B-114868 April 11, 1975

B-114868 April 11, 1975

(No Digest)

The Honorable James B. Pearson United States Senate

Dear Senator Pearson:

This is in reference to your letter dated January 20, 1975, concerning the Haskell Indian Junior College of Lawrence, Kansas. You advise that this school is fully funded by the Bureau of Indian Affairs, and has been informed that as a Federal institution it is not eligible for assistance from Federal agencies other than from the Bureau of Indian Affairs. To assist Haskell Indian Junior College in receiving additional Federal monies, you posed three questions to this Office as follows:

1. Does Federal law prohibit Haskell Indian Junior College from receiving assistance under any of the Federal education programs for which it would be eligible if it were not a Federal institution? In conjunction with the question was attached a list of educational programs under the Higher Education Act of 1965, as amended, and the Vocational Education Act of 1963, as amended.

2. Does Section 225(a), Title 42 U.S. Code, or any other provision of Federal law prohibit Haskell from receiving Public Health Service Research grants?

3. Assuming Haskell is ineligible for participation in the above mentioned programs, could the situation be remedied by legislation specifically identifying Haskell as an eligible institution, or would it be necessary to amend the provisions of the Anti- Deficiency Act (31 U.S.C. 665)?

It is our understanding that Haskell Indian Junior College (Haskell) located at Lawrence, Kansas, is a school operated by the Bureau of Indian Affairs under the authority of the Snyder Act, approved November 2, 1921, ch. 115, 42 Stat. 208, 25 U.S.C. Sec. 13(1970). Funds appropriated under this Act go for such expenses as salaries, contract services, and the general maintenance of this as well as other Indian schools. Qualified Indians are eligible to attend free of cost.

We are informally advised by officials of the Office of Indian Education, Department of Health, Education, and Welfare (HEW) that although Haskell has been certified as eligible to receive funds under the Indian Education Act, approved June 23, 1972, Pub. L. No. 92-318, 86 Stat. 339, 20 U.S.C. Sec. 887(c) (Supp. III, 1073): the Education Professions Development Act, as amended, approved June 29, 1067, Pub. L. No. 90-35, 81 Stat. 82, 20 U.S.C. Sec. 1091 et. seq. (1970); and the Developing Institutions Program, title III of the Higher Education Act of 1965, Pub. L. No. 89-329, 79 Stat. 1229, as amended, 20 U.S.C. Sec. 1051-1056 (Supp. III, 1973), it is not receiving funds under these programs. The officials indicate that it is possible that the school is receiving funds from the State educational office which assists in the administration of some of the programs, but this cannot be determined from readily available records at HEW.

The question concerning a prohibition of Haskell receiving additional assistance under such Federal education statutes as the Higher Education Act of 1965 and the Vocational Education Act of 1963, as suggested in your letter, raises the problem of augmentation of appropriations. Under 31 U.S.C. Sec. 628(1970), the use of appropriated funds is limited to the purposes for which they are appropriate. We have held in prior decisions that appropriations may not be augmented with funds of another appropriation or from other sources unless authorized by law.

In a somewhat similar situation, this Office ruled that absent specific authority Federal grant funds for institutions participating in a nurse training program could not be allotted to St. Elizabeths Hospital or other Federal institutions operated with appropriated monies. In that case, even though the law providing the grant assistance did not specifically exclude Federal institutions from the program, we found that provisions of the statute and its manner of operation were inconsistent with the idea of participation by Federal institutions which maintain nursing schools. In view of the fact that St. Elizabeths Hospital operated a school of nursing through use of appropriated funds, we concluded that--

"Obviously, there would be no reason, need or sound basis for paying a Federal hospital, operated with appropriated moneys, 'tuition and fees' for training student nurses. In practical effect, an allotment of funds under the act here involved to St. Elizabeths Hospital would simply amount to an augmentation of the appropriation made for maintaining and operating the nursing school therein." 23 Comp. Gen. 694 (1944). See also 36 Comp. Gen. 155 (1956); 27 id. 517, 521 (1948); B-69616, November 19, 1047. cf. 36 Comp. Gen. 268 (1956); 24 id. 796 (1945).

Under the various educational acts including the Higher Education Act of 1965 and the Vocational Education Act of 1963, there are numerous programs for different objects such as community service, library service, strengthening developing institutions and student assistance. Although we do not find that the provisions of the various educational programs specifically authorize assistance to Federal institutions, there is a specific prohibition of aid to such institutions in section 782(9) of title VII of the Higher Education Facilities Act of 1965 as amended by section 161(a) of the act of June 23, 1972, Pub. L. No. 92-318, 86 Stat. 303 (20 U.S.C. Sec. 1132e-1(9) (Supp. III, 1973)), with regard to the construction of higher education facilities. The prohibition reads: "The term 'public educational institution' does not include a school or institution of any agency of the United States." Furthermore, under the Cooperative Education Programs as provided for in title IV, the Higher Education Act of 1965, as amended (20 U.S.C. Sec. 1087a-c (Supp. III, 1973)), the Office of Education has defined an eligible institution to mean--

". . . an institution of higher education, an area vocational school, or a proprietary institution of higher education, except that no institution of the United States shall be eligible to enter into an institutional agreement with the Commissioner (42 U.S.C. 2759(b))." See 45 C.F.R. Sec. 175.2(f).

In these programs we believe it is clear that Haskell is eliminated from eligibility by the provisions excluding a Federal institution. With respect to the other education programs where grant assistance is made available generally, it is our view that a Federal institution such as Haskell would not be eligible for grant assistance unless specifically authorized in the grant program provisions since the Congress has already fully provided for the needs of the Federal institution by direct appropriations. It would appear that the Office of Education, HEW, being aware of the restrictive language of 31 U.S.C. Sec. 628 (1970), and of our decisions prohibiting the augmentation of appropriations, has not provided grant monies to Haskell under programs which might otherwise permit the school to receive such grants. We would necessarily concur with this position and answer your first question accordingly.

With regard to the second question as to whether Haskell is prohibited from receiving assistance under 42 U.S.C. Sec 225a (1070), this legislation provides:

"Appropriations to the Public Health Service available under this chapter for research, training, or demonstration project grants or for grants to expand existing treatment and research programs and facilities for alcoholism, narcotic addiction, drug abuse and drug dependence, and appropriations available under the Community Mental Health Centers Act for construction and staffing of community mental health centers and alcoholism and narcotic addiction, drug abuse, and drug dependence facilities shall also be available on the same terms and conditions as apply to non-Federal institutions, for grants for the same purpose to hospitals of the Service, of the Veterans' Administration, or of the Bureau of Prisons of the Depart of Justice, and to Saint Elizabeths Hospital, except that grants to such Federal institutions may be funded at 100 per centum of the costs."

Under the rule of statutory construction "Expressio unius est exclusio alterius", there is an inference that all omissions should be considered as exclusions. See C. Sands, Statutes and Statutory Construction, 4th ed., vol. 2a, sec. 47.23 p. 123, and Territory of Alaska v. Journal Printing Co., 135 F. Supp. 169 (D. Alaska 1955). Thus, since Haskell Indian Junior College is not specifically listed with the other institutions to which these funds may be granted under this authority, it is excluded. Should Haskell be interested in receiving funds under this section we would suggest that the legislation be amended to include Haskell Indian Junior College with the other institutions identified.

Finally, your third question concerned what amendment to the law would be necessary to permit Haskell to receive assistance under the various educational programs of the Higher Education Act of 1965 and other acts. This might be accomplished in two ways. Of course the most direct means would be to amend the provisions of those educational programs in which Haskell wishes to participate by specifically identifying Haskell as an eligible recipient. cf. 42 U.S.C. 225a supra. Another course, which would be for general application, would be to amend the Snyder Act (the act authorizing the Bureau of Indian Affairs to administer an educational program for Indians (25 U.S.C. Sec. 13 (1970)) to provide that Indian schools operated by the Bureau of Indian Affairs may be eligible to participate in and receive appropriated funds under the various educational programs administered by the Secretary of Health, Education, and Welfare or the Commissioner of Education.

If in view of what is presented here you decide to offer language which will amend the law to obtain these benefits for Haskell, we will be pleased to assist you in drafting such language if requested.