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Senators Demand Fixes on Failing BIA, BIE, IHS

SCIA Chairman John Hoeven was not happy with the GAO’s progress of BIA, BIE and IHS management issues, as well as energy development in Indian country.
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If you've been on Capitol Hill long enough, you knew a public bloodletting was coming when the Government Accountability Office (GAO) showed up at the Senate Committee on Indian Affairs (SCIA) to detail the progress—or lack thereof—of the Bureau of Indian Affairs’ (BIA) management of the Bureau of Indian Education (BIE) and Indian energy development, and the Department of Health and Human Services' (HHS) management of the Indian Health Service (IHS).

Figurative blood was everywhere at a hearing on these topics on May 17, and SCIA Chairman John Hoeven (R-ND) was not happy about it, saying in his terse opening remarks that this February was the first time the GAO had identified these three Indian programs as being "at risk" in its annual High-Risk Report.

Melissa Emrey-Arras, director of Education, Workforce, and Income Security for the GAO, explained during the hearing that once a program is placed on the High-Risk list, the agency must demonstrate significant improvement in five areas to be removed from it: leadership commitment, agency capacity, a corrective action plan, a program for independently validating the effectiveness and sustainability of corrective measures, and demonstrated progress in correcting issues putting the program at high-risk.


What is unusual—and worrisome—here is that Indian Affairs has three critical programs on the high-risk list. Two major drivers underwriting much of the administrative failure in these programs are the amount of and complexity of the bureaucracy involved in funding procurement and program management, and the fact that they all have acting directors.

Emrey-Arras said that the deficiencies “put the health and safety of American Indians served by these programs at risk." She further noted how BIA "[mismanagement] of Indian energy resources held in opportunities for use those resources to create economic benefits and improve the well-being of their communities."

BIE schools remain at particularly high risk, Arras reported to the committee. Persistent issues continue to be underfunding, misused funds, perpetually deteriorating facilities, and security issues. Lax inspection and reporting, a lack of financial expertise to oversee programs, substandard maintenance, and the second highest rate of teacher turnover in the nation are additional problems.

Combined with a decline in attracting and retaining qualified instructors to remote areas with subpar housing, the prospect for turning out competitive students at BIE schools has dimmed. The achievement gap in Native youth starts in early years, and access to quality early childhood development programs inconsistent, with many kids missing out on key educational opportunities.

S.458, also known as the NEST Act, reintroduced by Sen. Jon Tester (D-MT), is meant to be a partial remedy. He said the bill is structured to encourage more teachers to go to work in Indian country by helping pay for their bachelors' degrees through loan forgiveness. It also encourages BIE school teachers to seek national teacher certification.

The hope, Tester said, is that this will go a long way toward covering the BIE teacher shortage, which has doubled in the past 10 years. An amendment expanded it to include BIE preschool educators before it was passed in session.

Tony Dearman, Director of the Bureau of Indian Education, struck both an apologetic and somewhat defensive tone. He acknowledged that in 2013 the GAO made 13 recommendations for improvement, only three of which have been implemented to date. He took responsibility for the 10 that have not been addressed and said they would be implemented by the end of the 2018 calendar year.

When pressed by Sens. Catherine Cortez Masto (D-NV) and Heidi Heitkamp (D-ND) on why this was taking so long, Dearman had little to say.

Cortez Masto reminded Dearman that the requirement was that the deficits be addressed in a timely manner, and states, "This is too slow!"

Heitkamp added, "We are struggling every day in Indian country. We can't afford not to be absolutely the best at everything we do! This is a matter, in some cases, of life and death, and needs to be taken seriously. We need to see better results. The SCIA needs to be accountable. This needs to be better!"

The tension in the room was palpable as Arras moved on to the IHS, which has also had systemic failures. The agency is responsible for the healthcare for some 2.2 million Indians in a highly decentralized system. Its primary task is to allocate the $1.9 billion budgeted for federal and tribal health centers, hospitals and facilities, as well as for establishing policy and ensuring the delivery and quality of care to its 114 units. The Affordable Care Act and Medicaid expansion have allowed tribes to become the payor of last resort, freeing up considerable funds for healthcare needs for tribal members.

Among other concerns, GAO found that "HHS [has] ineffectively administered and implemented Indian education and health care programs and mismanaged Indian energy resources in five areas: oversight of federal activities; collaboration and communication; federal workforce planning; equipment, technology, and infrastructures, and federal agencies' data."

Although Chris Buchanan, acting IHS director, stated that IHS "shares the urgency of overcoming ...system challenges," and mounted a defense by noting a litany of improvements that had been implemented, the fuse had already been lit.

“This is taking too long!” exclaimed Hoeven. “We need to be setting some timelines for getting things done!"

"How soon can you get back to the SCIA?" she asked. When Buchanan said by the end of fiscal year 2017, Hoeven responded, "Too long!" to which Buchanan replied, "If I can get it done sooner, I'll get back to you."

By the time the SCIA got to energy issues, Michael Black, acting assistant secretary for Indian Affairs, had little to add except that President Donald Trump and Secretary Ryan Zinke had made a clear commitment to energy development including clean coal, wind, etc. before he got lost in the bureaucratic weeds of TAMS, GIS mapping, TARA regulations, and the HEARTH Act. Falling back on the now somewhat shopworn, "Strong tribal economies strengthen tribal sovereignty," Black committed to reducing bureaucracy for tribes interested in energy development and by changing policy so that tribes could implement their own leasing agreements for energy resources.


The way BIA manages energy resources for tribes is a tangled mess. Fourteen agencies must interact to identify resource potential, provide technical assistance, regulate various aspects of the program and applicable law, provide financial assistance, provide transmission access assistance, and purchase power.

The GAO report pointed out that the Indian Energy Service Center—with BIA as the lead agency—was established in 2014 to "help expedite the leasing and permitting processes associated with Indian energy development." Tribes that are seeking to develop their resources have testified in the past that it has taken up to eight years to get permitting completed to just get to the build portion of their energy programs. In the private sector, this takes mere months.

Hoeven is seeking reform in the discovery to production process, requesting a bill that directs Interior to assist tribes with the development of their resources and streamlines the process to make it more predictable.

In Hoeven’s opinion, tribes should not suffer from opportunity loss, nor from partisan politics. He recognized, though, that many positions still vacant at key federal departments had to be filled. He did not, however, suggest how to resolve that in a government that has been slowest to fill those vacancies in anyone's memory.

The session ended with Hoeven directing all witnesses to report back no later than the end of July with implementation plans and timelines in hand to close the open GAO recommendations from the 2017 High-Risk Report.