Assessment and Negotiated Rulemaking Facilitation: Bureau of Indian Education

CBI conducts a stakeholder assessment and facilitates a negotiated rulemaking process on school maintenance funding for the Bureau of Indian Affairs.

Background and Challenges

The Federal Government funds a system of 183 schools for Native American children, supported by the Bureau of Indian Education (BIE).  In 2001, over one-third of these school facilities were in poor condition and in need of extensive renovation and repair or full replacement, with many others needing major or minor repairs.  The catalog documenting school deficiencies (called FMIS) did not accurately reflect the condition and needs of many schools, and the formulas used to determine priorities for allocating limited construction funds were perceived by many Tribal and school leaders as opaque, flawed, and/or biased.

A provision of the 2001 No Child Left Behind Act (NCLB) called for the Department of the Interior (DOI) to convene a negotiated rulemaking to provide comprehensive information about the schools’ conditions and funding needs, and to identify formulas that would objectively prioritize the allocation of construction funds. DOI had found past negotiated rulemaking efforts with tribal partners challenging, due to the sovereign nature of Native American tribes and the vast number of parties involved. As a result, DOI asked CBI to conduct a stakeholder assessment to clarify interests and outline potential challenges and opportunities that the rulemaking committee might encounter.

THE CBI APPROACH

CBI helps uncover three major challenges contributing to the breakdown of the funding process and addresses sensitive issues around legitimacy, diversity, and trust to ensure an effective collaborative process.


The Stakeholder Assessment Process
: To better understand range of concerns around the FMIS database and funding formulas, CBI undertook an extensive stakeholder assessment, interviewing 198 people from 99 different schools. CBI spoke with staff from the 21 regional Bureau of Indian Education (BIE) offices, tribal officials, as well as the Office of Facilities Management and Construction who oversees the process for allocating funds.

CBI's assessment uncovered three major challenges. First, a long-standing lack of transparency and trust between Tribes and schools and the Federal Agencies led to misunderstandings and suspicion about how school maintenance funding was being prioritized. Second, a range of obstacles and shortcomings in the FMIS program and input process undermined the accuracy of the data on school conditions. Finally, the assessment revealed a lack of sufficient funding to meet the needs of all 183 schools. The assessment also showed both the potential and the desire for a negotiated rulemaking process. CBI developed a draft work plan responsive to the challenges of representation and the substantive concerns identified in the assessment.

The Negotiated Rulemaking Process: After the assessment, the DOI asked CBI to continue managing the process by convening and facilitating the negotiated rulemaking committee.  The first challenge was designing a committee that both complied with the NCLB requirement for tribal representation based on proportional number of enrolled students (where Navajo make up 35%), while also reflecting the diversity of the 241 other Tribes that operate or send students to Bureau-funded schools. To address this problem, CBI created a committee that assigned seats proportionally and then added extra seats for diversity, filled with representatives from as many tribes and geographic locations as possible.

Due to longstanding mistrust between Native Americans and the Federal government, committee members expressed concerns about the appropriateness and neutrality of CBI’s non-native facilitation team. In order to mitigate this concern and increase tribal ownership of the process, the Committee’s tribal representatives selected four co-chairs to work closely with CBI and the Designated Federal Official (DFO) to plan and facilitate each meeting.

The Committee spent a great deal of time educating itself on the extremely complex FMIS database and prioritization formulas. Several subcommittees were created to address the tasks and core issues highlighted by the assessment, including:

  • Drafting regulations regarding heating, cooling, and lighting
  • Understanding and identifying challenges with the FMIS database, and making recommendations to improve the: accuracy of data on school conditions; formulas for funding distribution for repairs, renovation, and new construction; and communication and transparency of implementing formulas
  • Drafting a compelling report introduction that highlights the needs for additional school facility construction funding

Results

The Committee completes a draft report, including recommendations for improving the funding formulas; the report was distributed to affected tribes and schools for comment. The final report is submitted to the Department of the Interior and Congress. 

In the Spring of 2011, the Committee completed a draft report, complete with recommendations for improving FMIS and funding formulas, which was distributed to all affected Tribes and schools. Over the summer, the Committee conducted five regional consultation sessions around the country, which were attended by over 200 participants. Additionally, 16 tribes, schools, or tribal organizations submitted written comments. Based on this input, the Committee came together for a final meeting to make revisions and finalize their report. The Committee also had a briefing with staff from the Senate Committee on Indian Affairs about their recommendations. The final report was submitted to both the Department of the Interior and to Congress, and the Department of Interior Office of Regulatory Affairs and Collaborative Action (RACA) will incorporate the committee’s recommendations into Department policy.