[Senate Hearing 115-76]
[From the U.S. Government Publishing Office]
S. Hrg. 115-76
S. 943, S. 1223, AND S. 1285
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HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
JULY 12, 2017
__________
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COMMITTEE ON INDIAN AFFAIRS
JOHN HOEVEN, North Dakota, Chairman
TOM UDALL, New Mexico, Vice Chairman
JOHN BARRASSO, Wyoming MARIA CANTWELL, Washington
JOHN McCAIN, Arizona JON TESTER, Montana,
LISA MURKOWSKI, Alaska AL FRANKEN, Minnesota
JAMES LANKFORD, Oklahoma BRIAN SCHATZ, Hawaii
STEVE DAINES, Montana HEIDI HEITKAMP, North Dakota
MIKE CRAPO, Idaho CATHERINE CORTEZ MASTO, Nevada
JERRY MORAN, Kansas
T. Michael Andrews, Majority Staff Director and Chief Counsel
Jennifer Romero, Minority Staff Director and Chief Counsel
C O N T E N T S
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Page
Hearing held on July 12, 2017.................................... 1
Statement of Senator Barrasso.................................... 4
Statement of Senator Cortez Masto................................ 34
Statement of Senator Daines...................................... 36
Statement of Senator Franken..................................... 37
Statement of Senator Heitkamp.................................... 2
Prepared statement........................................... 4
Statement of Senator Hoeven...................................... 1
Statement of Senator Lankford.................................... 5
Statement of Senator Merkley..................................... 5
Witnesses
Brainard, Hon. Warren, Chief, Confederated Tribes of Coos, Lower
Umpqua and Suislaw Indians of Coos Bay......................... 11
Dearman, Tony, Director, Bureau of Indian Education, U.S.
Department of the Interior..................................... 7
Prepared statement........................................... 8
Mann, Carla, President, National Johnson-O'Malley Association
(NJOMA)........................................................ 15
Prepared statement........................................... 16
Wharton, Donald R., Senior Attorney, Native American Rights Fund. 12
Prepared statement........................................... 13
Appendix
Begaye, Hon. Russell, President, Navajo Nation, prepared
statement...................................................... 43
Gentry, Hon. Donald C., Chairman, Klamath Tribes, prepared
statement...................................................... 44
Parrish, James, Executive Director of Education and Shane
Haddock, Director of JOM. Choctaw Nation of Oklahoma, joint
prepared statement............................................. 46
Letters submitted for the record by:.............................
Kirsten Baesler.............................................. 49
Yatibaey Evans............................................... 48
Hon. James R. Floyd.......................................... 51
Hon. Dave Flute.............................................. 49
Joy Hofmeister............................................... 47
Hon. Faron Jackson, Sr....................................... 47
Mary Jane Miles.............................................. 52
Jacqueline Pata.............................................. 50
Gloria Sly................................................... 50
Response to written questions submitted by Hon. Heidi Heitkamp
to:
Tony Dearman................................................. 52
Carla Mann................................................... 53
Donald R. Wharton............................................ 54
S. 943, S. 1223, AND S. 1285
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WEDNESDAY, JULY 12, 2017
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:30 p.m. in room
628, Dirksen Senate Office Building, Hon. John Hoeven,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. JOHN HOEVEN,
U.S. SENATOR FROM NORTH DAKOTA
The Chairman. I call the meeting to order.
Good afternoon to our witnesses. Thank you for being here
and of course also all of our Committee members. Senator
Heitkamp is sitting in for Senator Udall as our Vice Chairman.
I think he is having a little dental work done, so I am
guessing he would rather be here but we understand that is
important.
Welcome, Senator Heitkamp.
Today, the Committee will examine three bills: S. 943, the
Johnson-O'Malley Supplemental Indian Education Program
Modernization Act; S. 1223, the Klamath Tribe Judgment Fund
Repeal Act; and S. 1285, the Oregon Tribal Economic Development
Act.
On April 26, 2017, Senator Heitkamp, along with Senators
Daines and Lankford, introduced S. 943, the Johnson-O'Malley
Supplemental Indian Education Program Modernization Act.
Pursuant to the Johnson-O'Malley Act, the Bureau of Indian
Education assists the Indian children enrolled in public
schools where more than 90 percent of them attend. In my home
State of North Dakota, during the 2016-17 school year, 10,262
Native children, 83.6 percent of the Native children in grades
K-12, attended North Dakota public schools.
The types of services include dropout prevention,
culturally relevant instruction assistance, and academic
assistance such as tutorial services and school supplies. In
some cases, the Johnson-O'Malley program may be the only means
of academic assistance for even basic items such as school
supplies.
However, to date, the Bureau of Indian Education has not
conducted an accurate or verifiable student count for program
funding and distribution since 1995, more than 20 years ago. It
is estimated that up to two-thirds of the Indian children may
not be receiving assistance due to the lack of a current
official student count. Since this program may be a lifeline
for some Indian children, it is incumbent upon Congress and the
Administration to do everything we can to support and improve
it.
The bill, S. 943, amends the Johnson-O'Malley Act to direct
the Secretary of the Interior to provide for the full
participation of all qualified Indian students eligible for
this program. This bill would require the Secretary of the
Interior to provide a more accurate student count of Indian
students.
The bill would further require the Government
Accountability Office to provide a review and report on the
implementation of this Act. It would also mandate the
Department of the Interior to engage in negotiated rulemaking
regarding the funding formula and eligibility definitions.
I will note that North Dakota's Superintendent of Public
Instruction, Ms. Kirsten Baesler, has sent a letter of support,
and I will make that letter part of the record.
On May 25, 2017, Senator Merkley introduced S. 1285, the
Oregon Tribal Economic Development Act. It is co-sponsored by
Senator Wyden. This legislation would allow five Indian tribes
in Oregon to purchase, sell, lease, or otherwise convey fee
land, without further congressional approval or oversight. In
addition, S. 1285 provides that none of its provisions apply to
land held in trust by the United States for the benefit of
these tribes.
The third bill the Committee will examine is S. 1223, the
Klamath Tribe Judgment Fund Repeal Act. This legislation was
introduced on May 24, 2017 by Senator Merkley and is co-
sponsored by Senator Wyden. S. 1223 repeals the Klamath Tribe
Judgment Fund Act, which set forth a claim settlement
distribution process for the Klamath Tribe.
The bill is intended to allow distribution of claim
settlements against the United States for the Klamath Tribe to
proceed under the less cumbersome process in the Indian Tribal
Judgment Funds Use or Distribution Act.
I would now like to turn to Acting Vice Chairman, Senator
Heitkamp, for her statement.
STATEMENT OF HON. HEIDI HEITKAMP,
U.S. SENATOR FROM NORTH DAKOTA
Senator Heitkamp. Thank you, Chairman Hoeven, for calling
this legislative hearing today to consider S. 943, S. 1223 and
S. 1285. As said earlier, Senator Udall was unable to attend
this afternoon and graciously offered me this opportunity to
preside in his absence.
I want to first thank all the witnesses for traveling so
far today to present your important testimony. We know that
comes at some cost to your organizations and tribes. We always
appreciate it when we can hear something here in the United
States Congress other than beltway speak.
First, these are remarks written by my friend, Tom Udall.
``S. 943 was introduced by my colleague, Senator Heitkamp,
alongside Senators Lankford and Daines, that would help ensure
that the Johnson-O'Malley Program, which is so critical, would
serve all Native children. The Johnson-O'Malley Program was
designed by parent committees and grantees to suit local
individual needs of Native students.''
``It plays a critical role in supporting educational needs
of Indian students by making sure Native students have school
supplies, culturally-based extracurricular opportunities,
academic tutoring and other critical tools to ensure a
comprehensive learning environment. I look forward to this
Committee working together to support programs like Johnson-
O'Malley that provide all Native students with resources and
opportunities so they have the same chance at quality education
as other students.''
``We owe Indian Country nothing less and we owe our Native
youth nothing less. To that end, we need to work openly and
directly with Native communities to reconcile available data
and develop new eligibility student count structures. The two
remaining bills that are the subject of this hearing, S. 1223
and S. 1285, are non-controversial. They were introduced by our
friend and colleague, Senator Merkley. These bills tie together
to important topics, tribal sovereignty and economic
development. S. 1223 would repeal the Klamath Tribal Judgment
Fund Act. It is a remnant of the termination era that today
limits the tribe's ability to direct how its own funds are
actually spent.''
``S. 1228 would allow five tribes in Oregon to have more
control over land they own. This legislation will potentially
free up much needed private capital for investment back into
those tribal communities. Together these bills give the tribes
more autonomy over their own internal tribal affairs.''
``I look forward,'' meaning Tom, but I do also, ``to
working with Senator Merkley to mark up these bills and move
them forward for our consideration. Again, thank you to all the
witnesses today. I look forward to hearing the testimony.''
Mr. Chairman, for the record, I would like to introduce my
opening statement, especially as it relates to Johnson-
O'Malley.
The Chairman. Absolutely.
Senator Heitkamp. Thank you.
I just want to thank my co-sponsors, Senators Lankford and
Daines. Senator Lankford and I work together a lot on
government accountability. This is a program that drives us
crazy. We cannot get a count, so we need to fix this problem.
I also want to ask that the record include the statement by
the National Congress of American Indians in support of our
bill; the National Indian Education Association's letter in
support of our bill; the Tribal Education Department's National
Assembly's support of our bill; the North Dakota United Tribes
of North Dakota's letter in support of our bill; the support of
the North Dakota Department of Public Instruction, as Senator
Hoeven said; and the Muscogee (Creek) Nation's letter in
support of the Johnson-O'Malley bill being introduced and heard
today.
Senator Franken. And the Senate Red Head Caucus.
Senator Heitkamp. Thank you. That is our deal.
With that, Mr. Chairman, I thank you for calling this
hearing and I again thank the witnesses.
[The prepared statement of Senator Heitkamp follows:]
Prepared Statement of Hon. Heidi Heitkamp, U.S. Senator From North
Dakota
Thank you Chairman Hoeven for holding this hearing on my bill and
others today. I also want to thank Senators Daines and Lankford for
joining me in working to update student counts to better express the
amount of resources needed for Native students that are served by the
Johnson O'Malley or JOM program.
As this Committee has so often heard, data is lacking across Indian
Country. Because state agencies and policies continue to leave American
Indians and Alaska Natives out of data collection efforts, data
reporting, and analysis, Indian Country has become what the National
Congress of American Indians calls the ``Asterisk Nation''.
The Bureau of Indian Education has not been able to collect
accurate data for Native students served by the JOM program for more
than 20 years. It's time to make much needed updates so this program
can successfully serve our Native youth. The bill I introduced would
utilize Census data and other existing information to assist the Bureau
of Indian Education in overcoming this obstacle that has plagued the
JOM program since 1995. Even though the U.S. Census Bureau stated there
were nearly 800,000 qualified American Indian and Alaska Native
students in the JOM-eligible age group in 2010, we continue to use the
1995 student count of just over 271,000 Native students. This disparity
illustrates a substantial portion of unserved students.
Since the 1934 enactment of the Johnson-O'Malley (JOM) act, funds
under the program have provided critical support to Native students and
their cultures in public schools--where more than 90 percent of Native
students attend. Unfortunately, funding has been diminishing over time
due to the lack of official and verified data, freezing the estimated
number of eligible students to 1995 levels.
As one of the fastest growing demographics, we must ensure that
Native children receive the resources needed to achieve and sustain
their cultures. These children deserve to be represented by accurate,
verified data, not simply an asterisk.
Now is the time to examine different methods, so that we can
accurately portray need and then concentrate on getting essential
resources to our country's most vulnerable students.
Thank you again, and I look forward to finding solutions to this
issue as well as any insights for strengthening the legislation so that
it can best address the outdated student count and ensure that this
program is able to achieve what it was intended to do.
The Chairman. I want to acknowledge that Senator Merkley
has joined us. We will offer him an opportunity to comment on
his bill, but I would ask if other Senators would like to make
opening statements? We will start with Senator Barrasso.
STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM WYOMING
Senator Barrasso. Thank you very much, Mr. Chairman.
I welcome the opportunity today to welcome back to the
Senate one of today's witnesses from my home State of Wyoming,
Ms. Carla Mann, who is here today to represent the National
Johnson-O'Malley Association. She is a resident of Ft. Fort
Washakie, Wyoming and the Wind River Reservation.
She has visited my office a number of times over the last
several years and has testified before this very Committee. In
fact, she testified before the Committee last year on a
previous version of Senators Heitkamp and Lankford's Johnson-
O'Malley bill.
Ms. Mann, I appreciate your willingness to come to
Washington to be with us today, and to lend your voice and
experience to these important matters.
Education, especially in Indian Country, deserves the
attention of this Committee and the Bureau of Indian Education.
Mr. Chairman, Ms. Mann is a tireless advocate on these
issues and I am so pleased to help you welcome her to the
Committee again, today.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Barrasso.
Are there other opening statements? Senator Lankford.
STATEMENT OF HON. JAMES LANKFORD,
U.S. SENATOR FROM OKLAHOMA
Senator Lankford. I would like to jump in on the Johnson-
O'Malley conversation as well. I appreciate Senators Heitkamp,
Daines and all of our staff and how much work has gone into
this and the ongoing conversation about how to be able to make
sure this is right.
The Johnson-O'Malley Program is extremely important for the
people of my State and people around the Country. In fact, two
of my staff members were recipients of the Johnson-O'Malley
Program when they were in school.
Let me tell you the value of this in Oklahoma and what it
really means. As the Chairman mentioned, due to the lack of
count and it being updated over the last 21 years, the Oklahoma
Department of Education estimates we have 130,000 Indian
students in my State; 11,000 of them are currently eligible for
Johnson-O'Malley based on the fact the count has not been done
in 21 years. That is a pretty large disparity.
While we work through this process of trying to fix
something that is unacceptable, I look forward to actually
passing it through this Committee, getting it on the Floor,
getting it passed, and getting this done.
This is one of those things that should have been resolved
a long time ago. I am glad we are doing more than talking about
it and wishing it was different. I am glad we are working
through the process of actually making sure it is different.
I would like to ask unanimous consent to enter letters from
the Choctaw Nation of Oklahoma in support of the Johnson-
O'Malley bill and from our State School Superintendent, Joy
Hofmeister, in support of what has been done with this.
I would ask unanimous consent that they be included in the
record.
The Chairman. Are there other Senators wishing to make
opening comments? Senator Merkley.
STATEMENT OF HON. JEFF MERKLEY,
U.S. SENATOR FROM OREGON
Senator Merkley. Thank you very much, Chairman Hoeven, for
including these two bills that were introduced in partnership
with Senator Wyden.
I would like to acknowledge Chief Warren Brainard of the
Confederated Tribes of Coos, Lower Umpqua and Suislaw Indians,
who made a trip from Coos Bay to testify in support of S. 1285,
the Oregon Tribal Economic Development Act.
I would also like to acknowledge Don Wharton who is
representing the Klamath Tribe. He will provide background on
the need for the Klamath Tribe Judgment Fund Repeal Act.
The Oregon Tribal Economic Development Act is about tribal
sovereignty and economic development. Several months ago, the
tribe reached out to my office about a problem they had in
obtaining a commercial mortgage for a self storage property
they purchased.
The tribe had to pay out-of-pocket to purchase the
facility, which is not sustainable for the tribe or for most
tribes. At issue was an interpretation of the Indian Non-
Intercourse Act that would require tribes to get Federal
approval to purchase, sell or lease fee lands owned by
federally-recognized tribes.
The Department of the Interior does not make this type of
determination for non-trust lands. It is impractical to expect
a tribe to get approval from Congress each time they want to
obtain a mortgage for non-trust property.
The bill does not impact trust lands. It simply grants the
authority to tribes in Oregon to buy, sell or lease their non-
trust-owned land without further approval from the Federal
Government.
I look forward to working with the members of the Committee
to move this bill forward.
Let me turn to the Klamath Tribe Judgment Fund Repeal Act.
The Klamath Tribe was a victim of the termination era that
cruelly severed their trust relationship with the Federal
Government.
Even after formal termination, the Klamath people held on
to a stake in future claim awards against the government
including inadequate compensation for ceding ancestral lands.
This led to enactment of the Klamath Tribe Judgment Fund Act in
1965 which specified that any award be distributed based on the
final membership roll when the tribe was terminated in 1954.
This Act is a relic of the termination era and assumed that
the tribe would cease to exist in the Federal Government's
eyes. That is clearly not the case as the tribe was restored in
1986. Without repealing this Act, the tribe is rightly
concerned that any money left over from past awards or any
award they may receive in the future would have to be
distributed based on the 1954 roll, including heirs who are not
members of the tribe or even Native American.
The cost to identify heirs and determine eligibility, which
could be substantial, would be borne by the tribe. The tribe
deserves more from us. This legacy artifact is unworkable. That
is why this bill is an important bill.
I hope the Committee will work with the tribe and with
Senator Wyden and myself to give back the tribe's ability to
determine for themselves how the funds should be used.
Thank you for the chance to testify and again, thank you
for holding this hearing on these two bills.
The Chairman. Do any other Senators wish to make opening
statements? If not, we will proceed with our witnesses.
They are: Mr. Tony Dearman, Director, Bureau of Indian
Education, U.S. Department of the Interior, Washington, D.C.;
The Honorable Warren Brainard, Chief, Confederated Tribes of
Coos, Lower Umpqua and Suislaw Indians of Coos Bay; Mr. Don
Wharton, Senior Attorney, Native American Rights Fund, Boulder,
Colorado; and Ms. Carla Mann, President, National Johnson-
O'Malley Association of Tulsa, Oklahoma.
Welcome to all of you. I would remind you that your written
testimony in its entirety will be made a part of the record. I
would ask that you keep your opening statement to five minutes
or less.
We will start with Mr. Dearman.
STATEMENT OF TONY DEARMAN, DIRECTOR, BUREAU OF INDIAN
EDUCATION, U.S. DEPARTMENT OF THE INTERIOR
Mr. Dearman. Good afternoon, Chairman Hoeven, Acting Vice
Chairman Heitkamp, and members of the Committee. It is good to
be back with you. Thank you for the invitation to appear today
to provide a statement and recommendations on behalf of the
Department regarding S. 943, S. 1223 and S. 1285.
Regarding S. 943, the Johnson-O'Malley Supplemental Indian
Education Program Modernization Act, the Department supports
the bill and recommends some technical changes. Most recently,
BIE performed student counts, as required by Congress in 2012
and 2014, which surveyed JOM eligible students served by
current and prospective contractors.
Currently allowable under law, not all JOM contractors
submitted data to the BIE which affected our ability to
officially verify and formally update the data from the 1995
official count. That said, a total of 448 eligible entities
submitted student count data in 2012 which identified more than
321,000 eligible students as compared to the 1995 official
county which identified roughly 272,000 students.
The 2014 count resulted in more than 341,000 students for
the 399 eligible entities that submitted student data. An
accurate count of students served by the JOM Program is
essential to illustrate local need. It is critical that the
department utilizes funding in a way that diminishes waste and
supports programs that can accurately portray need.
The legislation works to accomplish this while ensuring
accountability for BIE as well as contractors and reporting. To
that end, the department supports S. 943 and offers the
following recommendations.
Section 7(a)(4) defines New Applicants as an entity that
applies to participate in a contract ``not later than 240
days'' in coordination with S. 943's reporting requirements for
the Bureau. The department believes this provision could
potentially limit prospective applicants due to the period
mentioned. We would be happy to work with you regarding
language that clarifies that new applicants will not be
restricted from applying as contractors.
Section 7(f) assumes sufficient funding will be available
to meet the hold harmless requirement. The department believes
the provision does not carve out an exception for potential
funding reductions and recommends adding language that the hold
harmless provision is contingent upon available funding.
I also want to note that the legislation directs the
department to cross-check student count data with that from the
U.S. Census Bureau, National Center for Education Statistics
and the U.S. Department of Education's Office of Indian
Education.
While we understand the need to analyze all sets of data to
determine accuracy and potential need, there may be issues with
comparing such data due to varying eligibility requirements and
legal definitions of eligible students. For example, the
Department of Education's Title VI formula grants are based on
student eligibility that is broader than the current JOM
eligibility.
Regarding S. 1223, a bill to repeal the Klamath Tribe
Judgment Fund Act, the department takes no position on this
legislation at this time. The Klamath Tribe Judgment Fund Act,
enacted October 1, 1965, authorizes the Secretary of Interior
to establish and apply appropriated dollars to a judgment fund
for the Klamath and Modoc Tribes.
At this time, the department needs to better understand how
the repeal of this Act will impact our trust responsibility to
the tribes but looks forward to working with the sponsors on
this proposal. Regarding S. 1285, the Oregon Tribal Economic
Development Act, which would allow the leasing or transferring
of certain lands not held in trust by the United States, the
Department supports this bill.
S. 1285 would expressly allow each of the tribes to lease,
sell, convey, warrant or transfer all or any portion of its
interest in any real property not held in trust status for the
benefit of the tribe. Under S. 1285, further approval,
ratification or authorization by the United States is not
required in order to validate the land transaction.
Members of the Committee, thank you for the opportunity to
present testimony today. The department looks forward to
working with the sponsors and the Committee on these
legislative proposals.
I would be honored to answer any of your questions.
[The prepared statement of Mr. Dearman follows:]
Prepared Statement of Tony Dearman, Director, Bureau of Indian
Education, U.S. Department of the Interior
Good afternoon Chairman Hoeven, Vice Chairman Udall, and Members of
the Committee. It is good to see you again. As Director of the Bureau
of Indian Education (BIE), I am here today to provide the Department of
the Interior's (Department) views regarding S. 943, the Johnson-
O'Malley (JOM) Supplemental Indian Education Program Modernization Act.
The Department supports the goals of S. 943 and recommends some
technical changes.
Background
The supplemental educational JOM Program is authorized by the
Johnson-O'Malley Act of 1934 and the implementing regulations are
provided in Part 273 of Title 25 of the Code of Federal Regulations. As
amended, this Act authorizes contracts for the education of eligible
Indian students not enrolled in Bureau- or sectarian-operated schools.
A local JOM program operates under a BIE approved individual
educational plan. JOM education plans include objectives designed to
address the educational needs of eligible American Indian and Alaska
Native students, offering students various opportunities, which may
include cultural enrichment, tribal language support, academic
assistance, and dropout prevention programs.
We understand that Indian students have unique educational and
cultural needs, which include learning their languages, cultures, and
histories. The supplemental JOM program has historically worked to
address this need by assisting Indian students who often enter public
school with an academic skills deficit. In short, JOM functions to help
Indian students thrive in an environment suited to their strengths.
Tribal organizations, Indian corporations, school districts, or
states may be eligible to receive such funds once they establish an
Indian Education Committee. The role of such committees is to approve
supplementary support programs. American Indian and Alaska Native
students are eligible if they are members of a federally-recognized
Indian tribe or one-fourth or more degree of Indian blood and
recognized by the Secretary as being eligible for services from the
Bureau. In addition, students must be age three through grade 12.
Student Counts
Most recently, BIE performed a student count as required by
Congress in Fiscal Years (FYs) 2012 and 2014. After formal consultation
with representatives from tribes, public schools, tribal organizations,
and parents, a total of 448 entities submitted student count data. The
FY 2012 JOM count identified 321,273 eligible Indian students as
compared to the last official count from 1995, which identified 271,884
eligible Indian students. The FY 2014 count resulted in a final student
count of 341,495 for the 399 JOM contractors that submitted data.
Allowable under law, not all current JOM contractors submitted student
count data to the BIE, which affected our ability to officially verify
and update the student count. As such, the current official count of
JOM-eligible students continues to be based on the number from 1995.
S. 943
An accurate illustration of need for students served by the JOM
program is essential. To that end, the Department supports S. 943. For
too long, the count has been considered inaccurate and therefore
difficult to confirm true local needs of students served by the
supplemental education program. As the BIE focuses on its core
institutional mission--providing for the direct operation of schools
and supporting classroom instruction for Indian students--we must
ensure taxpayer dollars are being used efficiently and effectively. As
such, it is critical that the Department utilizes funding in a way that
minimizes waste and supports programs that can accurately portray need.
This legislation works to accomplish this while ensuring accountability
for contractors in reporting their number of students served under the
program.
The Department has the following recommendations regarding S. 943,
the JOM Supplemental Indian Education Program Modernization Act:
New Applicants. Section 7(a)(4) defines ``New Applicants'' as
an entity that applies to participate in a contract ``not later
than 240 days. . .'' in coordination with S. 943's reporting
requirements for the Bureau. The Department believes this
provision could potentially limit prospective applicants due to
the period mentioned and suggests language that clarifies that
new applicants will not be limited to a particular timeframe.
Hold Harmless. Section 7(f) assumes sufficient funding will
be available to meet the hold harmless requirement. The
Department is concerned that the provision does not carve out
an exception for potential appropriation reductions and
recommends adding language that the hold harmless provision is
contingent upon available funding.
Student Count Data. Section 7(c)(1)(B)(i) directs the
Department, through the BIE Director, to cross-check student
count data with data from the U.S. Bureau of Census, the
National Center for Education Statistics (NCES) in the U.S.
Department of Education's Institute for Education Sciences, and
the U.S. Department of Education's Office of Indian Education
(OIE). The Department assumes that the bill is referring to the
student count used for OIE formula grant payments under Title
VI of the ESEA (formerly Title VII).
If that is the case, it should be noted that Title VI formula
grants are based on student eligibility that is broader than
the JOM eligibility, as OIE's count includes members of state-
recognized tribes, and children and grandchildren of members of
federally recognized tribes without regard to blood quantum.
The Department is also concerned that U.S. Census Bureau data
will include self-identified individuals who may not be
eligible for services because BIE jurisdiction extends only to
members of federally-recognized tribes or students who are
identified as eligible under the Act. We look forward to
working with the committee to ensure that the bill adequately
protects the privacy rights of Indian students and their
families.
Conclusion
Thank you for the opportunity to present testimony today on such
important legislation. The Department and BIE look forward to
continuing our work with this Committee, Indian tribes, and our
important stakeholders. We also look forward to working with the
sponsors of the legislation to address the aforementioned
recommendations. Thank you for your time, and I would be honored to
answer any questions you may have.
______
Thank you for the opportunity to present testimony on behalf of the
Department regarding S. 1223, the Klamath Tribe Judgement Fund Repeal
Act, which would repeal Public Law 89-224, commonly known as the
Klamath Tribe Judgement Fund Act. The Department is still reviewing the
legislation and cannot take a position at this time.
The Klamath Tribe Judgement Fund Act, enacted on October 1, 1965,
authorizes the Secretary of the Interior to establish and apply
appropriated dollars to a judgement fund for the Klamath and Modoc
Tribes and Yahooskin Band of Snake Indians, better known as the Klamath
Tribe.
Background
The Klamath Indian Reservation, located in southern Oregon, was
established by the Treaty of October 14, 1864. The reservation was
managed under the supervision of the Federal Government and
headquartered at the Klamath Agency. In 1954, the federal trust
responsibility for the reservation was terminated by the passage of the
Western Oregon Indian Termination Act. Upon formal termination, the
Klamaths were provided an opportunity to remain tribal members or
withdraw from their tribal membership. Those opting to withdraw their
memberships forfeited their share of some tribal assets, and those who
remained retained ownership of tribal assets. Both groups were able to
keep any interests in future awards claims.
Docket 100
The Aboriginal Title Claim case was settled when the Indian Claims
Commission issued an order on January 31, 1964, which granted a
judgement fund award of $2,500,000. This settled amount was to serve as
fair payment for lands in Oregon ceded under the Treaty of 1864.
Legislation authorizing distribution was not enacted by Congress until
October 1, 1965. Payment began in 1966 and each of the 2,133 members on
the membership roll received $1,124.00 resulting in a total of
$2,351,250.14 paid out, and the remaining balance supported attorney
fees and expenses.
Docket l00A
In September of 1969, the Klamath Tribe successfully claimed
additional compensation for lands ceded by Treaty of October 14, 1864.
The claim, better known known as `the boundary claim' involved 621,824
acres that were excluded from inclusion in the reservation boundaries.
Docket 100A was completed on September 2, 1969, with the sum of
$4,162,992.82 being granted in favor of the Klamaths. Payment began in
1970 with each member receiving $1,841.45. Historically, the Bureau of
Indian Affairs consulted with the Klamath Tribe to prepare proposed
distribution of judgment funds remaining in the various Klamath
accounts, pursuant to Klamath Tribal Resolution 96-15, dated March 6,
1996.
It is important to make clear that the Klamath Tribe Judgement Fund
Act is the appropriate vehicle for distributing this funding. We have
concluded that the Judgement Fund Distribution Act, which was signed
into law in 1973, does not apply to the Klamath Tribe Judgement Fund,
as its ability to apply dollars that were appropriated and authorized
for use and distribution precedes 1973.
In 1983 and 1996, funds were disbursed for each tribal member on
the 1954 Klamath roll. The Klamath Tribe currently has 188 Individual
Indian Money (IIM) accounts for tribal members. An estate account was
set up for deceased tribal members. These accounts are still open due
to lack of information, no death certificates, no birth certificates,
and Whereabouts Unknown. These funds will remain as IIM accounts with
the Office of the Special Trustee (OST).
Conclusion
At this time, the Department needs to better understand the impact
the repeal of this fund will have on our actions moving forward and the
trust responsibility we have to the Tribe, and therefore takes no
position on the legislation. Again, thank you for the opportunity to
testify on the S. 1223, the Klamath Tribe Judgement Fund Repeal Act. I
would be glad to answer any questions the Committee may have.
______
Thank you for the opportunity to provide a statement on behalf of
the Department of the Interior (Department) on S. 1285. This
legislation would allow the Confederated Tribes of Coos, Lower Umpqua,
and Siuslaw Indians, the Confederated Tribes of the Grand Ronde
Community of Oregon, the Confederated Tribes of Siletz Indians of
Oregon, the Confederated Tribes of Warm Springs, and the Cow Creek Band
of Umpqua Tribe of Indians to lease or transfer certain lands. The
Department supports S. 1285.
The Department is aware that the Tribes listed in this legislation
wish to lease, sell, convey, warrant, or otherwise transfer all or any
part of their interests in any real property that is not held in trust
by the United States for the benefit of the Tribes without further
approval, ratification, or authorization by the United States. As the
language in the bill indicates, such lands do not include any lands
held in trust by the United States for the benefit of the Tribes.
The Tribes have expressed their opinion that they cannot lease,
sell, convey, warrant, or otherwise transfer all or any part of its
interests in any real property not held in trust by the United States
unless authorized by Congress. The Tribes presumably are referring to
federal law, 25 U.S.C. 177, which prohibits any ``purchase, grant,
lease, or other conveyance of lands, or of any title or claim thereto,
from any Indian nation or tribe of Indians.''
S. 1285 would expressly allow each of the Tribes to lease, sell,
convey, warrant, or transfer all or any portion of its interest in any
real property not held in trust status by the United States for the
benefit of the Tribe. Under S. 1285, further approval, ratification, or
authorization by the United States is not required in order to validate
the land transaction. The legislation also clearly states that S. 1285
does not authorize the Tribe to lease, sell, convey, warrant, or
otherwise transfer all or any portion of any interest in any real
property that is held in trust by the United States for the benefit of
the Tribe. Given these clear lines, the Department supports S. 1285 and
believes this authority should be extended to all Tribes for fee simple
lands.
Mr. Chairman and members of the Committee, thank you for the
opportunity to appear before you today. I am happy to answer any
questions you may have.
The Chairman. Thank you, Director Dearman.
Now, I would like to call on the Honorable Warren Brainard.
STATEMENT OF HON. WARREN BRAINARD, CHIEF,
CONFEDERATED TRIBES OF COOS, LOWER UMPQUA AND SUISLAW INDIANS
OF COOS BAY
Mr. Brainard. Good afternoon. My name is Warren Brainard
and I serve as Chief of the Confederated Tribes of the Coos,
Lower Umpqua and Suislaw Indians. We are located along the
beautiful rural Oregon coast, a long way from Washington, D.C.
I am honored to testify today about S. 1285 and its
importance to my people. I am accompanied here today by Teresa
Spangler, who serves as Vice Chair of the Tribes.
This bill would remove barriers that hinder our effort to
create economic development opportunities and jobs not only for
our tribal community but also for surrounding communities.
These barriers stem from the overly broad interpretation of the
Non-Intercourse Act and by certain title companies and
financial institutions in Oregon.
The bill would give us the right to buy, sell or lease
property like any other American. It would make it clearer that
no approval is required from the U.S. for real estate property
transactions on our fee lands. The bill would also assist four
other tribes in Oregon in this regard.
Further, I would like to emphasize the bill would not
affect any trust land and does not relate to gaming.
We thank Senator Merkley for introducing S. 1285 and
Senator Wyden for co-sponsoring this bill. We appreciate their
efforts on our behalf. We also appreciate the Committee's
efforts.
The Indian Non-Intercourse Act is a series of Acts from
1790 to 1834 and was intended to establish the Federal
Government as the sole authority over Indian affairs in order
to maintain peaceful and stable relations with tribes and
prevent the loss of Indian lands from colonial encroachment.
The Acts prevent the sale, lease, transfer or other
conveyance of Indian land without Federal approval. Typically,
the Act has not prevented the tribe from being able to engage
in fee land transactions.
However, some of the companies and financial institutions
are interpreting the Act to require Federal approval for tribes
for these types of transactions. The Department of Interior
does not seek such determination for fee land transactions for
tribes. Seeking congressional approval for every fee land
transaction by a tribe is clearly impracticable.
Over the past 200 years, the application of the Act has
varied depending on the time period and location resulting in a
confusing set of judicial, legislative and administrative
decisions. In 2014, we encountered this problem. We sought to
purchase a self storage facility in Coos Bay, Oregon using a
commercial mortgage.
However, the title company's underwriters determined the
Act required the transaction be approved by the BIA and refused
to issue title insurance. We were unable to obtain a commercial
mortgage to purchase this facility and had to do all that we
could to put together enough cash to acquire the facility.
Although we were able to complete the transaction, we do
not have the means to execute all of our fee land transactions
in cash. Without passage of this bill, we will continue to
encounter this problem and will be unable to obtain mortgages,
sell or lease existing fee lands. This would severely hamper
our efforts to engage in economic development, create jobs and
acquire some of our ancestral lands. We seek passage of the
bill to address this problem.
Thank you for your efforts and working with us to enact
this bill into law. I appreciate this opportunity to testify
and would be happy to answer any questions.
Thank you.
The Chairman. Thank you, Chief Brainard. Thank you also for
your service. I understand your son is a Colonel in the Air
Force as well. We appreciate your service and his.
Mr. Brainard. Thank you.
The Chairman. Next is Mr. Wharton.
STATEMENT OF DONALD R. WHARTON, SENIOR ATTORNEY, NATIVE
AMERICAN RIGHTS FUND
Mr. Wharton. Good afternoon, Mr. Chairman and members of
the Committee. Thank you for the opportunity to be here today.
I especially want to thank Senators Merkley and Wyden for
introducing this legislation. I think Senator Merkley gave a
very good synopsis of it, so I will try to limit my comments to
additional issues.
I want to point out that this legislation, as pointed out,
was part of and is vestige of the Termination Act of 1954,
disastrous and ill-considered legislation that had very adverse
effects on the tribe and its people. In 1965 when this was
adopted, there were 2,133 members on the final roll who were
the distributees identified under this Act.
To give you one example of the inequities that flow from
this, a woman of the tribe married a non-Indian man. She passed
away and he, of course, was heir to her estate. Her son watched
as he then passed along his interest to his children, non-
Indians, watched as distributions came down and they received
money and he did not.
To understand how this actually operates is to understand
how inequitable it is and how disastrous it is for the tribe.
This legislation denigrates sovereignty; it disallows a tribe
the ability to determine the distribution and the allocation of
its own assets. It deprives significant numbers of tribal
members born after 1954 from sharing in any of that estate
unless they are an heir or legatee.
Just being a descendant does not necessarily guarantee
that. Current members of the tribe cannot share in the
distribution if they were born after 1954 and are not an heir.
It is very expensive to distribute this money. The last
distribution cost in the neighborhood of $300,000, because you
have to identify every single heir and legatee. You have to
know who they are, what their share is, where they live and how
to get a check to them.
That is not always successful but that is a very expensive
process for which the Bureau charges money and deducts that
money from the money in the account, therefore diminishing the
distribution. If the money cannot be distributed and it costs
more than it would be worth to distribute it, under this Act,
that money then goes back to the United States. It is not held
for the benefit of the tribe, which I think is, again, a
serious inequity to the tribe. Repeal of this Act would help to
rectify that problem.
Future judgments, by the way, it is not just judgment
money. This Act specifically requires that it applies to the
judgment fund and all other funds deposited to the credit of
the Klamath Tribes in the United States Treasury. It is not
just judgment fund money. It covers every resource that gets
deposited to the Treasury. It is important to understand this
Act has serious inequities and would rectify a longstanding
wrong to the tribe as a result of the Termination Act.
I understand the Office of Trust Services would like to
better understand what is going on and we would very much like
to facilitate the possibility of doing that. We would be glad
to work with you to help that happen.
If this repealed distribution of judgment funds would be
pursuant to 1401, the other Judgment Fund Act, that provision
in the Judgment Fund Act also provides if monies have been
distributed and have not all been distributed, those funds
under 1401(b) would be held for the benefit of the tribe.
That would be a significant step forward in rectifying this
inequity and serving the long term benefit of the tribe and
honoring its sovereignty.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Wharton follows:]
Prepared Statement of Donald R. Wharton, Senior Attorney, Native
American Rights Fund
Chairman Hoeven, Vice Chairman Udall and members of the Senate
Committee on Indian Affairs. My name is Donald R. Wharton. I represent
the Klamath Tribes as an attorney with the Native American Rights Fund.
This testimony is submitted in support of S. 1223 which will repeal The
Klamath Tribe: Judgment Fund Act of 1965, Pub. L. 89-224 (The Judgment
Fund Act). The Judgment Fund Act seriously compromises the Klamath
Tribes sovereignty and mandates distribution of tribal funds in a
manner detrimental to the best interests of the Tribes and its members.
It is the last remaining vestige of the disastrous and ill-considered
legislation that in 1954 terminated the government-to-government
relationship between the Klamath Tribes and the United States. That
relationship was restored on Aug. 27, 1986 by Pub. L. 99-398, by the
Klamath Tribe: Restoration of Federal Supervision Act.
I. The Historical Context of the Judgment Fund Act
The Klamath and Modoc Tribes and the Yahooskin Band of Snake
Indians (now Klamath Tribes) had their government-to-government status
as a recognized Tribe terminated in 1954 by the Klamath Tribe:
Termination of Federal Supervision Act, (Pub. L. 86-40; 68 Stat. 718).
This unilateral act of the United States Congress was taken without the
consent or support of the Klamath Tribal Government. The purpose of the
Act was to terminate Federal supervision over the trust and restricted
property of the Tribe, and to remove from individual members their
status as members of a ``recognized'' tribe. As a result, the lands and
other tribal property were monetized and distributed to individual
members of the Klamath Tribes. In order to accomplish this a ``final
roll'' of the members of the Tribe as of midnight August 13, 1954 was
compiled (the 1954 enrollees). There were 2133 members on that roll.
The more complicated process of determining which of the members were
the so-called ``withdrawn members'' and which were the so-called
``remaining members'' isn't germane to the consideration of S. 1223.
In addition to the reservation property of over 850,000 acres of
prime timber and ranch lands, the Tribe also had pending before the now
defunct Indian Claims Commission (ICC) lawsuits against the United
States seeking compensation for the mismanagement or misappropriation
of tribal assets; primarily timber and ranch lands. In the 1950s, and
until 1965, claims before the ICC and later the Court of Federal Claims
which resulted in judgments against the United States were not paid to
the Klamath Tribe until authorized and appropriated by Congress. As a
result, Congress determined that it would be more efficient to adopt a
``Judgment Fund Distribution Act'' that would allow for any funds
secured as a result of judgment against the United States and deposited
in the United States Treasury to the credit of the Klamath Tribe to be
distributed in accord with the specific requirements of that Act. Thus,
Congress adopted the Judgment Fund Act on October 1, 1965.
The Judgment Fund Act provided for distribution of funds
appropriated in satisfaction of judgments obtained by the Tribes, and
all other funds deposited in the United States Treasury to the credit
of the Klamath Tribes, to the 2133 people on the Final Roll. (Sec 4 of
Pub. L. 89-224). All funds deposited in the Treasury regardless of the
source (e.g., payments for rights-of-way, trespass damages, or other
revenues, together with any interest accrued) were included in the
application of the Act.
II. The Problem With the Judgment Fund Act
The Judgment Fund Act's limitation on distribution of funds to
persons on the ``final roll'', or to their heirs or legatees began to
have unintended and deleterious results. As time went on, the 2133
members on the final roll began to pass on. Under the terms of the
Judgment Fund Act, their share passed to their heirs or legatees. (Sec
2 of Pub. L. 89-224). Sometimes surviving spouses, sometimes children
or other surviving relatives. Many of the people to whom shares passed
were not Klamath tribal members, or even of Native American descent. As
a result, distribution pursuant to the Judgement Fund Act has four
impacts detrimental to the Tribes.
1. The Tribes have no ability to determine how tribal funds can
be allocated to members or other tribal priorities. Indeed,
many tribal members are ineligible to receive any part of the
distribution of such funds, and the Tribes cannot designate any
funds for general tribal benefit or development.
2. Because of inter-marriage with non-members the distribution
of funds under the Act result in distribution of significant
amounts of tribal funds to non-Indians and other non-members of
the Tribes.
3. Distribution to the living 1954 enrollees, or their current
heirs or legatees, requires a complicated process of
identification and certification of each individual,
necessitating an extraordinarily lengthy and extremely
expensive process. The costs for distribution are deducted from
the available funds, thus significantly reducing funds
available for distribution.
4. Should there be funds in the account which the Secretary of
the Interior determines are insufficient to justify further
distribution--which could be substantial given the
extraordinary cost of distribution--those funds must under the
Act be returned to the Treasury of the United States; not held
for the benefit of the Tribes.
The Judgment Fund Act did not contemplate the August 27, 1986
Klamath Tribe: Restoration of Federal Supervision Act, Pub. L. 99-398,
which restored the government-togovernment relationship between the
Tribes and the United States. Restoration in part reinitiated the
enrollment of tribal members born after the compilation of the 1954
Final Roll. It also reinvigorated the Klamath Tribes' Government which
manages the affairs of the Tribes. Despite the restoration of many
tribal powers the Judgment Fund Act disallows any tribal determination
over the distribution of funds in the United States Treasury for the
benefit of the Tribes or any members enrolled after August 13, 1954.
III. The Effect of Repeal
Repeal of the Judgment Fund Act would resolve these concerns and
allow the Tribes to determine the best use of funds presently in trust
accounts for the benefit of the Klamath Tribes. In the absence of the
judgments from the U.S. Court of Federal Claims--there are no further
claims before the ICC--would be made pursuant to the Indian Tribal
Distibution of Judgment Funds Use and Distribution Act of October 19,
1973, 25 U.S.C. 1401 (87 Stat. 466). That Act by its terms applies to
any ``Indian Tribe'', which includes the Klamath Tribes. It is
presently unavailable to the Klamath Tribes because the1965 Judgment
Fund Act preempts its application.
IV. Conclusion
The repeal of this last vestige of the disastrous and ill-
considered Termination Act of 1954 would be a welcome and necessary
next step in respecting the sovereignty of the Tribes and returning the
Klamath people to their former robust self-sufficiency.
The Chairman. Thank you, Mr. Wharton.
Ms. Mann, your testimony.
STATEMENT OF CARLA MANN, PRESIDENT, NATIONAL JOHNSON-O'MALLEY
ASSOCIATION (NJOMA)
Ms. Mann. Thank you for the honor of speaking before you
again today.
As you know, the National Johnson-O'Malley Association
speaks for the JOM programs across the Nation asking for the
unfreezing of the JOM Program. For approximately 16 years, we
have come to Congress asking for that to be done. In the last
four years, we have changed our direction.
When NJOMA began the pursuit of legislation to modernize
and reform the Johnson-O'Malley Program, we established four
primary goals for this legislation. First, we are seeking for
the JOM Modernization Act to obtain a complete update of the
student count for the number of Indian students eligible for
JOM services and assistance.
Second, we wanted to initiate and conclude an open, honest
and reality-based discussion about the true cost and funding
needed to provide these types of supplemental learning and
educational services and assistance needed by Indian students
in today's educational and career environment.
Third, we wanted to obtain a general update and
modernization of JOM's rules as reflected in Title 25, Code of
Federal Regulations.
Finally, we wanted to codify the objective of increasing
geographic and tribal participation in the Johnson-O'Malley
Supplementary Education Program.
When we wanted to update the student count, we looked in
different directions for how we were going to complete that.
One suggestion was to utilize the count from the Census which
is one of the accepted U.S. Government datasets, as well as the
National Center for Education Statistics and Office of Indian
Education, Department of Education.
A recently published article shows that the Native
population has increased by 26.7 percent across the Nation. The
children we count right now are approximately 272,000.
According to the Census, we have nearly 1 million reported.
NJOMA hopes to be able to continue working with this
Committee, our other congressional supporters, the Department
of Interior, and the BIE to fully identify and extend JOM
services and assistance to the full Indian student population
JOM is intended to reach.
In 1995, when the JOM was frozen, the students received
approximately $125 per student. Right now, in today's dollars,
we are getting $63. Effectively, that is around $43 per
student. It can be much less for those tribes who count all
students regardless of the number they are receiving money for.
On behalf of over 1 million Indian children eligible for
JOM, NJOMA is overjoyed by the Committee's speedy consideration
of S. 943 and would urge immediate approval. After 20-some
years of waiting for any action by Congress or the
Administration to rectify this shameful condition, that the JOM
Program exists today, we are encouraged by today's hearing and
the Committee's pending approval of this legislation.
We are hopeful that this Committee and the Senate will take
quick action on this bill so that the House would have the
opportunity to also quickly act on the bill. Given the number
of tasks prescribed in the bill, we pray that all this work can
be completed and put into place in time for the 2018-2019
school year.
Each school year that passes is one more year that our
students are not receiving the benefits they should be
receiving through treaty rights to further their education. To
meet the proposed schedule, we need this bill enacted and
signed by the President as soon as possible.
I thank you for your time and am open to any questions.
[The prepared statement of Ms. Mann follows:]
Prepared Statement of Carla Mann, President, National Johnson-O'Malley
Association (NJOMA)
Mr. Chairman and Members of the Committee, I am pleased to
represent the National Johnson-O'Malley Association (NJOMA) before you
today in support of S. 943, the Johnson-O'Malley Supplemental Indian
Education Program Modernization Act of 2017; legislation developed to
direct the completion of necessary updates to the Johnson-O'Malley
Supplemental Indian Education program (JOM) operated by the Department
of Interior, Bureau of Indian Education (BIE).
Mr. Chairman, as I have testified before, NJOMA has for nearly 25
years and through several Administrations advocated for actions to
reverse the Department of Interior and BIE's ``determined
unwillingness'' to complete the necessary work to be able to finalize a
count of the numbers of Indian students ``eligible'' for JOM services.
In 2012, 2014, 2016 and again in 2017, Members of Congress approved
language in the Interior appropriations bills directing the Department
and BIE to update and report to the Congress a count of the eligible
Indian students for the JOM program. Given this unacceptable situation,
I come here again today on behalf of the over 1 million Indian children
asking this Committee and the Congress to quickly approve S. 943 so
that these children can rightfully obtain the kinds of supplemental
educational services and assistance they need to become productive
American citizens.
We are extremely pleased and thankful that Senators Heidi Heitkamp,
James Langford, Steve Danes have stepped up to reintroduce legislation
to direct the Secretary of Interior to acknowledge the 20 plus year gap
in data collection for the JOM program, and to select and use one of
the widely accepted government data sets such as Census Bureau and/or
National Center for Education Statistics (NCES) data, to develop a
reasonably reliable projection of the current JOM-eligible student
population. This bill will authorize the Secretary to use one these
data sets to establish a new baseline count of eligible Indian students
for use in help BIE and NJOMA build a modern, more accurate, and
uniform allocation funding formula; establish a data reconciliation
process-like the one used by HUD in the Indian Housing Block Grant
program to work with Tribes, public school districts and other
organizations to refine, and establish on an ongoing basis, the
requirement for BIE to keep the count accurate and report this
information to the Congress on an annual basis.
When NJOMA began our pursuit of legislation to modernize and reform
the Johnson-O'Malley program, we established four primary goals for
this legislation:
First, we are seeking the Johnson-O'Malley Modernization Act
to obtain a complete update of the student count for the number
of Indian students ``eligible for JOM services and
assistance'';
Second, we wanted to initiate and conclude an open, honest
and reality based discussion about the true cost and funding
needed to provide the types of supplemental learning and
educational services and assistance needed by Indian students
in today's educational and career environment;
Third, we wanted to obtain a general update and modernization
of JOM's Rules, as reflected in Title 25, Code of Federal
Regulations; and
Finally, we wanted to codify the objective of increasing
geographic and Tribal participation in the Johnson-O'Malley
Supplementary Education Program.
Updating the JOM Student Count
For nearly 25 years and through several Administrations, the
Department of Interior and BIE have been unable, or in some peoples'
opinion, unwilling to do the necessary work needed to finalize a count
of the numbers of Indian students currently enrolled or calculate the
true total count of Indian students eligible for JOM services. It
should be noted once again that the JOM program has been all but frozen
in time since 1995: no updated student count, no update of the program
rules, and no real increase in funding to meet the real-time growth in
the eligible population as noted from data collected for other Indian
education activities and the 2010 Census (and its bi-annual Community
Population updates).
Once again, I would remind the Committee that in 2012, 2014, 2016,
and again in 2017, the Congress approved language in the Interior
appropriations bills directing the Department and BIE to update and
report to the Congress a count of the eligible Indian students for the
JOM program. Given what I believe we would all agree is a totally
unacceptable situation, we firmly believe that the ``total eligible
student population'' for JOM when projected using the accepted factors
of ``enrollment in a Federally recognized Indian tribe or \1/4\ blood
quantum'' that the eligible JOM Indian student count is well over 1
million Indian children verses the 272,000 students counted in 1995,
and still in use for funding and allocation purposes today.
NJOMA is totally supportive of the authorization contained in S.
943 that provides the Secretary of Interior with direct authorization
to select and use one or more of the widely accepted government data
sets such as Census, National Center for Education Statistics (NCES),
and data collected by the Office of Indian Education of the Department
of Education to develop a reasonably reliable projection of the
currently enrolled JOM-eligible student population. We hope to be able
to continue working with this Committee, our other Congressional
supporters and the Department of the Interior and BIE to fully identify
and extend JOM services and assistance to the full Indian student
population JOM is intended to reach.
Determining True Cost and Funding to Provide Supplemental Learning and
Educational Services and Assistance Needed by Indian Students
in Today's Educational and Career Environment
Under currently utilized JOM regulations (Title 25 Code of Federal
Regulations (CFR) INDIANS, Part 273, 16-17), JOM programs are based on
community and student needs assessments, not the needs of the school
district and therefore provide specialized educational services to
Indian students. As you may know, the JOM program is the only
Federally-funded Indian educational program that allows for student,
parent, and community involvement in meeting their educational needs
which are both academically, culturally and geographically based.
In 1995 when JOM was frozen, the per student allocation amount
funded was approximately $125.00 per student, based on the then 272,000
counted students. A review of the nearly 22 years of frozen funding for
JOM appearing later in this testimony shows that today's JOM per
student allocation is effectively $43.00 per student; an amount that is
not based on any accepted measurement of the true costs of the goods,
services, personnel and transportation costs and types of assistance
needed by JOM eligible students.
NJOMA is pleased that S. 943 directs the Secretary to establish, in
consultation with contracting parties, a present day per student
funding allocation that shall serve as a funding ``target baseline''
for the JOM program going forward. This baseline will enable all of us
to remain focused on insuring that the commitments make as far back as
the early 1800s, and codified in the 1934 Johnson-O'Malley Act, to
``ensure that Indian children received the educational opportunities
that would not otherwise be provided'' are kept.
We are also pleased that S. 943 requests that the Secretary make
recommendations for legislation to logically increase the amount of
funds available per eligible Indian student through contracts, at
amounts equal to or greater than the amount of funds that were
available per eligible Indian student for fiscal year 1995, and to
identify additional sources of funding that do not reallocate existing
funds otherwise utilized by Indian students served by JOM.
Finally, NJOMA is also supportive of the provisions that establish
``Hold Harmless'' funding conditions in S. 943, and are pleased that
they accommodate the need, should it occur, for JOM Contracting Parties
to adjust their program and services over a period to accommodate a
decrease in enrolled students should it fall below the number of
eligible Indian students identified in the initial eligible student
count for that program entity.
Updating and Modernization of JOM's Rules
The program operating rules for JOM are terribly outdated and
lacking in the kind of guidance generally needed by JOM Contracting
Parties. Many of the needed Rule updates are to provisions that have
not been reviewed or amended since the 1970s, or are in areas where the
Courts have rendered decisions that require JOM Rules to be brought
into compliance with the Court's findings such as the definition of
``eligible Indian student'' as ruled by the Ninth Circuit Federal
District Court in Diane Zarr v. Earl Barlow, 800 F.2d 1484 (9th Cir.
1986).
S. 943 instructs the Director of the Bureau of Indian Education to
undertake and complete a rulemaking process to determine how the
regulatory definition of `eligible Indian student' may be revised to
clarify eligibility requirements for contracting parties; determine, as
necessary, how the funding formula may be clarified and revised to
ensure full participation of contracting parties and provide clarity on
the funding process; and otherwise reconcile and modernize the rules
guiding the JOM program.
NJOMA looks forward to working with BIE and other JOM stakeholders
to improve and update the JOM program Rules; and are hopeful that this
effort will be conducted via a fully engaged and consultative process.
Increasing Geographic and Tribal Participation in the JOM Program
S. 943 instructs the BIE to consult with Indian tribes and contact
State educational agencies and local educational agencies that have not
previously entered into a contract to determine the interest of the
Indian tribes and State educational agencies and local educational
agencies in entering into contracts, and to share information relating
to the process for entering into a contract. This mandate is justified
because in 1996, BIE stopped accepting and processing applications from
Tribes and other potential JOM program contractors, even as inquiries
continued to flow into the Bureau from school districts, Tribes and
other eligible entities.
NJOMA strongly believes that as the true impact of the likely
``total eligible student population'' for JOM of well over 1 million
Indian children and that the need to increase the number of JOM
Contractors, expand resources and otherwise raise funding for this U.S.
Government ``Trust Responsibility'' program will be self-evident. We
likewise believe it is important that these and other outreach efforts
are critically needed to insure also that ``No Indian Child is Left
Behind.''
What Does the Census Data Tell Us?
In previous testimony NJOMA has spoken to the issues of using
widely acknowledged data and a reconciliation process to better
determine and establish a viable estimate of the number of JOM eligible
Indian students. The Native American population that has been one of
the demographic groups experiencing positive population growth for the
last 40 plus years. According to the 2010 census, 5.2 million people,
or 1.7 percent of all people in the United States, identified as
American Indian and Alaska Native, either alone or in combination with
one or more races. This population alone grew by 27 percent from 2000
to 2010. In the 2010 census, those who reported being American Indian
and Alaska Native alone totaled 2.9 million, an increase of 18 percent
from 2000 to 2010. The multiple race American Indian and Alaska Native
population, as well as both the alone and alone-or-in-combination
populations, all grew at a faster rate than the total U.S. population,
which increased by 9.7 percent from 2000 to 2010. The data also shows
us the steady growth that has occurred and is forecast to continue to
happen within the ages 3-12 years old demographic, and the forecasts up
to and beyond 2020 present this same picture.
In 2014, the U.S. Census Bureau provided Representative Tom Cole
(R-OK) with census data regarding American Indian and Alaska Native
child populations. The information provided included data tables that
reflect American Indian and Alaska Native population aged 3 to 18 years
by selected tribe from the 2000 Census, the 2006-2010 American
Community Survey, the 2010 Census, and the 2008-2012 American Community
Survey. In addition, the Census Bureau provided population projections
of the American Indian and Alaska Native population aged 3 to 18 years
for 2010 through 2020. According to the most reliable numbers available
from the 2010 Census, there are at least 798,000 Indian and Alaskan
Native students who are counted as having been enrolled in a single,
federally recognized tribe. That number is over 1.0 million eligible
Indian children who, based on meeting the current JOM 1/4thquantum
requirement, and attending Public Schools who we believe, should also
be receiving JOM services today.
Because of bureaucratic fumbling and Administration neglect, JOM's
student count has been frozen at 272,000 students since 1994. The
Senate Indian Affairs Committee stated in its 2012 Report accompanying
S. 1262 (Senate Report 112-262), ``[that] currently, 620,000 or 93
percent of Native students attend public schools and approximately
45,000, or 7 percent, attend BIE schools.'' It was clear then, and
remains true, that there are many JOM-eligible students being denied or
deprived of services that they are legally entitled to, amounting to a
failure of the Federal Government to meet its trust responsibility.
NJOMA has lead an effort--that we are pleased that the BIE has now
embraced--to temporarily set-aside BIE's once used annual student count
process, and replace their count with U.S. Census or other data to
build a new baseline count of JOM Indian students. We have argued that
Census data is reliable, comprehensive information that is provided
without any additional funding or resources for the Bureau. There are
many federally funded programs, including ones specifically for Native
American populations, which use U.S. Census data for the apportionment
of funds. Census information is reliable data upon which Congress and
the Administration regularly rely including for the Reading First State
Grants (Dept. Ed), Career and Technical Education--Basic Grants to
States (Dept. Ed), Tech-Prep Education (Dept. of Ed), Safe and Drug-
Free Schools and Communities State Grants (Dept. Ed), Water and Waste
Disposal Systems for Rural Communities (USDA), Grant Program to
Establish a Fund for Financing Water and Wastewater Projects (USDA),
Special Programs for the Aging Title VI, Part A, Grants to Indian
Tribes Part B, Grants to Native Hawaiians (HHS), Urban Indian Health
Services (HHS), Low-Income Home Energy Assistance (HHS), Head Start
(HHS), Family Violence Prevention and Services/Grants for Battered
Women's Shelters Grants to States and Indian Tribes (HHS), Preventive
Health and Health Services Block Grant (HHS), Violence Against Women
Formula Grants (DOJ), State Public Water System Supervision (EPA),
Water Pollution Control State, Interstate, and Tribal Program Support
(EPA), Nonpoint Source Implementation Grants (EPA), Economic Adjustment
Assistance (DOC), National Fire Plan--Wildland Urban Interface
Community Fire Assistance (DOI), Americorps (CNCS), Native American
Employment and Training (DOL).
The Federal Government, including the Department of Interior and
the Bureau of Indian Affairs use Census data for other Indian programs
including tribal housing, tribal roads, law enforcement, and labor
force reports. BIA currently uses Census data for its American Indian
Population and Labor Force Reports and Congress regularly uses this
data to inform policymaking decisions. Census data is also widely used
locally for planning and program purposes to identify appropriate
economic development approaches and gauge particular community needs
and resources. Another critical use of this data is to determine levels
of federal funding for tribes under the Workforce Investment Act, the
Indian Housing Block Grant program, the BIA Tribal Transportation
program, and many other Indian programs. Using Census data would reduce
duplicitous spending by BIA to perform a count for which data already
exists. Any significant changes to data collection (or lack thereof)
and the continued non-collection of data impact the ability of tribal
governments to adequately provide for their citizens, and affect the
federal government from carrying out its trust responsibility in
essential social and economic areas.
In 1997, OMB issued a Federal Register notice regarding revisions
to the standards for the classification of federal data on race and
ethnicity. OMB developed race and ethnic standards in order to provide
``consistent data on race and ethnicity throughout the Federal
Government. The development of the data standards stem in large measure
from new responsibilities to enforce civil rights laws.'' Among the
changes, OMB issued the instruction to ``mark one or more races'' after
noting evidence of increasing numbers of interracial children and
wanting to capture the diversity in a measurable way and having
received requests by people who wanted to be able to acknowledge their
or their children's full ancestry rather than identifying with only one
group. Prior to this decision, the Census and other government data
collections asked people to report only one race.
The OMB states, ``many federal programs are put into effect based
on the race data obtained from the decennial census (i.e., promoting
equal employment opportunities; assessing racial disparities in health
and environmental risks). Race data are also critical for the basic
research behind many policy decisions. States require these data to
meet legislative redistricting requirements. The data are needed to
monitor compliance with the Voting Rights Act by local jurisdictions''.
While BIE has traditionally relied on tribes to provide data for
the student count, tribes should not bear sole or primary
responsibility for providing quality data with little to no resources,
training, or other support from the Bureau to do so. It is clearly
essential that student count data be available for monitoring the
quality of services that the BIE and JOM contractors are responsible
for providing to American Indian and Alaska Native students. Going
forward, there needs to be greater coordination between the BIE, Census
Bureau, and the Office of Management and Budget to address the
widespread problems that plague data collection generally in Indian
Country, and especially JOM.
For the record, BIA/BIE's 2012 and 2014 counts--as imperfect as
they were--made it clear that there have been increases in the number
of students needing and being serviced by JOM since 1995. The only real
issues in dispute today are how much of a student increase has
occurred, and what the cost would be of adequately serving this
population. As the number of students served by JOM has grown, so too
must the funding in order for JOM to continue to operate and offer the
much needed services it provides to an already underserved Native
American population.
In our view, at this point in time, it is clear that this data is a
more comprehensive compilation of population data and more accurately
reports the demographics of the client group that JOM is intended to
serve. The BIE has more than proven that is not capable of performing
and reporting student counts as mandated by Congress. S. 943 will
direct the use of Census and/or other data to bridge the over 20-year
gap since the last true JOM student count, but does serve as a
replacement for a BIE count altogether.
We look forward to working with BIE, the current JOM contractors
and all new program providers in providing Congress with accurate and
compelling justifications for increases in funding and expansion of the
allowable-but badly needed-program activities that JOM can operate that
will advance the attainment of the goal of enhancing the education and
training of Indian students.
JOM Funding and Student Count History
For over 60 years, the JOM program constituted a separate
appropriation under the Federal budget and appropriations bills.
However, in 1995, the Bureau of Indian Affairs moved the JOM program
into the TPA budget category of the BIA. The TPA is a block grant to
tribes of a number of program allocations and authorities which
originally were separate programs. Theoretically, the TPA system allows
tribes flexibility to move funds between activities within the program
to meet locally, tribally designated priorities. However, as with most
block grant schemes, the TPA has been used as a budget regulatory tool,
with amounts for the TPA account limited and not increasing with the
needs of various components. In fact, the TPA has allowed the Federal
government to flat-line funds for the account for years, while the
needs of the constituent programs have increased. The tribes and the
JOM Indian community resisted the proposed Bureau addition of the JOM
to the TPA. Despite tribal and educator opposition, the BIA added the
JOM program to the TPA, creating the current program.
Prior to the 1995 freeze, the BIA had a full time JOM Director in
the D.C. office. This director collected the program annual reports,
student count information, and provided technical assistance the
programs. While there were local JOM managers in the regional BIA
offices that oversaw the local JOM programs and provided direct
technical assistance, the JOM program administrators had a direct line
to the Director in D.C. The Director's primary task was to provide the
JOM programs with their annual funding based on the student count
received from the local JOM managers. The Director makes a funding
distribution based on the national budget divided by the student count,
taking into consideration the cost of living in each state. For
example, Alaska received the highest per student cost based on the high
cost of living in that state.
The regional JOM managers would collect the information from the
local JOM programs; they would put out notices of deadlines, hold JOM
forums, and conduct annual evaluations of each program, including a
random student certification verification and financial audit review.
These regional managers would provide their findings of non-compliance
to the programs and provide them a timeline to comply or funding would
be withheld until such time as the individual program was compliant
with federal regulations and BIA policies and procedures. Compliance
included annual reports, student count certificates, or lack of Local
Indian Education Committee (LIEC) involvement.
The LIEC is comprised of parents of eligible Indian students
enrolled in the public school district. Choices are made at the local
level, with scarce resources going to locally determined needs. The
regional JOM managers also reviewed each JOM program application and
ensured that there were measurable goals and objectives based on an
actual needs assessment that was conducted annually. In addition, the
managers reviewed their prospective budgets before forwarding them to
the Director in D.C. The managers collected the following from each
program and sent them to the Director: annual needs assessment, program
application with measurable goals and objectives, budgets, student
count verifications, LIEC bylaws, and LIEC election process.
In 1982, the BIA proposed eliminating the JOM, arguing duplication
of Indian Education Act. Congress soundly refuted this reasoning,
stating the programmatic differences in local Indian control and scope,
and difference in student eligibility. In 1983, the Department of
Education (DOE) proposed eliminating the Indian Education Act, arguing
similar funding was available from DOE and the lack of accountability
for how the funding was used.
The U.S. Department of Education oversees the Title VII Indian
Education Act programs and Title VIII Impact Aid funding which Congress
considers duplicate funding sources for Indian Education. The Title VII
program is run directly through the school districts and is not subject
to tribal control. The tribes have no actual authority over the design
or implementation of the Title VII programs.
Under the JOM regulations, parents of eligible JOM Indian students
are `vested with authority'' to design and implement local JOM
programs. 25 Code of Federal Regulations (CFR) INDIANS, Part 273, 16-
17, states JOM programs are based on community needs assessments, not
the needs of the school district and therefore provide specialized
educational services to Indian students. The JOM program is the only
Federally-funded educational program that allows for student, parent,
and community involvement in meeting their educational needs which are
both academic and cultural based.
The eligibility for Title VII students is not based on students
being an enrolled member of Federally-recognized tribe; they simply
need to identify themselves on a DOE Form #506. Congress reacted so
negatively to this proposal that any further debate on these two
programs was shelved and put to rest.
However, the effort to eliminate JOM was resurrected in 1995. The
effort to eliminate JOM began with the reduction and eventual phasing
out of the regional JOM manager positions, and eventually, the
Director's position in D.C. The Director went from a full time
coordinator, to a quarter time position, and then phased out
altogether. At this time, there was an effort by the BIA to put more
emphasis and efforts into the Bureau-operated schools and wanted to
direct JOM funds to those schools.
JOM funding has been in a state of ``suspended animation'' since
1995. The funding formula and the movement of JOM into TPA has caused
many tribes and other grantee/contractors under JOM to be frozen at the
1995 student count and funding figures, indefinitely. In 1994 the
eligible Indian student count was 272,000 and now there is an unmet
financial need for the additional JOM students currently being served
by public schools throughout the nation. This student count is not an
accurate representation of the number of Indian students served today.
Since the freeze in 1994, there has been no correlation of
educational services with the lack of an accurate Indian student count.
The JOM programs are not able to show due to the freeze and those
Indian students attending public schools are being overlooked for
services. Without a current JOM student count, there is no way to
estimate the current percentage of JOM students being served in
comparison to the BIE.
Many in Indian country believe that the Department of Interior and
the BIE have mismanaged the JOM count for over two decades, a situation
they many contend is a clear violation of the Federal Government's
Trust Responsibility to Indian Country. Evidence of this mismanagement
by BIA occurred with the FY 2007 Budget submission. Lack of program
performance accountability, duplication of other state and federal
programs and implementation of management efficiencies were among the
reasons given in the budget documents for the reprogramming of twenty-
five percent of JOM funds by the BIA Tribal Budget Advisory Council
(TBAC). The BIA has not monitored the JOM program properly since 1995,
and thus these reasons are invalid and unverifiable. The JOM program is
the one remaining Federal program that puts the program under the
strict control of a LIEC.
Legislative History of JOM and the House Subcommittee on the
Department of the Interior FY 1993-2017
Source: Dept. of the Interior Budget Justifications and
Performance Information
Conclusion
On behalf of the over 1.0 million Indian children eligible
for JOM, NJOMA is elated by the Committee's speedy
consideration of S. 943, and would urge its immediate approval.
After 25 years of waiting for any action by Congress or the
Administration to rectify this shameful condition that the JOM
program exists today, we are encouraged by today's hearing and
the Committee's pending approval of this legislation.
We are hopeful that this Committee and the Senate will take
quick action on this bill so that the House would have the
opportunity to also quickly act on the bill. Given the number
of tasks that are prescribed in the bill, we pray that all this
work can be completed and put in place in time for the 2018-
2019 school year. To meet this proposed schedule, we need this
bill enacted and signed by the President as soon as possible.
Thank you.
The Chairman. Thank you, Ms. Mann.
We will now start with five minute rounds of questions.
My first question is for Mr. Dearman. In regard to S. 943,
right now, I think the number is 271,884 students as the count
from the BIE in regard to Johnson-O'Malley total eligible
student population. We are anticipating that it could be over 1
million.
How do you establish the determination of eligible Indian
students and how are you going to make sure that you get an
accurate count?
Mr. Dearman. Thank you for your question, Mr. Chairman.
We have already started conversations with the National
Johnson-O'Malley Association and talking about how we are going
to conduct this count.
One of the things S. 943 will assist us in doing is
requiring all the contractors actually report current official
counts. We have not had that up to this point. We definitely
need that.
The other thing is we really have to utilize our tribes
because the tribal enrollment from each one of our tribes is
going to have what we are looking for because right now the
requirement to receive services from the Bureau of Indian
Education is you have to be a member of a federally-recognized
tribe or you have to be one-fourth blood quantum.
Right now, we are looking forward to working with the
National Johnson-O'Malley Association, NIEA, NCAI and our
Department of Education.
The Chairman. Ms. Mann, I would like some of your thoughts
as well in terms of how that count should be conducted.
Ms. Mann. I agree with Mr. Dearman. We have been in talks
and would like a working group for us to be able to look at how
we want to continue to count after we get the baseline count
through like the Census. That is going to give us a starting
point.
Right now we do not have a starting point because it has
been so long. The last two counts that were done through the
Bureau were really just an update, so we have no real numbers
of what we should have except what we can see in the Census.
At that point, they are showing at least 1 million. All of
those students could be eligible if they meet the Bureau
requirements which are, as Mr. Dearman said, enrolled in a
federally-recognized tribe or at least prove they are one-
quarter blood degree.
Like he said, the tribes are going to be key in getting
enrollment information for us. I know in some areas the Census
numbers may even be lower than what they are. A lot of times
the Census takers are not able to get to some places on the
reservations. I know those numbers could be lower as well.
The Chairman. Mr. Wharton, there is a reserve fund that
goes with the Klamath Tribe Judgment Fund Act. If the
legislation is repealed, what happens to the reserve fund?
Mr. Wharton. There are four accounts held by the Bureau of
Indian Affairs on behalf of the Klamath Tribes. One of them is
frequently referred to as the Litigation Account. It is an
account that was established initially in 1958 to pay for the
cost of litigation and $350,000 of tribal funds was put into
that account.
As judgments were entered and paid out, the monies from
those judgments were set aside to continue that $350,000 in the
account. The money in the account now is about $397,000. That
is the $350,000 plus the interest it has accrued over time.
With the repeal of this Act, it is my belief, based on my
reading of 1401, that having been distributed under the Act,
the judgment that was the source of this, these funds would
then be eligible for the tribe to determine for themselves how
it would be spent.
As Mr. Dearman has indicated, we need to work with the
Office of the Special Trustee to make sure we come to an
agreement about how those accounts can be managed.
The Chairman. Chief Brainard, the bill, S. 1223, would help
your tribe in securing title insurance and completing your fee
transactions. How does it help you accomplish that?
Mr. Brainard. By clarifying what is required from the BIA
or not required so the title companies and the financial
institutions are clear about how it is supposed to operate.
The Chairman. Senator Heitkamp?
Senator Heitkamp. Mr. Chairman, I will defer to my
colleagues to the left.
STATEMENT OF HON. CATHERINE CORTEZ MASTO,
U.S. SENATOR FROM NEVADA
Senator Cortez Masto. Thank you.
Mr. Dearman, help me understand this. I am looking at your
testimony and was listening earlier.
If I am correct, the student data count is taken from 1995
which identified 271,884 eligible Indian students. However, we
know that in 2012, there was a count identifying more, 321,273,
and then again in 2014, the count resulted in the final student
count of 341,495.
We know there is more than the 1995 numbers but we also
know, according to what you are saying, that not all the JOM
contractors submitted data.
As a result of that, we are going back to 1995 eligibility
numbers even though we know it is less? Is that what I am
hearing?
Mr. Dearman. Yes. The counts from 2012 and 2014 could not
be verified because not all the contractors reported.
Senator Cortez Masto. The 1995 numbers were verified?
Mr. Dearman. That was the last official count that is on
record.
Senator Cortez Masto. What do you determine is
verification?
Mr. Dearman. I would have to go back, Senator, and ask or
find out. I can provide to you in writing what the process was
in 1995.
Senator Cortez Masto. I am curious why is it taking so long
for this to be updated, for the information to be transparent,
for the verification to occur?
What is the holdup, number one? Number two, once we
hopefully pass this bill, how can it be verified that you will
continue to provide this updated information if you cannot do
it now?
Mr. Dearman. By partnering with the National Johnson-
O'Malley Center, our tribes and our contractors, actually by
improving communications with our contractors, and creating the
partnerships that we have created, we feel that is going to
help us bring the JOM count up to where we need to get it and
get the assistance we need.
I cannot really answer for what happened in 2012 or 2014,
but I know we are looking forward to moving forward to
collecting and getting the official counts coming up.
Senator Cortez Masto. Can you guarantee to us that moving
forward you will do just that?
Mr. Dearman. I can guarantee we are going to do everything
we can to get that count up. The tribes are going to be a big
part of the count and working with the tribes to get tribal
enrollments, the U.S. Census, and cross checking the student
data that we receive to make sure they are really eligible for
services.
Senator Cortez Masto. Without the hearing today, would we
even know this updated data that has existed because, to my
understanding, there is no transparency other than what you
just told us?
Mr. Dearman. I believe we have been submitting some answers
when we receive requests.
Senator Cortez Masto. But there is nothing on the website,
there is nothing out there that if the tribes want that
information, parents want that information, nobody has any
specific data on the counts you have done and the available
numbers, is that correct?
Mr. Dearman. To my knowledge, it is not on our website
right now, but we are working on getting our website to where
it is more efficient for the public.
Senator Cortez Masto. Does BIE have any other student data
or student outcome-related data, for example, graduation rate
trends, absenteeism trends in BIE schools and so forth that you
can share with the Committee?
Mr. Dearman. That is a great question. Since taking office
in November, we have been behind in student data for three
years. Since we have been there, we have actually come together
and worked hard and are getting caught up on our student data.
One of the things we have always been hammered with or
talked about is our low graduation rate. Looking at and
concentrating on our data, we are showing the 2014-2015
graduation rate, just because we have started concentrating on
data and really correcting how we record the data at the school
level, right now it is 67.49 percent.
The 2015-2016 graduation rate is showing to be
approximately 83 percent. We are starting to focus on getting
back to the schools and working with how we are recording the
data. We have to do a better job of giving our schools a list
of what we are expecting to be recorded in our system.
Senator Cortez Masto. Do you have a plan to provide that
data on a regular basis, whether to the Committee and/or to
anyone else asking for that data and information?
Mr. Dearman. Absolutely. We are currently working on a
communications plan. Right now, our website needs to be
revamped. That will be a good place where we can share our
data, announcements and anything else we have going on with
BIE.
Senator Cortez Masto. Thank you. I appreciate the
conversation today.
With respect to the other bills, I am supportive. I think
what I have heard today and in the conversations I have had, it
makes sense to me that we should be doing everything we can to
pass those bills.
Let me just say I do not understand why our students in
Indian Country deserve anything less than any other student in
our States. It just does not make sense to me.
Why is this happening? We need to do a better job. We need
to do a better job of calculating that data, verifying it, not
delaying it, and making sure we are bringing the necessary
resources to the students who are there.
I will be watching. I look forward to working with you to
help collect this data.
Thank you.
The Chairman. Senator Daines.
STATEMENT OF HON. STEVE DAINES,
U.S. SENATOR FROM MONTANA
Senator Daines. Thank you, Mr. Chairman and Ranking Member
Heitkamp.
Coming from a State that probably has a strong Indian
Country heritage, I would say that providing our Native
students with a strong education is absolutely an essential
part of the U.S. trust responsibility.
In Montana, our 12 federally-recognized tribes very much
benefit from the Johnson-O'Malley Program which is why I was
pleased to join Senators Heitkamp and Lankford in introducing
the Johnson-O'Malley Supplemental Indian Education Program
Modernization Act. This legislation will help ensure full
participation of all eligible Indian students in this program
which addresses their unique academic as well as cultural
needs.
In 2012 and 2014, and most recently in 2017, Congress
approved Interior appropriations and was directing Interior and
the BIE to update and report a count of Indian students
eligible for the Johnson-O'Malley Program.
Mr. Dearman, to your knowledge, has BIA presented the
reports suggested in the Interior appropriations bills?
Mr. Dearman. To my knowledge, right now there have been no
reports submitted, but we are working on completing the
reports. We will start getting the reports turned in on time.
Since becoming director, one thing we are working on is our
responsiveness.
Senator Daines. They have set the bar pretty low in the
past, so I am sure you can beat that. The question is, without
having the updated counts, what is the numerical count that BIE
currently uses for Johnson-O'Malley?
Mr. Dearman. The 1995 official count of 271,884 students.
Senator Daines. That is deplorable.
Mr. Dearman. It is very low.
Senator Daines. It is stunning. Can you imagine anyone
running a business, running a program, using data from 1995 as
the best data?
Let me ask this question. Are you aware how many students
the National Congress of American Indians and the National
Indian Education Association see as eligible for Johnson-
O'Malley based on Census data?
Mr. Dearman. No, Senator, I am not.
Senator Daines. The answer is 798,486 versus the number you
gave me of 271,884. I have each of these organizations'
documents with me here today that I can provide.
Roughly 800,000 versus 272,000 represents a serious gap
between students being served and those who are supposed to be
served. Do you believe the legislation that Senators Heitkamp
and Lankford have proposed will help fix this disparity and
result in a more accurate number of students served?
Mr. Dearman. Yes, Senator, I do. That is why the department
supports S. 943.
Senator Daines. I appreciate the support.
In what other ways do you see this legislation as
beneficial to the education of Native American students?
Mr. Dearman. The biggest part I have seen that is really
going to help us as far as continuing to update the account is
the reporting requirement.
As I stated in my testimony, the 2012 and 2014 counts could
not be verified because not all of the contractors reported. By
law, they did not have to. S. 943 requires them to report.
Senator Daines. So we are 22 years late at the moment.
First of all, I appreciate your comments. I appreciate your
commitment to getting this right. My request would be that we
actually see results. Washington, D.C. is famous for bragging
about activity and will brag about activity in a press release
so folks back home think something is going on.
The bottom line is, it is the result that ultimately
matters. The activities can be important, but that is a means
to an end, and that is actually getting the result and getting
the updated numbers so we can help the students out there in
Indian Country.
Thank you for BIE's strong support of this legislation. I
very much look forward to getting this legislation enacted into
law.
Thank you, Mr. Chairman.
The Chairman. Senator Franken.
STATEMENT OF HON. AL FRANKEN,
U.S. SENATOR FROM MINNESOTA
Senator Franken. Thank you, Mr. Chairman.
I am going to support all three pieces of legislation, the
Johnson-O'Malley piece and the two Oregon pieces.
Director Dearman, I just wanted to ask about something else
but something very central to education in Indian Country.
Indian Country has a shortage of qualified educators. We have
to support programs to get more teachers and principals to
tribal communities.
Would you speak to some of the specific challenges that
Native communities face regarding teacher shortages and
attracting educators to Indian Country?
Mr. Dearman. Challenges, Senator?
Senator Franken. Challenges.
Mr. Dearman. Isolation, drug use, abuse, low economic
status, there are a lot of challenges.
Senator Franken. Housing?
Mr. Dearman. Yes, housing. May I address some of the things
we are doing to combat that?
Senator Franken. Sure.
Mr. Dearman. Right now, human resources came under BIE on
January 8, 2017. That has given us control of how we advertise.
We have actually amended our hiring practices to match the
States in which our schools reside because we had such
stringent hiring qualifications that it was easier to go down
the road and get a job in a public school than it was to get a
job within the Bureau of Indian Education. We are making
advertisements and qualifications match the States in which our
schools reside.
Also, looking at the way we advertise. Coming out of
education, North Eastern State University in Tahlequah,
Oklahoma, I did not know about BIE because I did not go to the
government system to look for jobs. I went to teacher websites.
We are really looking at how we advertise, where we advertise
and also having outreach to universities that have teacher
education programs.
Senator Franken. Senator Tester, Vice Chairman Udall and I
have a bill called the Native Educator Support and Training
Act, the NEST Act. This bill would provide new scholarships,
Federal student loan forgiveness, teacher development courses
to prospective or existing educators or American Indians who
commit to teaching at schools that serve high populations of
Native students or both and schools that have both BIE and
local public schools that have a high population.
I think it is critical that we find ways to recruit and
support teachers who come to Indian Country, particularly
because of those challenges and because of the shortages.
I hope that my colleagues on this Committee can continue
to, I know Senator Heitkamp and I have done this, talk to our
caucus. We who serve on the Indian Affairs Committee get
testimony all the time and understand the challenges that face
Indian Country in ways that our colleagues do not, obviously.
I think given the special nature of these challenges and
also our obligations, this is one area where education is so
key and that is if you have teacher shortages, if we can make
it easier to teach in Indian Country, given all the challenges.
The challenges are if you are a teacher and want to bring
your spouse and family, your spouse is going to ask about
housing. If you have kids, they are going to ask about the
school there. If they have health care issues, they are going
to ask about the health care there.
All of these tend to be challenges to recruiting folks in
any field. We hear it on Indian health and we hear it on
everything.
I just want to urge my colleagues to be cognizant that
sometimes in our caucuses we are the ones that really should be
carrying this message.
Thank you, Mr. Chairman.
The Chairman. Senator Lankford.
Senator Lankford. Thank you, Mr. Chairman.
Tony, it is good to see you again. It is good to have a
good Oklahoman taking care of that. I would assume that good
Oklahoman is going to fix everything and be able to get this
all done. We look forward to getting this resolved as well in
the days ahead.
Can you help me understand what has prevented BIE from
updating the Johnson-O'Malley count for the past 21 years?
Mr. Dearman. Right now, being unable to verify the count
and not having a bill like S. 943 to require the contractors to
actually report the eligible students they have in their
programs.
Senator Lankford. Do you think this bill really solves the
issue? My concern is that two years from now, I do not want us
to come back and say actually we needed something different
than what we have. Do you feel confident this will actually get
us up to date?
Mr. Dearman. From what I have seen right now, I think this
is a great start. We did have some recommendations in our
testimony and would love to sit down with you.
Senator Lankford. I appreciate the recommendations as well.
There were a lot of technical aspects. What I like about your
recommendations is you are thinking through implementation,
that when we implement it, these are the challenges we are
going to have, so we actually have to get this stuff fixed. To
me, that helps us make sure we actually get this done and at
the very last minute, there is not a pushback to say it will
not work because of this.
The input you gave today plus any other input you have does
nothing but help us to be able to get the bill right. It
improves our chances that at the end everyone is going to say
it has been looked over by everyone. We think this is going to
be effective at the end of it.
The GAO, as you know, has listed Indian education on their
high risk list. Give me some background now on what is
happening behind the scenes to be able to get it off the list
and where you are trying to prioritize?
Mr. Dearman. As I stated and as I testified the last time I
was here, that has become a priority of ours, not only in BIE
but in Indian Affairs. We have created committees and have been
meeting to address the GAO findings. We actually have a meeting
Monday with GAO because, as we said in the testimony, it is a
road map to make us better. We need to be sitting at the table
with them to improve our system. It is still a priority.
Senator Lankford. It is a significant priority. It is tough
for the first time for GAO to be able to look at. They will
stay on it and evaluate progress which is helpful and what we
asked GAO to do to be able to help us in that journey.
They key things they will want to see and we will want to
see is progress, to say this has been identified and here is
the clear problem. Here are the five steps it will take to be
able to solve this. We are working on step 1 right now of the
five.
If you can help us with that, within 15 years, we can get a
turnaround. I would love to way it is within 15 months. We all
know it is not going to be 15 months. There are significant
issues.
If you can help us identify here what is the problem, there
is the place we want to go, here are the five steps to get
there, that will help GAO in the process and their oversight
and that will help us as well. Quite frankly, it will help a
lot of Native American students.
Mr. Dearman. We would be happy to provide you with an
update of where we are since the last testimony.
Senator Lankford. That would be terrific. I do not want to
take you off task of actually resolving it, but as you have
updates, we would love to be able to get them as well.
Mr. Dearman. Okay.
Senator Lankford. Ms. Mann, thanks for being here as well
and for the work you have done.
Are there other ways to reform Johnson-O'Malley you would
recommend that are not included in this bill that you would
specifically recommend to us?
Ms. Mann. Thank you, Senator.
We have reviewed this bill over and over. I think all the
suggestions we have in here are what we think is going to help
the program.
We hope to have a working group afterwards with NIEA, NCAI
and NEA, TEDNA, several of those groups, as well as the BIE, to
look at Federal regulations and the program in general to make
sure we are doing everything we can to get it restarted pretty
much so that we have regular counts, and that we know how the
funding formulas are going to turn out. There are several
different things we would like to do.
By doing it with this group, we feel we will hit most of
Indian Country throughout these working meetings.
Senator Lankford. Terrific. Any recommendations you can get
back to me from those conversations would be appreciated very
much. That insight filtered to myself, Senators Heitkamp,
Udall, Daines or any of us working on this bill all the time,
we would be glad to be able to receive that.
Thank you, Mr. Chairman.
The Chairman. Senator Heitkamp.
Senator Heitkamp. Thank you, Mr. Chairman.
Mr. Dearman, you are the person sitting in the chair
representing years and years and years of problems,
programmatic problems. It is really hard to get a level of
accountability on this side because to us it seems to be unfair
to put this back on you.
Can you tell me, in your judgment, what is the percentage
high school graduation rate of Native American children?
Mr. Dearman. At this time, Senator Heitkamp, I really do
not have that information but I can tell you we are working
hard to get that because BIE needs to be a data-driven,
decision-making organization based on our student data.
Senator Heitkamp. What is the average adverse childhood
experience of Native American children? We do not know, do we?
We have not calibrated exact numbers on childhood trauma and
what that experience looks like for Native children, right?
Mr. Dearman. We have started looking at our data with that,
again, really looking at our system of where this data has been
recorded, and if it has been recorded. We are starting to
address that.
Senator Heitkamp. What is the rate of asthma and
respiratory problems because of environmental conditions,
including black mold, in Native American students' homes?
Mr. Dearman. We do not have that data.
Senator Heitkamp. What is the rate of incarceration of
Native American students either in juvenile detention
facilities, Federal facilities, if in fact the activity is
undertaken, or in State facilities?
Mr. Dearman. Senator Heitkamp, we would love to work with
you on priorities and things you feel we need to be looking at
as well.
Senator Heitkamp. I want to make a point about Senator
Franken's comments. We began this process in our caucus because
our frustration is, we hear the concerns and we hear the
problems.
I am not suggesting that you are not sympathetic or even
appalled by what we know instinctively, but not statistically,
about the conditions of Native American students in this
country. It is extraordinarily hard without data to drive any
kind of resource allocation or resource decision-making or
innovation. As a result, we end up with this incredible lack of
coordination and lack of real basic strategy on changing
outcomes.
It is the reason why Senator Murkowski and I introduced the
Commission on the Status of Native American Children. We are in
the process of trying to get that commission established. It
has been funded. It is a matter of getting it up and working.
We need your help in these counts. We cannot take the
excuse that we are trying anymore. We have to know what they
are because I think eventually when we come down with true
data, we, in this country, should be ashamed of the conditions
we have allowed Native American students to experience in their
physical plant, their educational attainment, their vocabulary
when they come in, the lack of support, and the lack of
technology.
It is all there but yet we expect different outcomes. We
are not going to get that if we do not know what the count is
and what we need to do. It is not just failure in Indian
schools. It is failure in schools in Grand Forks, North Dakota,
Fargo, North Dakota, Minot, North Dakota, and Bismarck, North
Dakota. You will see higher rates of Title I students that are
Native American students in those schools. You would agree,
right?
The Commission on Civil Rights, in the 1990s, I think did
an actual report that looked at over representation of Native
American students in special education programs.
There is an urgency to this because we need data and we
need this count. We cannot let this opportunity pass. We
decided to give everybody the benefit of the doubt, press the
reset button and start counting.
Start working with Ms. Mann to make sure that you get the
count and make sure she is getting the resources. You cannot
get resources without knowing where to deploy them and where
the count is.
This may seem like a bean-counting technical bill but it is
the foundational piece for change for Native American students.
We are committed here on this Committee and we are committed to
expanding our knowledge among our colleagues to continue to
build more support but we need the institutions at the level of
administration to work with us to get those numbers.
I want to thank you for coming and letting me vent a little
bit about where these problems are. Just know, I am not letting
go of this. I do not think James is going to let go. We are not
going to let go of this. We are going to be a dog with the
bone.
There is going to be accountability and eventually, we are
going to have to call out people when they are not performing.
Good luck. Let us know. Thank you for your support of the
legislation. I think the invitation that Senator Lankford just
gave both of you to rethink whether this is good enough or is
there more is a good one.
We are committed to working to get this over to the other
side. We have great partnerships on the other side. We should
have been able to do it last Congress but did not. We are going
to get it done this Congress but it had better be right.
It had better be complied with and we had better have
answers in two years on how many Native American students there
are and what are the educational challenges of those students.
Thank you, Mr. Chairman.
The Chairman. Senator Cortez Masto, did you have other
questions?
Senator Cortez Masto. No, other than, Mr. Dearman, are you
sure you want this new job?
Let me just say this. We vented and we have frustrations. I
would imagine you do as well. I agree with my colleagues that
whatever we can do to assist you, let us know. Our goal, I am
sure, is the same as yours. I would imagine you have similar
frustrations with what you are trying to do and achieve to the
benefit of Native American communities. Please do not hesitate
to reach out.
Thank you.
The Chairman. With that, if there are no more questions
today, I want to remind members that they may submit follow-up
questions for the record. The hearing record will be open for
two weeks.
Thank you again to our witnesses. We appreciate you being
here.
I also want to take a moment to say thank you to Amanda
Kelly, who served as Clerk of this Committee not once, but
twice. I wish her the best of luck in her new role at the Ag
Committee where we will be seeing her, so you cannot escape
because we are both on the Ag Committee as well.
Thanks to our witnesses and to the Senators.
We are adjourned.
[Whereupon, at 3:43 p.m., the Committee was adjourned.]
A P P E N D I X
Prepared Statement of Hon. Russell Begaye, President, Navajo Nation
As President of the Navajo Nation, I am submitting the following
written testimony to the Senate Committee on Indian Affairs (SCIA) in
response to the July 12, 2017 legislative hearing on the Senate Bill
943 ``Johnson-O'Malley Supplemental Indian Education Program
Modernization Act.''
Background
The Navajo Nation is the largest land based Indian tribe in the
United States spanning over 27,000 square miles across three states:
Arizona, New Mexico, and Utah. We have over 300,000 enrolled tribal
members, with nearly 180,000 members living on the Navajo Nation.
The Navajo Nation has been a proactive stakeholder in the education
of our children. Through the Navajo Sovereignty in Education Act of
2005, the Department of Dine Education (DODE) and the Navajo Nation
Board of Education (NNBOE) were created ``to promote and foster
lifelong learning for the Navajo people, and to protect the culture
integrity and sovereignty of the Nation.'' Currently, the Navajo Nation
contracts with the Bureau of Indian Education (BIE) to provide Johnson
O'Malley (JOM) services through 27 subcontracts serving over 41,000
students annually.
The Johnson O'Malley (JOM) program has proven to be an effective
and essential program for Navajo students attending public school and
contributes to the Nation's educational goals ``to protect the
culture'' of the Navajo Nation. During the 2014-2015 School Year, JOM
funding provided for a variety of culturally based programs including
Navajo language classes, Navajo Knowledge Bowls, Bilingual Showcase,
and Navajo Spelling.
Concerns
The Navajo Nation is greatly concerned with the poor administration
and technical assistance provided by the BIE in regards to the JOM
program. As discussed during the July 12, 2017 hearing, an accurate
student count is critical for JOM program administration, budget
justification, and the delivery of student services. Since BIE has
struggled to effectively update the student count report, tribes and
students have been receiving funding according to outdated students
count report numbers from 1995. The JOM program has been underfunded
for years, forcing JOM programs to operate on meager budgets.
Current Student Eligibility
During the 114th Congress, Senator Heitkamp introduced a similar
bill (S. 2842) to address the outdated JOM student count. Last year,
during our initial review of S. 2842, the Navajo Nation Washington
Office (NNWO) requested clarification from BIE regarding the student
eligibility definition which states:
``Indian students, from age 3 years through grade(s) 12, except
those who are enrolled in Bureau or sectarian operated schools,
shall be eligible for benefits provided by a contract pursuant
to this part if they are 1/4 or more degree Indian blood and
recognized by the Secretary as being eligible for Bureau
services.'' (25 CFR 273.12)
Despite the regulatory definition, BIE uses various versions of the
eligibility definition. Listed below, with emphasis, are several
examples of BIE's use of varying definitions:
``Eligible American Indian and Alaska Native students are
enrolled members of a federally recognized tribe or at least
one-fourth or more degree of Indian blood descendant of a
member of a federally recognized Indian tribal government
eligible for services from the Bureau.'' (BIE website)
``American Indians age 3 through grade 12 who are enrolled in
public schools are eligible if they are at least one fourth
degree of Indian blood and recognized by the Secretary of
Interior as eligible for BIE services.'' (Dear Tribal Leader
Letter, July 24, 2014)
``American Indians age 3 through grade 12 who are enrolled in
public schools are eligible if they are a member of a tribe or
at least one fourth degree of Indian blood and recognized by
the Secretary of Interior as eligible for BIE services.'' (Dear
Tribal Leader Letter, August 19, 2014)
``American Indians age 3 through grade(s) 12 who are enrolled
in public schools are eligible if they are either a member of a
tribe or at least one fourth degree of Indian blood and also
recognized by the Secretary of Interior as eligible for BIE
services.'' (Dear Tribal Leader Letter, December 2, 2014)
Suggestions for Modernization of Student Eligibility Definition
The Navajo Nation supports the overall goal of providing clarity
within the JOM program, especially in regards to student eligibility.
However, the proposed legislation directs DOI to conduct an initial
determination of eligible students within existing contracts using
multiple sources of data. We are concerned that using the various data
sources with varying definitions of ``American Indian/Alaska Native''
may result in an inflated number of eligible students, while the future
definition of student eligibility will not be finalized until
rulemaking is conducted and may not align with data source definitions.
To avoid potential duplicative actions, we suggest that the rulemaking
be conducted prior to the initial determination reports for existing
contracting parties and new applicants.
The use of different eligibility definitions is not only
problematic in conducting student counts, but it could also limit
services to otherwise potentially eligible students. The Navajo Nation
currently administers the JOM program through 27 subcontracts using the
regulatory student eligibility definition:
``1/4 or more degree Indian blood and recognized by the
Secretary as being eligible for Bureau services''
For the Navajo Nation, the use of a less stringent definition, such
as the definition used within the Elementary and Secondary Education
Act (20 USC 7491), would result in a significantly higher number of
eligible students.
More Students, More Funding
An updated student count and revision of the student eligibility
definition will undoubtedly result in an increased number of eligible
students. However, without an increase in funding for the JOM program
for newly identified students, the efforts of Congress, the Bureau of
Indian Education, and Tribes will be misspent. We strongly urge
Congress to properly reinvest in the JOM program to fully serve AI/AN
students attending public school.
Conclusion
In conclusion, we would like to thank the Senate Committee on
Indian Affairs for the opportunity to submit testimony and feedback on
S. 943. As it is the goal of the Navajo Nation to ensure delivery of
quality education for our Navajo students, we appreciate Senators
Heitkamp, Daines, and Lankford's efforts to improve Indian education
through the Johnson-O'Malley program.
______
Prepared Statement of Hon. Donald C. Gentry, Chairman, Klamath Tribes
Chairman Hoeven, Vice Chairman Udall and members of the Senate
Committee on Indian Affairs. My name is Donald C. Gentry. I am the
Chairman of the Klamath Tribes. This testimony is submitted in support
of S. 1223 which will repeal The Klamath Tribe: Judgment Fund Act of
1965, Pub. L. 89-224 (The Judgment Fund Act). The Judgment Fund Act
seriously compromises the Klamath Tribes sovereignty and mandates
distribution of tribal funds in a manner detrimental to the best
interests of the Tribes and its members. It is the last remaining
vestige of the disastrous and ill-considered legislation that in 1954
terminated the government-to-government relationship between the
Klamath Tribes and the United States. That relationship was restored on
Aug. 27, 1986 by Pub. L. 99-398, by the Klamath Tribe: Restoration of
Federal Supervision Act.
I. The Historical Context of the Judgment Fund Act
The Klamath and Modoc Tribes and the Yahooskin Band of Snake
Indians (now Klamath Tribes) had their government-to-government status
as a recognized Tribe terminated in 1954 by the Klamath Tribe:
Termination of Federal Supervision Act, (Pub. L. 86-40; 68 Stat. 718).
This unilateral act of the United States Congress was taken without the
consent or support of the Klamath Tribal Government. The purpose of the
Act was to terminate Federal supervision over the trust and restricted
property of the Tribe, and to remove from individual members their
status as members of a ``recognized'' tribe. As a result, the lands and
other tribal property were monetized and distributed to individual
members of the Klamath Tribes. In order to accomplish this a ``final
roll'' of the members of the Tribe as of midnight August 13, 1954 was
compiled (the 1954 enrollees). There were 2133 members on that roll.
The more complicated process of determining which of the members were
the so-called ``withdrawn members'' and which were the so-called
``remaining members'' isn't germane to the consideration of S. 1223.
In addition to the reservation property of over 850,000 acres of
prime timber and ranch lands, the Tribe also had pending before the now
defunct Indian Claims Commission (ICC) lawsuits against the United
States seeking compensation for the mismanagement or misappropriation
of tribal assets; primarily timber and ranch lands. In the 1950's, and
until 1965, claims before the ICC and later the Court of Federal Claims
which resulted in judgments against the United States were not paid to
the Klamath Tribe until authorized and appropriated by Congress. As a
result, Congress determined that it would be more efficient to adopt a
``Judgment Fund Distribution Act'' that would allow for any funds
secured as a result of judgment against the United States and deposited
in the United States Treasury to the credit of the Klamath Tribe to be
distributed in accord with the specific requirements of that Act. Thus,
Congress adopted the Judgment Fund Act on October 1, 1965.
The Judgment Fund Act provided for distribution of funds
appropriated in satisfaction of judgments obtained by the Tribes, and
all other funds deposited in the United States Treasury to the credit
of the Klamath Tribes, to the 2133 people on the Final Roll. (Sec 4 of
Pub. L. 89-224). All funds deposited in the Treasury regardless of the
source (e.g., payments for rights-of-way, trespass damages, or other
revenues, together with any interest accrued) were included in the
application of the Act.
II. The Problem With the Judgment Fund Act
The Judgment Fund Act's limitation on distribution of funds to
persons on the ``final roll'', or to their heirs or legatees began to
have unintended and deleterious results. As time went on, the 2133
members on the final roll began to pass on. Under the terms of the
Judgment Fund Act, their share passed to their heirs or legatees. (Sec
2 of Pub. L. 89-224). Sometimes surviving spouses, sometimes children
or other surviving relatives. Many of the people to whom shares passed
were not Klamath tribal members, or even of Native American descent. As
a result, distribution pursuant to the Judgement Fund Act has four
impacts detrimental to the Tribes.
1. The Tribes have no ability to determine how tribal funds
can be allocated to members or other tribal priorities. Indeed,
many tribal members are ineligible to receive any part of the
distribution of such funds, and the Tribes cannot designate any
funds for general tribal benefit or development.
2. Because of inter-marriage with non-members the distribution
of funds under the Act result in distribution of significant
amounts of tribal funds to non-Indians and other non-members of
the Tribes.
3. Distribution to the living 1954 enrollees, or their current
heirs or legatees, requires a complicated process of
identification and certification of each individual,
necessitating an extraordinarily lengthy and extremely
expensive process. The costs for distribution are deducted from
the available funds, thus significantly reducing funds
available for distribution.
4. Should there be funds in the account which the Secretary of
the Interior determines are insufficient to justify further
distribution--which could be substantial given the
extraordinary cost of distribution--those funds must under the
Act be returned to the Treasury of the United States; not held
for the benefit of the Tribes.
The Judgment Fund Act did not contemplate the August 27, 1986
Klamath Tribe: Restoration of Federal Supervision Act, Pub. L. 99-398,
which restored the government-to-government relationship between the
Tribes and the United States. Restoration in part reinitiated the
enrollment of tribal members born after the compilation of the 1954
Final Roll. It also reinvigorated the Klamath Tribes' Government which
manages the affairs of the Tribes. Despite the restoration of many
tribal powers the Judgment Fund Act disallows any tribal determination
over the distribution of funds in the United States Treasury for the
benefit of the Tribes or any members enrolled after August 13, 1954.
III. The Effect Of Repeal
Repeal of the Judgment Fund Act would resolve these concerns and
allow the Tribes to determine the best use of funds presently in trust
accounts for the benefit of the Klamath Tribes. In the absence of the
Judgment Fund Act future distributions of funds appropriated in
satisfaction of judgments from the United States Court of Federal
Claims--there are no further claims before the ICC--would be made
pursuant to the Indian Tribal Distribution of Judgment Funds Use and
Distribution Act of October 19, 1973, 25 U.S.C. 1401 (87 Stat. 466).
That Act by its terms applies to any ``Indian Tribe'', which includes
the Klamath Tribes. It is presently unavailable to the Klamath Tribes
because the 1965 Judgment Fund Act preempts its application.
IV. Conclusion
The repeal of this last vestige of the disastrous and ill-
considered Termination Act of 1954 would be a welcome and necessary
next step in respecting the sovereignty of the Tribes and returning the
Klamath people to their former robust self-sufficiency.
______
Joint Prepared Statement of James Parrish, Executive Director of
Education and Shane Haddock, Director of JOM. Choctaw Nation of
Oklahoma
Halito, Chairman Hoeven and members of the Senate Committee on
Indian Affairs:
Thank you for holding a hearing to consider S. 943, a bill that
instructs the U.S. Department of Interior to conduct an accurate count
of Native American students in an effort to update formula allocations
under the Johnson-O'Malley Act (JOM). JOM programming is vital to the
continuation and success of public school systems within the Choctaw
Nation's treaty territory. An updated student count is long overdue.
We applaud the Senate's leadership in this endeavor and
wholeheartedly offer our support for passage of S. 943. The Choctaw
Nation of Oklahoma welcomes this opportunity from your committee to
provide comments on the importance of JOM student count and programming
for Choctaw and native students.
Currently, there are 85 public school districts within the Choctaw
Nation's treaty territory in southeastern Oklahoma. Of these school
districts, 74 have JOM programs, with 12,885 verified JOM students.
While the vast majority of these students are Choctaw citizens, 3,161
students are from approximately 80 other federally recognized tribal
nations. Nonetheless, the Choctaw Nation supports all of these native
students through our JOM programming.
Our school districts especially appreciate the flexibility of JOM
programming and utilize this funding in many ways. One primary use is
providing school supplies to Native American students. But this
hallmark federal program is much more than just school supplies. JOM
makes a difference for Native American students by providing a funding
source that enhances Native American students' educational
opportunities and fills in gaps that school districts cannot fill
themselves. For example, JOM funding has supported a number of efforts
ranging from increasing library media to providing supplemental teacher
salaries, motivational awards, and other incentives. For some students,
JOM funds provide a way to take ACT and SAT tests, help cover the
expense of attending college and career events, and pay for dues and
fees attached to almost all student extracurricular activities.
One especially important use of JOM funding is connecting native
youth to their culture. Choctaw Nation utilizes JOM funds to cover the
cost of Choctaw language tutors and teachers, as well as providing
technology to broadcast language classes into classrooms around our
expansive treaty territory. Choctaw Nation also uses JOM funding to
cover the cost of providing cultural education events and activities
such as guest speakers, tribal dancers, traditional crafts, and even
traditional meals. These items may not seem like much to some, but for
many Native American families in Oklahoma's Indian Country, JOM is the
only way their children will get a chance at these opportunities.
When the student count was frozen during the 1994-1995 school year,
Choctaw Nation's student count was 7,395. We have grown at an average
of 275 students per year for the past 20 years with no additional
funding to service these students. Before the student count freeze, per
pupil funding was $125. Now it is only at $65. Due to state budget cuts
and increasing demands on public schools' funding, JOM funding is
needed now more than ever. As public schools in Oklahoma grasp onto
every dollar they have, programs related to STEM, art, athletics, and
agriculture are being discontinued for school districts to just stay
within their annual budget as they brace for more state funding cuts.
Adjusting the student count is an important step to improving JOM,
but it is just the first step. With your leadership, Congress can
implement improvements to go even beyond adjusting the student count by
restoring JOM funding to $125 per pupil. An increase in JOM funding
will allow Native American students to thrive in public schools through
their partnerships with Choctaw Nation and other tribal nations. The
JOM Program has a mission to meet educational needs of Native American
students as they develop into successful, healthy, self-sufficient men
and women. The passage of S. 943 would be an important step in
continuing this mission.
The Choctaw Nation once again is grateful for this opportunity
provided by Chairman Hoeven and the U.S. Senate Committee on Indian
Affairs to provide our thoughts on the importance of S. 943 and how we
utilize JOM programming in partnerships with public school districts to
serve our youth. We fully support the passage of S. 943 and thank you
for your leadership and support of Native American education. Please
reach out to the Choctaw Nation Department of Education if we can
provide any additional information as you consider this legislation.
______
Dear Chairman Hoeven and Vice Chairman Udall:
On behalf of the Leech Lake Band of Ojibwe, I am writing to express
our support for the authorization of the Johnson-O'Malley Supplemental
Indian Education Program Modernization Act (S. 943). This legislative
effort builds upon Congress' focus on supporting Native education in
the 21st century. S. 943 is a step in the right direction to honor the
fiduciary trust obligation the federal government has with tribes to
provide parity in access and equal resources to Native education.
The Johnson-O'Malley (JOM) program is utilized to meet specialized
and unique educational needs of Indian students attending public and
some tribal schools through the use of supplemental education programs.
Such supplemental programs are designed at the local level under the
purview of a local Indian Education Committee. Eligible JOM contract
applicants are states, school districts, tribes, and tribal
organizations.
The Leech Lake Band of Ojibwe is particularly supportive of the
push to update the JOM eligible student count and to then move towards
reconciling the per student allocation and funding afforded the
program. For nearly 25 years and through several Administrations, the
Department of Interior and BIE have not attempted to finalize a count
of the numbers of Indian students currently using or the total pool of
eligible Indian students for JOM services. Also over this period, the
JOM program has been all but frozen: no updated student count, no
update of the program rules, and no real increase in funding to meet
the real-time growth in the eligible population as noted from data
collected for other Indian education activities and the 2010 Census.
After 25 years of waiting for any action by Congress or the
Administration to rectify the unacceptable conditions that the JOM
program must exist under today, we are encouraged by the Committee's
pending approval of this legislation. We are hopeful that this
Committee and the Senate will take quick action on this bill so that
the House would have the opportunity to also quickly act on the bill.
On behalf of the over 1.0 million Indian children eligible for JOM,
the Leech Lake Band of Ojibwe is delighted by the Committee's speedy
consideration of S. 943, and would urge its immediate approval.
Respectfully,
Hon. Faron Jackson, Sr., Chairman, Leech Lake Band of
Ojibwe
______
Dear Senator Lankford,
On behalf of the largest population of Native American students in
the nation, I am writing to express the Oklahoma State Department of
Education's support for the Johnson-O'Malley Supplemental Indian
Education Program Modernization Act. This update will allow for more
accurate counts of Johnson-O'Malley eligible students, ensuring greater
access to vital programs and supports for our Native American youth.
Oklahoma's public schools serve over 130,000 Native American
students, the largest number of Native students in any state. Oklahoma
is home to 39 federally recognized tribes, and there are 400 Title VII
Indian Education programs operating in our public schools. While
Oklahoma serves more Native American students than any other state, the
Bureau of Indian Education operates only one school in Oklahoma, and
the vast majority of Native students participate in the public school
system. Nowhere is there a greater need for services to support the
success of Native American students attending public schools.
As you know, an updated annual count of students eligible for the
Johnson-O'Malley Program has not been conducted since fiscal year 1995,
and that count--frozen in time over twenty years ago--is still used as
a measure of eligible students although it does not reflect two decades
of population growth. While we know that the number of eligible
students has grown since 1995, funding has held static due in part to
the frozen count, and this means that the value of the supports
available to each participating student has actually declined. The
proposed Modernization Act would equip the Johnson-O'Malley Program to
better serve Native American students by providing for an up-to-date
count of those eligible for the program.
While we remain mindful of the particular challenges that Native
American students face in completing an education, Oklahoma's public
school graduation rate for Native American students is consistent with
the state's overall rate. At nearly 83 percent, our Native American
students' graduation rate in 2014 well exceeded the nationwide rate of
67 percent for Native students. Oklahoma school districts work hard to
meet the needs of our Native American students, and the Johnson-
O'Malley Program provides much-needed support to participating
districts and tribal nations.
The Oklahoma State Department of Education is committed to
providing a high-quality education to all students, and recognizes our
special role in educating the largest Native American student body in
the country. We offer our strongest endorsement for the proposed update
to the Johnson-O'Malley Act, which will help secure appropriate support
for the thousands of eligible Native American students attending
Oklahoma's public schools.
Joy Hofmeister,
State Superintendent of Public Instruction.
______
Dear Senator Heitkamp:
On behalf of the National Indian Education Association (NIEA), the
only national organization advocating for improved educational
opportunities to enable Native students to thrive in the classroom and
beyond, I write to support Senate Bill 943, the Johnson-O'Malley
Supplemental Indian Education Program Modernization Act. Through this
legislation, the Department of Interior (DOI) would update student
counts to ensure that Native students are receiving critical services
through the Johnson-O'Malley Program.
The Federal Government has a constitutional and legal trust
responsibility to support equitable, excellent, culture-based
educational options for Native students. Despite many government-to-
government agreements, ongoing budget cuts have led to limited
educational options for Native students. To fulfill its unique
constitutional duty, Congress must ensure that Native children have
access to the educational resources that they deserve.
NIEA thanks you for your leadership on updating the Native student
counts for programs authorized under the Johnson-O'Malley Program.
Reauthorization should include language that strengthens tribal
sovereignty in Native language programs and provides Native students
fair and equal access to learning their culture and languages.
Congress enacted the Johnson-O'Malley Act of 1934 in to address
unique academic and cultural needs of Native students. The Johnson-
O'Malley Program authorizes funding for contracts to tribal
organizations, school districts, and partner organizations, as approved
by the Bureau of Indian Education (BIE), to provide critical resources
to support excellent culture-based education for Native students in
public schools.
Inaccurate eligible student counts result in large numbers of
unserved students through Johnson O'Malley. According to the 2010
Census, there were 798,486 qualified American Indian and Alaska Native
students. However, the most recent 1995 student count of Johnson-
O'Malley resulted in 271,884 eligible students. As introduced, S. 943
would update the 1995 Johnson-O'Malley student count to include the 66
percent of eligible Native students that remain underserved by the
Johnson-O'Malley program.
Thank you for your efforts to provide Native students access to
excellent and culture based education options. NIEA urges Congress to
fulfill the federal trust responsibility by passing the Johnson-
O'Malley Supplemental Indian Education Program Modernization Act: we
support your work on this legislation to provide brighter futures for
Native students across the United States.
Sincerely,
Yatibaey Evans
President, National Indian Education Association (NIEA)
______
United Tribes of North Dakota
Dear Senator Heitkamp:
Our Board of Directors for United Tribes of North Dakota, the
unincorporated association of all of the federally recognized Tribes in
North Dakota, has recently passed this letter in support of the effort
to modernize and reauthorize legislation establishing the Johnson
O'Malley (JOM) program. This program is often overlooked and subject to
being cut in the appropriations process, but it is a program that has
assisted thousands of children and their parents from pre-school
through high school who are enrolled in public schools.
JOM is a program allowing school administrators to provide some
benefits to Native American children whose families may not be able to
provide basic school supplies to their children, and that can help
parents be a more active part of their children's school activities by
being part of an Indian Education Committee associated with the schools
where their children attend classes. At United Tribes Technical College
(UTTC) over the years, JOM funds have provided children with school
supplies, allowed the establishment of an all-Indian school board for
the elementary school at UTTC, and more recently assisted the pre-
school to have special programs recognizing the accomplishments of the
preschoolers. These kinds of activities help get parents involved in
the education of their children, something that has been shown to be
vital to future success of American Indians involved in education.
We urge you to assist all of the American Indians in the United
States and be a co-sponsor of the legislation that will modernize the
JOM program and that will actually acknowledge the numbers of American
Indian children that will benefit from the program. I am certain that
the national JOM association representatives, and our Tribal leaders
from North Dakota, will be speaking to you about this issue, have
further ideas and possibly a draft of the legislation, and will work
with you as the legislation goes forward.
We thank you again for your continued leadership in promoting the
interests of American Indian children. I look forward to seeing you
soon on this and other issues.
Sincerely,
Dave Flute,
Chairman of the Board.
______
Department of Public Instruction
Dear Senator Heitkamp:
On behalf of the more than 12,000 Native American students who are
part of North Dakota's five federally recognized American Indian
tribes, I am writing to offer the North Dakota Department of Public
Instruction's enthusiastic support for S. 943, the ``Johnson-O'Malley
Supplemental Indian Education Program Modernization Act.''
During the 2016-17 school year, North Dakota had 12,272 Native
American students, or 10.4 percent of our total number of students in
grades kindergarten through 12. Of those 12,272 Native students,
10,262, or 83.6 percent, attended North Dakota public schools.
Johnson-O'Malley funds are distributed to federally recognized
tribes and state public school districts to bolster vitally important
programs and support for our Native students. These funds have been
used to pay for tutoring, afterschool programs, school supplies, and
materials for culturally relevant instruction.
The Johnson-O'Malley Act awards supplemental assistance to benefit
eligible Native students. This is an important reason why the Act
urgently needs to be rewritten. The Bureau of Indian Affairs now uses a
1995 count of JOM eligibles to determine money distributions. The 1995
count underestimates the number of eligible students by up to two-
thirds, and the Bureau of Indian Education has been unable to provide a
suitable updated number.
S. 943 would help to remedy this problem. Its language would
authorize a more accurate count of the number of Native students
eligible for Johnson-O'Malley benefits. It would empower the Interior
Secretary to identify potential sources of JOM funding, and encourage
all eligible students to take part in the program. It would update the
program's funding formula and eligibility definitions, and require a
yearly accountability report to Congress.
The Johnson-O'Malley Supplemental Indian Education Program
Modernization Act would buttress the North Dakota Department of Public
Instruction's commitment to providing a high-quality education to all
students, including the thousands of Native American students in our
public schools. Thank you for sponsoring this important legislation.
Sincerely,
Kirsten Baesler,
Superintendent of Public Instruction.
______
National Congress of American Indians
Dear Chairman Hoeven and Vice-Chairman Udall:
On behalf of the National Congress of American Indians (NCAI), the
oldest and largest organization of American Indian and Alaska Native
tribal governments, we write in support of the Johnson-O'Malley
Supplemental Indian Education Program Modernization Act (S. 943). The
legislation directs the Secretary of Department of Education to
determine the number of eligible Indian students, how to reconcile and
the use the data of the student count, and to reform the funding to
conduct the Indian student count. We understand that the Committee will
be considering it in your hearing tomorrow and we urge the Committee to
support this legislation. In 2013, NCAI membership passed a resolution
in support of the program, entitled #REN-13-013, ``Supporting Use of
Accurate Student Numbers to Create a Sustainable Johnson O'Malley
Supplemental Indian Education Program''.
S. 943, the Johnson-O'Malley Supplemental Indian Education Program
Modernization Act would modernize the ability of accounting for Indian
students attending Public Schools. The funding of the Johnson-O'Malley
Program (JOM) is determined by the certified student count. However the
certified student count has been stationary at 1995 levels and has not
accounted for the significant increase in the past 20 years of Indian
students that attend Public Schools. NCAI understands the importance of
ensuring the accuracy of student count of Indian students, and supports
the use of the accurate annual student counts so that JOM programs
continue to foster and provide these important culturally sensitive
education programs. The JOM programs are critical to the development of
Indian students in their academics, and provide students the tools
succeed in post-secondary education.
Native students count, and this legislation would ensure that the
Nation's education policy reflects that.
Sincerely,
Jacqueline Pata,
Executive Director.
______
Tribal Education Departments National Assembly (TEDNA)
Dear Chairman Hoeven and Vice Chairman Udall:
The Tribal Education Departments National Assembly (TEDNA) writes
in support of S. 943, the Johnson-O'Malley Supplemental Indian
Education Program Modernization Act. TEDNA is the national membership
organization for the Education Departments, Divisions and Agencies of
American Indian and Alaska Native (AI/AN) Tribes. Virtually all of
TEDNA's members and the tribal students that they serve are assisted by
or eligible for assistance from Johnson-O'Malley (JOM) programs around
the country.
For over 80 years, Congress has provided JOM funding for hundreds
of thousands of AI/AN students in K-12 schools. Today, JOM is a well-
established supplemental program intended to meet eligible AI/AN
students' specialized and unique educational needs. While JOM programs,
services, and activities generally are defined by federal law and
regulation to include such things as academic support, teacher support,
transportation, and school supplies, they also are tailorable to meet
the specific needs of students, families and communities at the local
level.
JOM funds flow from the U.S. Department of the Interior annual
appropriations to states, public school districts, tribes and tribal
organizations, and some tribal schools. Like many federal education
programs, JOM funding is based on a set formula, which includes a
determination of eligible students. But unlike other federal education
programs, the student count for JOM funding has been frozen for
decades--the Bureau of Indian Affairs last determined eligible JOM
students in 1995. The over-20-year-old count of 278,000 students is
well under half of the K-12 AI/AN student population of almost 800,000
as reflected in the 2010 Census. TEDNA knows of no other federal
education program that has endured such disparity and inequity
primarily due to outdated and inaccurate basic information maintained
by a federal agency.
Administrative and other efforts to address this unacceptable
situation have failed. S. 943 would correct the JOM program's
incongruence and injustice by ``directing the Secretary of the Interior
to conduct an accurate comprehensive student count for the purpose of
calculating formula allocations for [JOM] programs.'' TEDNA
unequivocally supports immediate passage of S. 943 as the legislative
solution to the full participation of AI/AN students in the schools
they attend.
Very Respectfully,
Gloria Sly,
President.
______
Muscogee (Creek) Nation
Dear Chairman Hoeven and Vice Chairman Udall;
On behalf of the Muscogee (Creek) Nation, I am writing to express
our support for the authorization of the Johnson-O'Malley Supplemental
Indian Education Program Modernization Act (S. 943). This legislative
effort builds upon Congress' focus on supporting Native education in
the 21st century. S. 943 is a step in the right direction to honor the
fiduciary trust obligation the Federal Government has with tribes to
provide parity in access and equal resources to Native education.
The Johnson-O'Malley (JOM) program is utilized to meet specialized
and unique educational needs of Indian students attending public and
some tribal schools through the use of supplemental education programs.
Such supplemental programs are designed at the local level under the
purview of a local Indian Education Committee. Eligible JOM contract
applicants are states, school districts, tribes, and tribal
organizations.
The Muscogee (Creek) Nation JOM program office provides services to
the following:
11 Oklahoma Counties
45 School Districts (of which one program is community based)
17,363 Students
103 Federally Recognized Tribes
As a nation we strive to provide a comprehensive program that
encumbers academic education. cultural aWareness and community
involvement. Technical assistance is provided to JOM eligible school
sites to facilitate parental involvement as well as a partnership that
contributes to the academic success of all Native American students.
The Muscogee (Creek) Nation is particularly supportive of the
bill's push to determine a new per student allocation. In 1995 when the
program was all but frozen in place, the individual student allocation
was approximately $125.00 per student. However, based on the 278,000
student count used since 1996, the current allocation has dropped to
nearly $43.00 per student at a time when any reasonable measurement of
the true costs of the goods, services, personnel and transportation
costs and types of assistance needed by JOM eligible students would
show a clear need for additional funding.
After 25 years of waiting for any action by Congress or the
Administration to rectify the unacceptable conditions that the JOM
program must exist under today, we are encouraged by the Committee's
pending approval of this legislation. We are hopeful that this
Committee and the Senate will take quick action on this bill so that
the House would have the opportunity to also quickly act on the bill.
On behalf of the over 1.0 million Indian children eligible for JOM,
the Muscogee (Creek) Nation is delighted by the Committee's speedy
consideration of S. 943, and would urge its immediate approval.
Sincerely,
James R. Floyd,
Principal Chief.
______
The Nez Perce Tribe (Tribe)
Dear Chairman Hoeven and Vice Chairman Udall:
The Nez Perce Tribe (Tribe) would like to express its support for
the avthorization of the Johnson-O'Malley Supplemental Indian Education
Program Modernization Act (S. 943). This legislative effort builds upon
Congress' focus on supporting Native education in the 21st century. S.
943 is a step in the right direction toward honoring the fiduciary
trust obligation the Federal Government has with tribes to provide
parity in access and equal resources to Native education.
The Johnson-O'Malley (JOM) program is used to meet specialized and
unique educational needs of Indian students attending public and some
tribal schools through the use of supplemental education programs. Such
supplemental programs are designed at the local level under the purview
of a local Indian Education Committee. Eligible JOM contract applicants
are states, school districts, tribes, and tribal organizations.
The Tribe is particularly supportive of the bill's acknowledgement
that the JOM rules, as reflected in Title 25, Code of Federal
Regulations, are desperately outdated and lacking in the kind of
guidance generally needed by JOM contracting parties. Many of the
needed rule updates are to provisions that have not been reviewed or
amended since the 1970s, or are in areas where courts have rendered
decisions that require JOM rules to be brought into compliance with a
court's findings. S. 943 instructions require the Director of the
Bureau of Indian Education to undertake and complete a rulemaking
process to determine how the regulatory definition of ``eligible Indian
stuaent'' may be revised to clarify eligibility requirements for
contracting parties; determine, as neoessary, how the funding formula
may be clarified and revised to ensure full participation of
contracting parties, provide clarity on the funding process; and
otherwise reconcile and modernize the rules guiding the JOM program.
After 25 years of waiting for any action by Congress or the
Administration to rectify the unacceptable conditions that the JOM
program must exist under today, we are encouraged by the Committee's
pending approval of this legislation. The Tribe is hopeful that this
Committee and the Senate will take quick action on this bill so that
the House would have the opportunity to act quickly on the bill as
well.
On behalf of the over one million Indian children eligible for JOM,
the Nez Perce Tribe is delighted by the Committee's prompt
consideration of S. 943 and would urge its immediate approval.
Sincerely,
Mary Jane Miles,
Chairman.
______
Response to Written Questions Submitted by Hon. Heidi Heitkamp to
Tony Dearman
Questions. Mr. Dearman, is the student count for the Johnson-
O'Malley program used for any other programs? Do you expect that once
BEE has completed an updated, verified student count, that it would be
used for any other purposes? Can you describe the process and number of
staff you have who would be involved in compiling BIE's student count
number for JOM?
Answer. The current 1995 Johnson O'Malley (JOM) student count is
utilized specifically for JOM programmatic funding distribution. As the
Bureau of Indian Education (BIB) works to increase its focus on data
across the organization, it will analyze the possibility of utilizing
JOM data for other purposes, contingent on various programmatic
eligibility requirements.
Regardless, an updated count will help BIE identify need and allow
us to better allocate resources where appropriate.
The BIE acknowledges the need for improved coordination and
outreach for attaining an accurate JOM student count. To that end, the
BIE continues to work to fill the vacant Program Specialist (JOM)
position. The JOM position will work to conduct outreach with tribes,
Native organizations, and contractors in the fall 2017, when schools
are in session, regarding the reconciliation of existing BIE,
Department of Education, and Census Bureau data as well as the future
collection of student count information. In the interim, BIE has
detailed staff to provide outreach and carry out the position's
functions prior to filling the vacancy.
BIE looks forward to working with Members of the Senate Indian
Affairs Committee and key stakeholders to reconcile existing data as
well as implement regular and accurate student counts going forward.
______
Response to Written Questions Submitted by Hon. Heidi Heitkamp to
Carla Mann
Questions. Can you provide a brief description of how the JOM
student count process operated prior to 1995, and how that compared to
the actions BIE undertook in 2012, 2014 and 2016? Would you suggest
that BIE use the same process utilized prior to 1995 to conduct and
prepare the updated JOM student count required by S. 943?
Answer.
JOM Student Count Procedures
The JOM Student count process prior to 1995 was conducted
annually by the Tribes, School Districts and Native Serving
Organizations holding JOM contracts with BIE during the month
of October.
The first full week of October was generally observed as
``JOM Count Week,'' all schools would endeavor to count JOM
students on their highest enrollment day.
Notice of the Annual Student count was published [30-45 days]
in advance of ``count week'' in the Federal Register by BIE.
Instructions detailing the count and reporting processes were
detailed in the Federal Register Notice.
All students were verified eligible for services, by
utilizing individual Certificates of Indian Blood (CIB's).
Once certified, the count numbers were sent to our local BIA,
and the BIA Line Officer at the Regional Bureau of Indian
Affairs.
Each regional BIA office compiled the numbers reported in
their region, and then sent them to the BIA Central office, in
Washington DC.
Post 1996 JOM Student Count Activities
[Note: Despite the ending of formal JOM counts, many tribes still
count the first full week of October, so that they can get updated
numbers and to certify all eligible students.]
FY 2012 Count
The above detailed process was not followed in 2012 in part, because
Congress only directed the BIE ``update'' the student numbers
from 1996.'' BIE did publish a Notice in the Federal Register
in May 2013 calling for all current contractors to report their
current student enrollment but little additional effort was
expended to alert or advertise the announcement of this count.
Sadly, many of the reporting contractors only reported numbers based
on their ``contracted count level'' verses the actual number of
students currently ``eligible for JOM services.'' In the rare
cases where contractors did report a true count of their
enrolled students, there was no effort made to determine if the
current student population being served represented a count of
all the students eligible for services [this was particularly
noted in School districts where new schools have been added
since 1996, and their 1996 contracts only authorized services
in previously approved school sites]. Also, as you might
assume, most school personnel and tribal JOM Directors do not
read the Federal Register, and were not aware of the May 2013
request. In fact, most schools were already out of school or,
preparing for the end of the school year.
FY 2014
In 2014, the language from the Omnibus bill directed BIE to conduct a
``comprehensive count of all eligible JOM students
nationwide''. The BIE was given (in the January 2014 Omnibus
appropriations bill) until 9/30/14 to complete this count. On
July 27 BIE began mailing letters to all Tribal Leaders
requesting that they report their JOM student counts to BIE
Headquarters via form made available only on the BIE website.
Again, this process was directed when school is out of session,
and contractors, other than Tribal Leaders, were not notified.
In some instances, not all Tribal leaders received the letter,
or the information was not received by the JOM offices that are
responsible for the count.
FY 2016
The count directive from the Omnibus bill in 2016, has not yet been
complied with the BIE.
Question. Would NJOMA want to follow the same process that was
followed prior to 1995?
Answer. NJOMA, would say no.
The counts from 2012 and 2014 show that the BIE is not capable of
doing a comprehensive count that identifies the true size of the JOM
``eligible student population'' across the nation. The downsizing of
BIE and other reorganizational activities have had a significantly
negative impact on BIE's data management capabilities. We would also
question BIE's baseline ability to design, construct and conduct the
kind of data collection effort that would bridge the 21 year gap in
collection of any data that would track the growth in Native American
and Alaskan Native populations shown in the broader society. For this
reason, NJOMA is supportive of S.943's intent to direct BIE to utilize
widely accepted population/demographic data to create a new ``model
baseline count of all JOM eligible students.' We believe that once a
new baseline projection and count is accomplished, that appropriate
steps can then be taken to reconcile actual student counts, and further
steps can then be taken to conduct annual counts that would be more
routine for contractors and the BIE.
______
Response to Written Questions Submitted by Hon. Heidi Heitkamp to
Donald R. Wharton
Questions. S. 943 directs the Secretary of the Interior to report
annually to Congress on all contracts performed under JOM. Should we
(Congress) feel confident that the annual reporting provisions in S.
943 for the JOM program are sufficient? If not, what changes would you
recommend? What tools exist in federal law or court decisions to
enforce this provision?
Answer. Thank you for the invitation to respond to the question.
Since S. 943 does not have any provision concerning reporting under JOM
the Klamath Tribes offer no opinion on this issue.
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