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89 FR 100245, Dec. 11, 2024, unless otherwise noted.
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Subscribe to: 25 CFR Part 1000 Subpart F - Determining Funding Agreement Amounts
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(a) Subject to the terms of a funding agreement, the Secretary must transfer to a Tribe/Consortium all funds provided for in the funding agreement, pursuant to 25 U.S.C. 5368. The Secretary shall provide funding for periods covered by joint resolution adopted by Congress making continuing appropriations, to the extent permitted by such resolution.
(b) At the option of the Tribe/Consortium, the Secretary must provide the following program funds to the Tribe/Consortium through a funding agreement:
(1) An amount equal to the amount that the Tribe/Consortium would have been eligible to receive under contracts and grants for direct programs and contract support under title I of Public Law 93-638, as amended;
(2) Any funds that are specifically or functionally related to providing services and benefits to the Tribe/Consortium or its members by the Secretary without regard to the organizational level within BIA where such functions are carried out; and
(3) Any funds otherwise available to Indian Tribes or Indians for which appropriations are made to other Federal agencies and transferred to the Department as directed by law, an Interagency Agreement, or other means.
(c) Examples of the funds referred to in paragraphs (b)(1) and (2) of this section are:
(1) A Tribe's/Consortium's Public Law 93-638 contract amounts;
(2) Negotiated amounts of agency, regional and central office funds, including previously undistributed funds or new programs on the same basis as they are made available to other Tribes;
(3) Other recurring funding;
(4) Non-recurring funding;
(5) Special projects, if applicable;
(6) Construction;
(7) Wildland firefighting accounts;
(8) Competitive grants; and
(9) Congressional earmarked funding.
(d) Examples of the funds referred to in paragraph (b)(3) of this section are:
(1) Federal Highway Administration funds;
(2) Federal Transit Administration funds; and
(3) Funding pursuant to an approved plan under Public Law 102-477, as amended.
Funds associated with programs prohibited from inclusion under 25 U.S.C. 5363(m)(1) may not be included in a funding agreement.
No, unless the Secretary is required to develop terms and conditions that are required by law or that are required by the agency to which the appropriation is made.
The funds for BIA to carry out inherent Federal functions are the funds to support functions that may not legally be delegated to an Indian Tribe if all Tribes were to assume responsibilities for all BIA programs that the Act permits.
(a) Between October 1st and December 31st of each fiscal year, each regional and central office shall develop a document that contains its inherent Federal function information and cost calculation for that office based either on an enacted budget or Continuing Resolution budgetary guidance, and promptly distribute that document to each Tribe/Consortium served by that office.
(b) The Secretary shall amend the document throughout the year if programs are added or changed in ways that affect the inherent Federal functions directly associated with a PSFA transferred, or proposed to be transferred, into the funding agreement of the Tribe/Consortium, and distribute that revised document to any Tribe/Consortium served by that office and seeking to transfer a PSFA into a funding agreement under the Act.
(c) Once final budget amounts are known and suballocated, the Secretary will provide an updated document within 90 days to each Tribe/Consortium.
(d) Inherent Federal function information must clearly identify the legal authority that specifically precludes delegation to a Tribe/Consortium.
(e) Cost calculations must be limited to the minimum amount of funds necessary to carry out specific inherent Federal functions necessary for that office to administer PSFAs transferred to the funding agreement.
(f) The development of the document in paragraph (a) of this section must be based on the following principles:
(1) Uniformity and consistency in the identification of inherent Federal functions and in the calculation of their associated costs;
(2) The determination of inherent Federal functions in each office is based only on those inherent Federal functions actually being performed at that office; and
(3) The Secretary shall consult with Tribes/Consortium on inherent Federal function determinations and associated cost calculations at various forums, including the Tribal Interior Budget Council (TIBC).
(g) In negotiating the amount of funds due a Tribe/Consortium in a funding agreement, the Secretary may withhold from transfer to the funding agreement only those funds to carry out inherent Federal functions associated with the PSFAs assumed in the funding agreement, unless otherwise expressly agreed to by the Tribe/Consortium in the funding agreement.
(h) Upon the request of a Tribe/Consortium, the Secretary must promptly provide a specific description of each inherent Federal function directly associated with a PSFA transferred, or proposed to be transferred, into the funding agreement of the Tribe/Consortium, along with the detailed basis for the Secretary's associated cost calculation.
Yes, the Secretary's calculation of such costs is an appropriate subject during the negotiation of a funding agreement because it affects the amount of funds available for transfer to the funding agreement. If the Tribe/Consortium and the Secretary are unable to agree on the amount of funds to be withheld by the Secretary to cover the Secretary's expense of carrying out inherent Federal functions directly associated with the PSFAs assumed in the funding agreement, the Tribe/Consortium may exercise any of its options under 25 U.S.C. 5366(c), including the final offer process in subpart I of this part.
Yes, pending appeal of funding amounts associated with inherent Federal functions, any Tribe/Consortium may continue to negotiate a funding agreement using the information under § 1000.690 that is being appealed. This information will be subject to later adjustment based on the final determination of a Tribe's/Consortium's appeal.
A Tribal share is the portion of all funds and resources determined for a particular Tribe (or Tribes within a Consortium) that support any program within BIA, BIE, BTFA, or the Office of the Assistant Secretary for Indian Affairs and are not required by the Secretary for the performance of an inherent Federal function as described in §§ 1000.685 through 1000.695.
There are typically two methods for determining the amount of funds to be included in the funding agreement:
(a) Formula-driven. For formula-driven programs, a Tribe's/Consortium's amount is determined by first identifying the funds for BIA to carry out inherent Federal functions and second, by applying the distribution formula to the remaining eligible funding for each program involved.
(1) Distribution formulas must be reasonably related to the function or service performed by an office, and must be consistently applied to all Tribes within each regional and agency office.
(2) The process in paragraph (a) of this section for calculating a Tribe's funding under self-governance must be consistent with the process used for calculating funds available to non-self-governance Tribes.
(b) Tribal-specific. For programs whose funds are not distributed on a formula basis as described in paragraph (a) of this section, a Tribe's funding amount will be determined on a Tribe-by-Tribe basis and may differ between Tribes. Examples of these funds may include special project funding, awarded competitive grants, earmarked funding, and construction or other one-time or non-recurring funding for which a Tribe is eligible.
Yes, where BIA services for a particular Tribe/Consortium are provided from a location outside its immediate agency or region, the Tribe may negotiate its share from the BIA location where the service is actually provided.
Funds provided for Indian services/programs that have not been mandated by Congress to be distributed on a competitive/discretionary basis may be distributed to a Tribe/Consortium under a formula-driven method. In order to receive such funds, a Tribe/Consortium must be eligible and qualified to receive such funds. A Tribe/Consortium that receives such funds under a formula-driven methodology would no longer be eligible to compete for these funds.
No, at the discretion of the Tribe/Consortium, Tribal shares may be left, in whole or in part, with BIA for certain programs. This is referred to as a “retained Tribal share.”
Funds that are saved as a result of downsizing in BIA are allocated to Tribes/Consortium in the same manner as Tribal shares as provided for in § 1000.710.
No, except with respect to programs described in 25 U.S.C. 5363(b)(2) or (c) or as otherwise required by law, the Secretary does not have to approve the reallocation of funds between programs that a Tribe/Consortium administers under a funding agreement. However, reallocation of funds for construction project(s) included in a funding agreement must be done in accordance with subpart K of this part.
Yes, funding amounts negotiated in a funding agreement may be adjusted under the following circumstances:
(a) Congressional action.
(1) Increases/decreases as a result of Congressional appropriations and/or a directive in the statement of managers accompanying a conference report on an appropriations bill or continuing resolution.
(2) General decreases due to Congressional action must be applied consistently to BIA, self-governance Tribes/Consortium, and Tribes/Consortium not participating in self-governance.
(3) General increases due to Congressional appropriations must be applied consistently, except where used to achieve equitable distribution among regions and Tribes.
(4) A Tribe/Consortium will be notified of any decrease and be provided an opportunity to reconcile.
(b) Mistakes. If the Tribe/Consortium or the Secretary can identify and document substantive errors in calculations, the parties will renegotiate the amounts and make every effort to correct such errors.
(c) Mutual Agreement. Both the Tribe/Consortium and the Secretary may agree to renegotiate amounts at any time.