I 

111TH CONGRESS 

1ST SESSION H. R. 727 

To provide for the issuance of bonds to provide funding for the construction 

of schools of the Bureau of Indian Affairs, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 27, 2009 

Mr. POMEROY (for himself and Ms. HERSETH SANDLIN) introduced the following bill; which was referred to the Committee on Ways and Means, 

and in addition to the Committees on Education and Labor and Natural 

Resources, for a period to be subsequently determined by the Speaker, 

in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To provide for the issuance of bonds to provide funding 

for the construction of schools of the Bureau of Indian 

Affairs, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Indian School Con5 struction Act’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act: 


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1 (1) BUREAU.—The term ‘‘Bureau’’ means the 

2 Bureau of Indian Affairs. 

3 (2) INDIAN.—The term ‘‘Indian’’ means any in4 dividual who is a member of an Indian tribe. 

5 (3) INDIAN TRIBE.— 

6 (A) IN GENERAL.—The term ‘‘Indian 

7 tribe’’ has the meaning given the term ‘‘Indian 

8 tribal government’’ in section 7701(a)(40) of 

9 the Internal Revenue Code of 1986 (as modified 

10 by section 7871(d) of that Code). 

11 (B) INCLUSION.—The term ‘‘Indian tribe’’ 

12 includes any consortium of Indian tribes ap13 proved by the Secretary. 

14 (4) SECRETARY.—The term ‘‘Secretary’’ means 

15 the Secretary of the Interior. 

16 (5) TRIBAL SCHOOL.—The term ‘‘tribal school’’ 

17 means an elementary school, secondary school, or 

18 dormitory that— 

19 (A) is operated by a tribal organization or 

20 the Bureau for the education of Indian chil21 dren; and 

22 (B) receives financial assistance for the op23 eration of the school or dormitory under an ap24 propriation for the Bureau under a contract, 


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1 grant, or agreement, or for a Bureau-operated 

2 school, under— 

3 (i) section 102, 103(a), or 208 of the 

4 Indian Self-Determination and Education 

5 Assistance Act (25 U.S.C. 450f, 450h(a), 

6 and 458d); or 

7 (ii) the Tribally Controlled Schools 

8 Act of 1988 (25 U.S.C. 2501 et seq.). 

9 SEC. 3. ISSUANCE OF BONDS. 

10 (a) IN GENERAL.—The Secretary shall establish a 

11 pilot program under which the Secretary shall provide to 

12 eligible Indian tribes the authority to issue qualified tribal 

13 school modernization bonds to provide funds for the con14 struction, rehabilitation, and repair of tribal schools, in15 cluding advance planning and design of tribal schools. 

16 (b) ELIGIBILITY.— 

17 (1) IN GENERAL.—To be eligible to issue a 

18 qualified tribal school modernization bond under the 

19 program under subsection (a), an Indian tribe 

20 shall— 

21 (A) prepare and submit to the Secretary a 

22 plan of construction that meets the require23 ments of paragraph (2); 


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1 (B) provide for quarterly and final inspec2 tion by the Bureau of each project to be funded 

3 by the bond; and 

4 (C) ensure that the facilities to be funded 

5 by the bond will be used primarily for elemen6 tary and secondary educational purposes for the 

7 period during which the bond remains out8 standing. 

9 (2) PLAN OF CONSTRUCTION.—The require10 ments referred to in paragraph (1)(A) are that the 

11 plan shall— 

12 (A) contain a description of the construc13 tion to be carried out using funds provided 

14 under a qualified tribal school modernization 

15 bond; 

16 (B) demonstrate that a comprehensive sur17 vey has been carried out regarding the con18 struction needs of the applicable tribal school; 

19 (C) contain assurances that funding under 

20 the bond will be used only for the activities de21 scribed in the plan; 

22 (D) contain a response to the evaluation 

23 criteria contained in the document entitled ‘‘In24 structions and Application for Replacement 


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1 School Construction, Revision 6’’ and dated 

2 February 6, 1999; and 

3 (E) contain any other reasonable and re4 lated information that the Secretary determines 

5 to be appropriate. 

6 (3) PRIORITY.—In determining whether an In7 dian tribe is eligible to participate in the program 

8 under this section, the Secretary shall give priority 

9 to Indian tribes that, as demonstrated by the plans 

10 of construction of the Indian tribes, will fund 

11 projects— 

12 (A) described in the list of the Bureau en13 titled ‘‘Education Facilities Replacement Con14 struction Priorities List as of FY 2004’’ (69 

15 Fed. Reg. 13870) (or successor regulations); or 

16 (B) that meet the criteria for ranking 

17 schools described in the document entitled ‘‘In18 structions and Application for Replacement 

19 School Construction, Revision 6’’ and dated 

20 February 6, 1999. 

21 (4) ADVANCE PLANNING AND DESIGN FUND22 ING.— 

23 (A) IN GENERAL.—An Indian tribe may 

24 propose in the plan of construction of the In25 dian tribe to receive advance planning and deVerDate Nov 24 2008 07:17 Jan 29, 2009 Jkt 079200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H727.IH H727

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1 sign funding from the tribal school moderniza2 tion escrow account established under sub3 section (f)(2). 

4 (B) CONDITIONS.—As a condition of re5 ceiving advance planning and design funds 

6 under subparagraph (A), an Indian tribe shall 

7 agree— 

8 (i) to issue qualified tribal school 

9 modernization bonds after the receipt of 

10 the funds; and 

11 (ii) to deposit into the escrow account 

12 or a fund managed by a trustee under sub13 section (d)(3) an amount equal to the 

14 amount of funds received from the escrow 

15 account. 

16 (c) PERMISSIBLE ACTIVITIES.—In addition to the 

17 use described in subsection (a), an Indian tribe may use 

18 amounts received through the issuance of a qualified tribal 

19 school modernization bond— 

20 (1) to enter into, and make payments under, 

21 contracts with licensed and bonded architects, engi22 neers, and construction firms— 

23 (A) to determine the needs of a tribal 

24 school; and 


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1 (B) for the design and engineering of a 

2 tribal school; 

3 (2) to enter into, and make payments under, 

4 contracts with financial advisors, underwriters, at5 torneys, trustees, and other professionals to provide 

6 assistance to the Indian tribe in issuing the bonds; 

7 and 

8 (3) to carry out other such activities as the Sec9 retary determines to be appropriate. 

10 (d) BOND TRUSTEE.— 

11 (1) IN GENERAL.—Notwithstanding any other 

12 provision of law, any qualified tribal school mod13 ernization bond issued by an Indian tribe under this 

14 section shall be subject to a trust agreement between 

15 the Indian tribe and a trustee. 

16 (2) TRUSTEE.—Any bank or trust company 

17 that meets the requirements established by the Sec18 retary may serve as a trustee for purposes of para19 graph (1). 

20 (3) CONTENT OF TRUST AGREEMENT.—A trust 

21 agreement entered into by an Indian tribe under this 

22 subsection shall specify that the trustee, with respect 

23 to any bond issued under this section, shall— 

24 (A) act as a repository for the proceeds of 

25 the bond; 


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1 (B) make payments to bondholders; 

2 (C) receive, as a condition to the issuance 

3 of the bond, a transfer of funds from the tribal 

4 school modernization escrow account under sub5 section (f)(2), or from other funds furnished by 

6 or on behalf of the Indian tribe, in an amount 

7 that, together with interest earnings from the 

8 investment of the funds in obligations of or 

9 fully guaranteed by the United States, or from 

10 other investments under subsection (j), will be 

11 sufficient to pay timely and in full the entire 

12 principal amount of the bond on the stated ma13 turity date of the bond; 

14 (D) invest the funds received in accordance 

15 with subparagraph (C); and 

16 (E) hold and invest the funds in a seg17 regated fund or account under the agreement, 

18 to be used solely to pay the costs of activities 

19 described in subsection (c). 

20 (4) REQUIREMENTS FOR MAKING DIRECT PAY21 MENTS.— 

22 (A) IN GENERAL.—Notwithstanding any 

23 other provision of law, the trustee shall make 

24 each payment described in paragraph (3)(E) in 

25 accordance with such requirements as the InVerDate Nov 24 2008 07:17 Jan 29, 2009 Jkt 079200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H727.IH H727

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1 dian tribe may prescribe in the trust agreement 

2 under paragraph (3). 

3 (B) PAYMENTS TO CONTRACTORS.—As a 

4 condition of making a payment to a contractor 

5 under paragraph (3)(E), the trustee shall re6 quire an inspection of the project of the con7 tractor, to ensure the completion of the project, 

8 by— 

9 (i) a local financial institution; or 

10 (ii) an independent inspecting archi11 tect or engineer. 

12 (C) CONTRACTS.—Each contract under 

13 paragraphs (1) and (2) of subsection (c) shall 

14 require, or be renegotiated to require, that each 

15 payment under the contract shall be made in 

16 accordance with this subsection. 

17 (e) PAYMENTS OF PRINCIPAL AND INTEREST.— 

18 (1) PRINCIPAL.— 

19 (A) IN GENERAL.—No principal payment 

20 on any qualified tribal school modernization 

21 bond shall be required until the final, stated 

22 maturity of the bond. 

23 (B) MATURITY.— 

24 (i) IN GENERAL.—The final, stated 

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1 ernization bond shall be not later than the 

2 date that is 15 years after the date of 

3 issuance of the bond. 

4 (ii) EXPIRATION.—On expiration of a 

5 qualified tribal school modernization bond 

6 under clause (i), the entire outstanding 

7 principal under the bond shall become due 

8 and payable. 

9 (2) INTEREST.—In lieu of interest on a quali10 fied tribal school modernization bond, there shall be 

11 provided a tax credit under section 1400U of the In12 ternal Revenue Code of 1986. 

13 (f) BOND GUARANTEES.— 

14 (1) IN GENERAL.—Payment of the principal 

15 portion of a qualified tribal school modernization 

16 bond issued under this section shall be guaranteed 

17 solely by amounts deposited with each respective 

18 bond trustee as described in subsection (d)(3)(C). 

19 (2) ESCROW ACCOUNT.— 

20 (A) IN GENERAL.—The Secretary may de21 posit not more than $50,000,000 into a tribal 

22 school modernization escrow account. 

23 (B) ADDITIONAL AMOUNTS.— 

24 (i) IN GENERAL.—The Secretary may 

25 accept for transfer into the tribal school 


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1 modernization escrow account amounts 

2 from, as the Secretary determines to be 

3 appropriate— 

4 (I) other Federal departments 

5 and agencies (such as amounts made 

6 available for facility improvement and 

7 repairs); 

8 (II) non-Federal public or private 

9 sources. 

10 (ii) TREATMENT.—Amounts trans11 ferred into the escrow account pursuant to 

12 clause (i) shall not reduce the amount eli13 gible to be deposited into the account 

14 under subparagraph (A). 

15 (C) INVESTMENT OF CERTAIN FUNDS.— 

16 Amounts made available to carry out any 

17 project included on the list of the Bureau enti18 tled ‘‘Education Facilities Replacement Con19 struction Priorities List as of FY 2004’’ (or 

20 successor regulations) (69 Fed. Reg. 13870) 

21 shall— 

22 (i) be invested in accordance with sub23 section (j); and 

24 (ii) at the discretion of the Sec25 retary— 


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1 (I) be used to pay any increase in 

2 project costs or other facility costs of 

3 the project for which the amounts are 

4 made available; or 

5 (II) be deposited into the tribal 

6 school modernization escrow account. 

7 (g) LIMITATIONS.— 

8 (1) OBLIGATION TO REPAY.— 

9 (A) IN GENERAL.—Notwithstanding any 

10 other provision of law, the principal amount of 

11 any qualified tribal school modernization bond 

12 issued under this section shall be repaid only to 

13 the extent of any escrowed funds provided 

14 under subsection (d)(3)(C). 

15 (B) TREATMENT.—No qualified tribal 

16 school modernization bond issued by an Indian 

17 tribe shall be an obligation of, and no payment 

18 of the principal of such a bond shall be guaran19 teed by, the United States, an Indian tribe, or 

20 a tribal school. 

21 (2) LAND AND FACILITIES.—No land or facility 

22 purchased or improved using amounts provided 

23 under a qualified tribal school modernization bond 

24 issued under this section shall be mortgaged or used 

25 as collateral for the bond. 


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1 (h) SALE OF BONDS.—A qualified tribal school mod2 ernization bond may be sold at a purchase price equal to, 

3 in excess of, or at a discount from the par amount of the 

4 bond. 

5 (i) TREATMENT OF TRUST AGREEMENT EARN6 INGS.—Amounts earned through the investment of funds 

7 under the control of a trustee under a trust agreement 

8 described in subsection (d) shall not be subject to Federal 

9 income tax. 

10 (j) INVESTMENT OF SINKING FUNDS.—Any sinking 

11 fund established for the purpose of the payment of prin12 cipal on a qualified tribal school modernization bond shall 

13 be invested in— 

14 (1) obligations issued or guaranteed by the 

15 United States; or 

16 (2) such other assets as the Secretary of the 

17 Treasury may allow, by regulation. 

18 SEC. 4. EXPANSION OF INCENTIVES FOR TRIBAL SCHOOLS. 

19 Chapter 1 of the Internal Revenue Code of 1986 is 

20 amended by adding at the end the following new sub21 chapter: 

22 ‘‘Subchapter Z—Tribal School Modernization 

23 Provisions 

‘‘Sec. 1400U. Credit to holders of qualified tribal school modernization bonds. 


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1 ‘‘SEC. 1400U. CREDIT TO HOLDERS OF QUALIFIED TRIBAL 

2 SCHOOL MODERNIZATION BONDS. 

3 ‘‘(a) ALLOWANCE OF CREDIT.—In the case of a tax4 payer who holds a qualified tribal school modernization 

5 bond on a credit allowance date of such bond which occurs 

6 during the taxable year, there shall be allowed as a credit 

7 against the tax imposed by this chapter for such taxable 

8 year an amount equal to the sum of the credits determined 

9 under subsection (b) with respect to credit allowance dates 

10 during such year on which the taxpayer holds such bond. 

11 ‘‘(b) AMOUNT OF CREDIT.— 

12 ‘‘(1) IN GENERAL.—The amount of the credit 

13 determined under this subsection with respect to any 

14 credit allowance date for a qualified tribal school 

15 modernization bond is 25 percent of the annual 

16 credit determined with respect to such bond. 

17 ‘‘(2) ANNUAL CREDIT.—The annual credit de18 termined with respect to any qualified tribal school 

19 modernization bond is the product of— 

20 ‘‘(A) the applicable credit rate, multiplied 

21 by 

22 ‘‘(B) the outstanding face amount of the 

23 bond. 

24 ‘‘(3) APPLICABLE CREDIT RATE.—For purposes 

25 of paragraph (1), the applicable credit rate with re26 spect to an issue is the rate equal to an average 


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1 market yield (as of the date of sale of the issue) on 

2 outstanding long-term corporate obligations of simi3 lar ratings (as determined by the Secretary). 

4 ‘‘(4) SPECIAL RULE FOR ISSUANCE AND RE5 DEMPTION.—In the case of a bond which is issued 

6 during the 3-month period ending on a credit allow7 ance date, the amount of the credit determined 

8 under this subsection with respect to such credit al9 lowance date shall be a ratable portion of the credit 

10 otherwise determined based on the portion of the 3- 

11 month period during which the bond is outstanding. 

12 A similar rule shall apply when the bond is re13 deemed. 

14 ‘‘(c) LIMITATION BASED ON AMOUNT OF TAX.— 

15 ‘‘(1) IN GENERAL.—The credit allowed under 

16 subsection (a) for any taxable year shall not exceed 

17 the excess of— 

18 ‘‘(A) the sum of the regular tax liability 

19 (as defined in section 26(b)) plus the tax im20 posed by section 55, over 

21 ‘‘(B) the sum of the credits allowable 

22 under part IV of subchapter A (other than sub23 part C thereof, relating to refundable credits). 

24 ‘‘(2) CARRYOVER OF UNUSED CREDIT.—If the 

25 credit allowable under subsection (a) exceeds the 


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1 limitation imposed by paragraph (1) for such taxable 

2 year, such excess shall be carried to the succeeding 

3 taxable year and added to the credit allowable under 

4 subsection (a) for such taxable year. 

5 ‘‘(d) QUALIFIED TRIBAL SCHOOL MODERNIZATION

6 BOND; OTHER DEFINITIONS.—For purposes of this sec7 tion— 

8 ‘‘(1) QUALIFIED TRIBAL SCHOOL MODERNIZA9 TION BOND.— 

10 ‘‘(A) IN GENERAL.—The term ‘qualified 

11 tribal school modernization bond’ means, sub12 ject to subparagraph (B), any bond issued as 

13 part of an issue under section 2(c) of the In14 dian School Construction Act, as in effect on 

15 the date of enactment of this section, if— 

16 ‘‘(i) 95 percent or more of the pro17 ceeds of such issue are to be used for the 

18 construction, rehabilitation, or repair of a 

19 school facility funded by the Bureau of In20 dian Affairs of the Department of the Inte21 rior or for the acquisition of land on which 

22 such a facility is to be constructed with 

23 part of the proceeds of such issue, 

24 ‘‘(ii) the bond is issued by an Indian 

25 tribe, 


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1 ‘‘(iii) the issuer designates such bond 

2 for purposes of this section, and 

3 ‘‘(iv) the term of each bond which is 

4 part of such issue does not exceed 15 

5 years. 

6 ‘‘(B) NATIONAL LIMITATION ON AMOUNT

7 OF BONDS DESIGNATED.— 

8 ‘‘(i) NATIONAL LIMITATION.—There is 

9 a national qualified tribal school mod10 ernization bond limitation for each cal11 endar year. Such limitation is— 

12 ‘‘(I) $200,000,000 for 2009, 

13 ‘‘(II) $200,000,000 for 2010, 

14 and 

15 ‘‘(III) $200,000,000 for 2011. 

16 ‘‘(ii) ALLOCATION OF LIMITATION.— 

17 The national qualified tribal school mod18 ernization bond limitation shall be allo19 cated to Indian tribes by the Secretary of 

20 the Interior subject to the provisions of 

21 section 2 of the Indian School Construc22 tion Act, as in effect on the date of enact23 ment of this section. 

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1 gate face amount of bonds issued during 

2 any calendar year which may be designated 

3 under subsection (d)(1) with respect to any 

4 Indian tribe shall not exceed the limitation 

5 amount allocated to such government 

6 under clause (ii) for such calendar year. 

7 ‘‘(iv) CARRYOVER OF UNUSED LIMITA8 TION.—If for any calendar year— 

9 ‘‘(I) the limitation amount under 

10 this subparagraph, exceeds 

11 ‘‘(II) the amount of qualified 

12 tribal school modernization bonds 

13 issued during such year, the limitation 

14 amount under this subparagraph for 

15 the following calendar year shall be 

16 increased by the amount of such ex17 cess. The preceding sentence shall not 

18 apply if such following calendar year 

19 is after 2012. 

20 ‘‘(2) CREDIT ALLOWANCE DATE.—The term 

21 ‘credit allowance date’ means— 

22 ‘‘(A) March 15, 

23 ‘‘(B) June 15, 

24 ‘‘(C) September 15, and 

25 ‘‘(D) December 15. 


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1 Such term includes the last day on which the bond 

2 is outstanding. 

3 ‘‘(3) BOND.—The term ‘bond’ includes any ob4 ligation. 

5 ‘‘(4) INDIAN TRIBE.—The term ‘Indian tribe’ 

6 has the meaning given the term ‘Indian tribal gov7 ernment’ by section 7701(a)(40), including the ap8 plication of section 7871(d). Such term includes any 

9 consortium of Indian tribes approved by the Sec10 retary of the Interior. 

11 ‘‘(e) CREDIT INCLUDED IN GROSS INCOME.—Gross 

12 income includes the amount of the credit allowed to the 

13 taxpayer under this section (determined without regard to 

14 subsection (c)) and the amount so included shall be treat15 ed as interest income. 

16 ‘‘(f) BONDS HELD BY REGULATED INVESTMENT

17 COMPANIES.—If any qualified tribal school modernization 

18 bond is held by a regulated investment company, the credit 

19 determined under subsection (a) shall be allowed to share20 holders of such company under procedures prescribed by 

21 the Secretary. 

22 ‘‘(g) CREDITS MAY BE STRIPPED.—Under regula23 tions prescribed by the Secretary— 

24 ‘‘(1) IN GENERAL.—There may be a separation 

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1 fied tribal school modernization bond and the entitle2 ment to the credit under this section with respect to 

3 such bond. In case of any such separation, the credit 

4 under this section shall be allowed to the person who 

5 on the credit allowance date holds the instrument ev6 idencing the entitlement to the credit and not to the 

7 holder of the bond. 

8 ‘‘(2) CERTAIN RULES TO APPLY.—In the case 

9 of a separation described in paragraph (1), the rules 

10 of section 1286 shall apply to the qualified tribal 

11 school modernization bond as if it were a stripped 

12 bond and to the credit under this section as if it 

13 were a stripped coupon. 

14 ‘‘(h) TREATMENT FOR ESTIMATED TAX PUR15 POSES.—Solely for purposes of sections 6654 and 6655, 

16 the credit allowed by this section to a taxpayer by reason 

17 of holding a qualified tribal school modernization bonds 

18 on a credit allowance date shall be treated as if it were 

19 a payment of estimated tax made by the taxpayer on such 

20 date. 

21 ‘‘(i) CREDIT MAY BE TRANSFERRED.—Nothing in 

22 any law or rule of law shall be construed to limit the trans23 ferability of the credit allowed by this section through sale 

24 and repurchase agreements. 


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1 ‘‘(j) CREDIT TREATED AS ALLOWED UNDER PART

2 IV OF SUBCHAPTER A.—For purposes of subtitle F, the 

3 credit allowed by this section shall be treated as a credit 

4 allowable under part IV of subchapter A of this chapter. 

5 ‘‘(k) REPORTING.—Issuers of qualified tribal school 

6 modernization bonds shall submit reports similar to the 

7 reports required under section 149(e).’’. 

8 SEC. 5. ADDITIONAL PROVISIONS. 

9 (a) SOVEREIGN IMMUNITY.—Nothing in this Act or 

10 an amendment made by this Act impacts, limits, or other11 wise affects the sovereign immunity of the United States 

12 or any State or Indian tribal government. 

13 (b) APPLICATION.—This Act and the amendments 

14 made by this Act shall take effect on the date of enactment 

15 of this Act with respect to bonds issued after December 

16 31, 2006, regardless of the status of regulations promul17 gated pursuant to this Act or an amendment made by this 

18 Act. 

Æ 


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