Assessing School Reconstruction with the Bureau of Indian Education

In 2001, over one-third of the 184 school facilities funded by the Bureau of Indian Affairs (BIA) were found to be in poor condition and in need of wholesale replacement. Many others were in need of extensive renovation and repair. The existing system for determining the priority and budget for school construction and reconstruction was fraught with conflict. Based on this, Congress included a provision in the 2001 No Child Left Behind Act (NCLB) calling a Negotiated Rulemaking Committee to develop new rules on formulas for priority and funding for school replacement, new construction, school renovation, and repair.

The Department of Interior had found previous Negotiated Rulemaking efforts with tribal partners challenging, due to the sovereign nature of Indian tribes and the vast number of interested parties. Prior to convening a new Rulemaking Committee, the Department sought input on the feasibility and desirability of using this approach. Therefore, in 2006, CBI was hired by the Department to explore the opportunities of and barriers to convening the Negotiated Rulemaking Committee called for under NCLB. To do so, CBI undertook an extensive assessment to understand the range of perspectives on these topics, by conducting confidential interviews with tribal officials and their designees, representatives of BIA-funded or tribally-controlled grant schools, BIA, Bureau of Indian Education (BIE) and Office of Facilities Management and Construction (OFMC) staff, and others with an interest in Bureau-funded school facilities construction (e.g. school boards, Diné Department of Education).

Working through the Bureau of Indian Education, CBI’s team spoke in person or by telephone with tribal and school representatives in each of the 21 BIE Line Offices located around the country. Staff from the Diné Department of Education were also interviewed. The team also spoke with representatives from the BIE, OFMC, and the DOI. The team also conducted two focus group sessions at the July 2007 Bureau of Indian Education’s first National Partnership Conference, organized by the National Indian School Board Association. Altogether, the team spoke with 198 individuals, representing some 99 different schools.

Based on these interviews, CBI released a draft convening report in October 2007, which highlighted findings and recommendations for proceeding with the Negotiated Rulemaking. CBI’s report, which was revised based on stakeholder comments in March 2008, recommended that the Department move forward in convening a Negotiated Rulemaking Committee, and that they allocate seats on the committee according to a formula that took into account both the proportionate share of students being served and also to incorporate diverse tribal interests. The report also recommended integrating the typical negotiated rulemaking with a robust and inclusive process of tribal, school, and other stakeholder engagement, including the convening of a national workshop on the repair, renovation, and replacement of school facilities to allow participation by every school in the system and allow them to provide input on the issues at hand early in the process.

Based on this assessment, the Department of Interior has agreed to move forward with a Negotiated Rulemaking and supplementary stakeholder engagement process, which is expected to begin with Committee member nominations through a Notice of Intent to initiate negotiated rulemaking sometime in late summer or early fall 2008.

To see the Final Convening Report, click here

For more information on this case, please contact CBI.

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