The federal government funds a system of 183 schools for Native American children, supported by the Bureau of Indian Education (BIE). In 2001, more than one-third of these school facilities needed extensive renovation if not full replacement. Many others needed repairs. The Facilities Management Information System (FMIS) did not accurately reflect the needs of all schools, and many tribal and school leaders perceived the formulas used to prioritize funds as opaque, flawed, or biased. The Department of the Interior (DOI) had found past attempts at negotiated rulemaking with tribal partners challenging, due to the sovereign nature of Native American tribes and the large number of parties involved. As a result, DOI asked CBI to conduct a stakeholder assessment to clarify interests and outline potential challenges and opportunities for the rulemaking committee, and if appropriate, convene and facilitate the negotiated rulemaking.
CBI interviewed 198 people representing 99 schools to clarify major challenges and explore the potential for a negotiated process. Based on this, CBI developed a draft work plan and helped facilitate the Negotiated Rulemaking process. The first challenge was designing a committee that both complied with a legal requirement for tribal representation based on proportional number of enrolled students (where Navajo make up 35 percent), while also reflecting the diversity of the 241 other Tribes that operate or send students to BIE-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. To address concerns about the appropriateness and neutrality of CBI’s non-native facilitation team, 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 extensive time researching the complex FMIS database and prioritization formulas. Several subcommittees were created to address major tasks, including:
After seven multi-day meetings and five regional consultations to get feedback from tribal leaders and school officials around the county, the committee completed a consensus final report that included recommendations for improving FMIS and all funding formulas. The report was submitted to both the DOI and Congress for implementation.