ESEA Title VIII Impact Aid - Basic Support 472,111 495,861 503,166 515,813 519,712
ESEA Title VIII Impact Aid - Disabilities 21,685 21,393 21,222 20,731 20,731
ESEA Title VIII Impact Aid - Construction 8,942 34,203 35,069 8,910 23,318
ESEA Title VII-A Indian Education Actb 121,573 120,856 119,889 118,690 118,683
ESEA Title VII-A-1 Indian Education Act - LEA Grants 96,502 95,933 95,166 95,331 95,331

Education Department (ED) Programsa FY2003 FY2004 FY2005 FY2006 FY2007
ESEA Title VII-A-2 Indian Education Act - Special Programs 19,870 19,753 19,595 19,399 19,399
ESEA Title VII-A-3 Indian Education Act - National Programs 5,201 5,170 5,129 3,960 3,953
ESEA Title VII-C Alaska Native Education Equity 30,798 33,302 34,224 33,908 33,908
Carl D. Perkins Vocational and Technical Education Act Title I-D Native American Program 14,903 14,938 14,929 14,780 14,780
ESEA Title III-A-1 English Language Acquisition 5,000 5,000 5,000 5,000 5,000
ESEA Title I-B-3 Even Start 4,968 4,938 4,502 1,485 1,674
Total ED Indian Elementary-Secondary Education Programs 889,087 949,566 958,706 936,428 955,580
Sources: U.S. Department of Education, Budget Service, unpublished tables, transmitted on various dates, 2003-2007. Most recent table was transmitted March 2, 2007.
Notes: Columns may not sum to totals due to rounding.
BIE—Bureau of Indian Education (U.S. Department of the Interior)
iki/CRS-RL34205ED—U.S. Department of Education
g/wESE—Elementary and Secondary Education Act
leakIDEA—Individuals with Disabilities Education Act
LEA—Local education agency (school district)
://wikia. The number and letter sequence following each act’s initials or title is: title number - part number - subpart number.
b. Some grants go to BIE schools.

Amendments to ESEA by the No Child Left Behind Act (NCLBA)135 expanded significantly
ESEA’s requirements of schools receiving assistance under ESEA Title I, Part A. The key
provisions of ESEA amended by NCLBA concern
• student assessments and standards,
• positive school outcomes, as defined by “adequate yearly progress” (AYP),
• highly-qualified teachers and qualified classroom paraprofessionals, and
• accountability of states, school districts (LEAs), and schools for AYP.
Under NCLBA, schools must make adequate yearly progress as measured by their state’s
standards-based assessments. Schools that fail to make AYP for two consecutive years or more
must go through a series of three accountability steps—school improvement, corrective action,
and school restructuring—each of which includes certain actions and deadlines. The
accountability steps proceed until the school has achieved AYP for two consecutive years. (For
full summaries of NCLBA requirements, see CRS Report RL31284, K-12 Education: Highlights
of the No Child Left Behind Act of 2001 (P.L. 107-110) and CRS Report RL33371, K-12
Education: Implementation Status of the No Child Left Behind Act of 2001 (P.L. 107-110).)
BIE-funded schools are generally subject to the key provisions of ESEA amended by NCLBA,
with some specific exceptions and options, described below. BIE-funded schools are defined as
LEAs in NCLBA, although the schools are not subject to the jurisdiction of state educational 136
agencies (SEAs) but rather to that of the BIA. Many NCLBA statutory and regulatory
requirements may be waived by the Secretary of Education, and Indian tribes as well as SEAs and 137
LEAs may request waivers from the Secretary.
Assessments of schools and students must be developed or adopted by the SEA and be based on 138
the state’s “challenging student academic achievement standards,” but the choice of
assessments to be used in BIE-funded schools depends on how the school is accredited. State-
accredited BIE schools must use either the state’s assessments or other appropriate assessments
approved by the Secretary of the Interior; BIE schools accredited by a regional accreditation
agency must use appropriate assessments, approved by the Interior Secretary, that meet NCLBA
requirements and are consistent with assessments used by other schools in the state or region; and
BIE schools accredited by a tribal accreditation agency or a tribal education division must use the
tribal agency’s or division’s assessments if the Interior Secretary ensures that the assessments

NCLBAs amendments to ESEA, in titles I-IX of NCLBA, are codified at 20 U.S.C., Chap. 70, §§6301 et seq.
136 20 U.S.C. 7801(26)(C). BIA-funded schools definition as LEAs is limited by a minimum size requirement.
137 20 U.S.C. 7861.
138 20 U.S.C. 6311(b)(3) and 6316(a)(1)(A).

meet NCLBA requirements.139 Assessment provisions related to testing limited English proficient 140
(LEP) students, and to federal tests under the National Assessment of Educational Progress 141
(NAEP), also apply to BIE-funded schools. (For a more detailed discussion of NCLBA
assessments, see CRS Report RL31407, Educational Testing: Implementation of ESEA Title I-A
Requirements Under the No Child Left Behind Act.)
States, LEAs, and schools must demonstrate AYP, as measured by standards-based 142143
assessments. Each state defines AYP for its LEAs and schools. BIE-funded schools must also
make AYP, but the definition of AYP for BIE-funded schools is assigned to the Secretary of the
Interior. The Secretary of the Interior must define AYP using negotiated rulemaking, taking into
account the schools’ unique needs and circumstances, and the definition must be consistent with
NCLBA; or the Secretary may use the definition of the state where the BIE-funded school is 144
located. In either case a tribe or tribal school board may seek a waiver of all or part of the
Interior Secretary’s definition and use its own alternative AYP definition, unless the Secretary of 145
Education determines the alternative definition does not meet NCLBA requirements.
NCLBA requires that a state’s AYP definition must include “annual measurable objectives” for
public school students, not only as a whole, but also for certain subgroups: economically
disadvantaged students, students from major racial and ethnic groups, students with disabilities, 146
and LEP students. A state’s annual objectives must set a minimum percentage of students
scoring at a proficient or higher level on the state’s assessments of math and reading achievement, 147
and this minimum percentage must be applicable to each of the student subgroups. The 148
minimum percentage must be increased at least once every three years, and must rise to 100% 149
of pupils scoring proficient or higher by the end of SY2013-2014. BIE-funded schools are also
subject to these requirements for annual measurable objectives, disaggregated assessment data,
and minimum percentages of students scoring proficient or above, for AYP determinations,
although (as noted above) the BIA takes the role of the state for these schools. (For further
discussion of AYP under NCLBA, see CRS Report RL32495, Adequate Yearly Progress (AYP):
Implementation of the No Child Left Behind Act.)

20 U.S.C. 6311(m).
140 20 U.S.C. 6311(b)(3)(C)(ix)(III) and 6312(b)(1)(A). Such students are sometimes referred to as English language
learners (ELLs).
141 20 U.S.C. 6311(c)(2) and 6312(b)(1)(F).
142 20 U.S.C. 6311(b)(2).
143 20 U.S.C. 6311(b)(2)(C).
144 20 U.S.C. 6316(g)(1).
145 20 U.S.C. 6316(g)(1)(B).
146 20 U.S.C. 6311(b)(2)(C). The subgroups must be of a minimum size to “yield statistically reliable information.”
147 20 U.S.C. 6311(b)(2)(G)(iii).
148 20 U.S.C. 6311(b)(2)(H)(iii).
149 20 U.S.C. 6311(b)(2)(F).

NCLBA requires states and LEAs to ensure that teachers are highly qualified, and that school 150
paraprofessionals meet certain qualification requirements, by various deadlines. BIE-funded
schools are subject to this requirement as well. (For further discussion of teacher requirements in
NCLBA, see CRS Report RL33333, A Highly Qualified Teacher in Every Classroom:
Implementation of the No Child Left Behind Act.)
Schools failing to make AYP for two consecutive years or more enter a series of steps intended to
enable them to make AYP. The first step, “school improvement,” includes a school plan, technical
assistance, and supplemental education services (SES) from the LEA, public school choice for 151
students in the school failing to make AYP, and LEA notification to the school’s parents. The
second step, “corrective action,” continues school improvement actions but must also include at
least one of the following actions: replacement of school staff, a new curriculum, a decrease in
school management’s authority, advice from outside experts, extended school day or year, or 152
internal school reorganization. The third step, “restructuring,” continues school choice, SES,
and planning, but requires the LEA to implement one of the following: making the school a
public charter school, replacing all school staff, contracting school operations to an outside entity, 153
a takeover by the SEA, or other fundamental reforms in school governance. States must review 154
LEAs annually to determine if their schools are making AYP.
NCLBA makes BIE-funded schools subject to these three accountability steps,155 but with some
exceptions or added options. BIE-funded schools are excluded from the requirements for public 156
school choice, SES, and annual state reviews. Responsibility for development of the school
plan in the school improvement step, and for all corrective actions and restructuring, is assigned
to the BIA for BIE-operated schools and to the school board for BIE-funded contract and grant 157158
schools. Technical assistance for both types of schools, however, is the BIA’s responsibility.
Title X, Part D, of NCLBA amended one of the major BIA education laws, the Education
Amendments of 1978 (see “Statutory Authority for BIE Elementary-Secondary Schools,” above),
to subject BIE-funded schools that are neither accredited nor candidates for accreditation, by

20 U.S.C. 6319.
151 20 U.S.C. 6316(b)(1)(E), (b)(3)-(6).
152 20 U.S.C. 6316(b)(7)(C)(iv).
153 20 U.S.C. 6316(b)(8)(B).
154 20 U.S.C. 6316(c).
155 20 U.S.C. 6316(g)(2).
156 Ibid.
157 20 U.S.C. 6316(g)(3)-(4).
158 20 U.S.C. 6316(g)(3).

certain accrediting agencies, to actions similar to ESEA’s accountability actions.159 Parallels
include school plans, technical assistance, parental notification, school choice options to transfer
to other BIE-funded schools or public schools (with transportation provided), staff or
administrative changes, tribal option to take over BIE-operated schools, and school operation by 160
an outside contractor. These sanctions must be waived, however, if the school’s failure to
become accredited, or be a candidate for accreditation, is due to certain circumstances beyond the
school board’s control, such as a significant decline in financial resources, a natural disaster, or 161
the poor condition of the school’s facilities, vehicles, or other property.

Most significant issues for Indian education concern NCLBA provisions in the ESEA that affect
both public and BIE schools. According to the BIE, 70% of BIE schools failed to make AYP in 162
SY2004-2005; this compares with 26% of all U.S. schools that failed to make AYP in the same 163
school year. Congress is currently addressing the reauthorization of NCLBA, and the National
Indian Education Association (NIEA) has proposed a number of amendments to NCLBA 164
provisions in ESEA on many topics, discussed below.
BIE issues include the Administration’s reorganization of the BIE school system (proposed in
response to the widespread failure among BIE schools to make AYP), the definition of AYP for
BIE schools, and the assessments used to measure AYP in BIE schools.
BIE’s organization had consisted of a central office; 23 education line offices (ELOs), each run by
an education line officer, which oversee schools in a particular area; and the 170 individual
schools, each with its school board. The Administration argues that BIE had too few high-level
administrators in the central office and the ELOs, too few educational specialists in the ELOs to
assist schools, and an imbalance in the numbers of schools assigned each ELO, and that these
insufficient management resources made it impossible to oversee schools closely enough to bring

Native American Education Improvement Act of 2001, P.L. 107-110, Title X, Part D, §1042, Act of January 8,
2002, 115 Stat. 1439, 2007, as amended; 25 U.S.C., Chap. 22, §§2000 et seq.
160 25 U.S.C. 2001(b)(3), (7)-(8).
161 25 U.S.C. 2001(b)(8)(B).
162 U.S. Department of the Interior, Bureau of Indian Affairs, Budget Justifications and Performance Information,
Fiscal Year 2008: Indian Affairs (Washington: The Department, 2007), p. IA-EDUC-7. For SY2005-2006 the
percentage failing to make AYP is 69% (BIE, telephone conversation, October 4, 2007).
163 U.S. Department of Education, National Center for Educational Statistics, State Education Reforms, Table 1.6,
available at http://nces.ed.gov/programs/statereform/saa_tab6.asp?referrer=tables. According to this table, state
percentages of schools failing to make AYP vary from 2% (Wisconsin) to 66% (Hawaii).
164 See National Indian Education Association,National Indian Education Association’s Proposed Amendments to the
Elementary and Secondary Education Act,” March 30, 2007, available at http://www.niea.org/.

them up to AYP. The BIE reorganization involves adding high-level “educational, financial, and
administrative managers” at the central office, upgrading ELOs “to attract skilled educational
professionals,” rearranging ELO areas to balance the number of schools assigned each ELO,
reducing the number of ELOs (currently 21), and adding more “specialists in education program 165
delivery, special education, residential programs” and other skills to better assist BIE schools. A
large number of Indian tribes have objected to the reorganization, arguing that the BIE did
insufficient consultation with tribes before beginning to implement the reorganization, that
rearrangement of ELO areas would in many cases move an ELO too far from the communities
whose schools the ELO was overseeing, that funds were being transferred from education
programs to finance the reorganization, and that spending the reorganization funds at the school
level would better assist schools to make AYP. In New Mexico and the Dakotas, tribes got federal 166
district courts to suspend BIE reorganization.
Questions for Congress on the BIE reorganization may include whether BIE schools will benefit
more from increased administrative resources or increased spending at the school level, whether
the reorganization would improve schools’ chances of making AYP, and whether to specify BIE
structure in the reauthorization of the major statute governing BIE education programs, the 167
Education Amendments of 1978.
As noted above, under ESEA as amended by NCLBA, the Secretary of the Interior defines AYP
for BIE schools, but a tribe or school board may seek a waiver and an alternative AYP 168
definition. The NIEA seeks to allow not only tribes or school boards but also consortia of these
entities to seek AYP waivers; to create an approval process with deadlines (with automatic
approval if the Secretary misses a deadline), written notifications and responses, and explicit
explanations for disapprovals; and to eliminate the Secretary of Education in the approval of an 169
alternative AYP definition.
As noted above, the assessments applied to BIE schools depend on the accrediting agency. The
NIEA proposes that BIE schools granted AYP waivers be allowed to choose the assessments they 170
think appropriate for their definition of AYP.

U.S. Department of the Interior, The Interior Budget In Brief, Fiscal Year 2008 (Washington: The Department,
2007), p. DH-49.
166 Martin Salazar, “Tribes Sue Over Restructuring; Federal Officials Want to Revamp Agency That Oversees Indian
Education,” Albuquerque Journal, October 16, 2006, p. 1; and David Melmer, “Schreier: Reorganization Must Stop,”
Indian Country Today, August 2, 2006, p. B1.
167 SeeStatutory Authority for BIE Elementary-Secondary Schools, above.
168 ESEA, §1116(g) (20 U.S.C. 6316(g)). As yet, no AYP waivers have been granted, although BIE reports that one
consortium of schools has applied and at least one other school is interested (telephone conversation, October 4, 2007).
169 NIEA, “Proposed Amendments, op.cit.
170 NIEA, “Proposed Amendments, op.cit.

Indian education issues in public schools include the definition of AYP, consultations with Indian
tribes, the role of Indian cultures and languages, teacher development, and the uses of grants 171
under the Indian Education Act (IEA). Many of the issues raised for schools with Indian
students may overlap with NCLBA issues for all students; see CRS Report RL33749, The No th
Child Left Behind Act: An Overview of Reauthorization Issues for the 110 Congress, for
discussion of these wider issues.
Like many other educators, Indian educators have proposed use of “growth models” to measure 172
achievement of AYP. See CRS Report RL33032, Adequate Yearly Progress (AYP): Growth
Models Under the No Child Left Behind Act, for analysis of the issues raised by growth models.
NIEA proposals would add requirements or commitments that SEAs and LEAs consult with
Indian tribes under numerous provisions in ESEA as amended by NCLBA. SEA consultation with
tribes is proposed during SEA development and implementation of state plans required by ESEA,
on state practitioner committees required to advise the state in its performance of its ESEA duties,
and during the development of activities under state teacher quality enhancement grants. LEA
consultations with tribes are proposed during the development and implementation of the LEA
plans required by ESEA, in the development of school improvement plans, and for the plans,
applications, and activities under LEA teacher quality enhancement grants. NIEA also proposes
that Indian parents receive special attention in each LEA’s required annual evaluations of its 173
parental involvement policy.
Indian educators and parents have for many years argued for greater inclusion of Indian cultures
and Indian languages in both public and BIE schools, as subjects in curricula and (for languages)
as media of instruction. NIEA proposes amending ESEA to incorporate “activities that meet the
unique cultural, language, and educational needs of Indian students” in LEA improvement plans.
It also proposes strengthening the emphasis on Indian cultures and languages in IEA programs 174
(see below).

The Indian Education Act is Title VII, Part A, of ESEA.
172 NIEA, Briefing Papers, “Policy Recommendations on Reauthorization of No Child Left Behind, March 6, 2006,”
available at http://www.niea.org/sa/uploads/policyissues/18.42.NIEABriefingPapers_06.pdf.
173 NIEA, “Proposed Amendments, op.cit.
174 NIEA, “Proposed Amendments, op.cit.

Indian educators argue that there are unmet needs for more Indian teachers, and for improving
non-Indian teachers’ skills in teaching Indian students. NIEA proposes amending ESEA’s LEA
teacher quality enhancement subgrants to add to the grants’ uses the recruitment and preparation
of teachers who are Indian or live in Indian communities or are likely to succeed at teaching
Indian students, and also professional development activities that improve teachers’ ability to 175
meet Indian students’ unique needs.
Indian education proponents have complained that IEA formula grants (see program description
in “ED Indian Programs for Public Schools,” above) were being used by LEAs for general
remedial programs for Indian students and not for Indian language or cultural needs, and that IEA 176
funding was insufficient. The NIEA’s proposals would restrict IEA’s purposes to meeting
Indian students’ unique cultural and language needs and would delete current provisions referring
to state standards and the general education of Indian students. They would authorize Indian
language immersion programs, traditional language teachers, parental involvement, and technical
assistance, and would also make it easier for Indian tribes to apply for formula grants (where an
LEA does not) by lowering the percentage of Indian students the tribe is required to represent.
Finally, the NIEA proposals would increase the amount of appropriations authorized for IEA, by

35% for formula grants (to $130 million) and by 42% for other grants (to $34 million).

Roger Walke
Specialist in American Indian Policy
rwalke@crs.loc.gov, 7-8641

NIEA, “Proposed Amendments, op.cit.
176 National Indian Education Association, Preliminary Report on No Child Left Behind in Indian Country, October 10,
2005, available at http://www.niea.org/sa/uploads/policyissues/29.23.NIEANCLBreport_final2.pdf.