[Senate Hearing 114-537]
[From the U.S. Government Publishing Office]
S. Hrg. 114-537
S. 2417, THE TRIBAL VETERANS HEALTH CARE ENHANCEMENT ACT, AND
S. 2842, THE JOHNSON O'MALLEY SUPPLEMENTAL INDIAN EDUCATION
PROGRAM MODERNIZATION ACT
=======================================================================
HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
MAY 11, 2016
__________
Printed for the use of the Committee on Indian Affairs
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COMMITTEE ON INDIAN AFFAIRS
JOHN BARRASSO, Wyoming, Chairman
JON TESTER, Montana, Vice Chairman
JOHN McCAIN, Arizona MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska TOM UDALL, New Mexico
JOHN HOEVEN, North Dakota AL FRANKEN, Minnesota
JAMES LANKFORD, Oklahoma BRIAN SCHATZ, Hawaii
STEVE DAINES, Montana HEIDI HEITKAMP, North Dakota
MIKE CRAPO, Idaho
JERRY MORAN, Kansas
T. Michael Andrews, Majority Staff Director and Chief Counsel
Anthony Walters, Minority Staff Director and Chief Counsel
C O N T E N T S
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Page
Hearing held on May 11, 2016..................................... 1
Statement of Senator Barrasso.................................... 1
Statement of Senator Daines...................................... 6
Statement of Senator Heitkamp.................................... 5
Statement of Senator Lankford.................................... 6
Statement of Senator Tester...................................... 2
Statement of Senator Thune....................................... 3
Witnesses
Black, Michael S., Director, Bureau of Indian Affairs, U.S.
Department of the Interior..................................... 8
Prepared statement........................................... 10
Mann, Carla, President, National Johnsnon-O'malley Association
(NJOMA)........................................................ 15
Prepared statement........................................... 16
Trudell, Hon. Roger, Chairman, Santee Sioux Nation............... 11
Prepared statement........................................... 13
Appendix
Response to Written Questions Submitted to Michael S. Black by:
Hon. Heidi Heitkamp.......................................... 57
Hon. Jon Tester.............................................. 56
Southcentral Foundation (SCF), prepared statement................ 51
United South and Eastern Tribes, Inc., prepared statement........ 52
Whitefoot, Patricia, National Indian Education Assocation, letter
of support..................................................... 53
S. 2417, THE TRIBAL VETERANS HEALTH CARE ENHANCEMENT ACT, AND S. 2842,
THE JOHNSON-O'MALLEY SUPPLEMENTAL
INDIAN EDUCATION PROGRAM MODERNIZATION ACT
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WEDNESDAY, MAY 11, 2016
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 Barrasso,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM WYOMING
The Chairman. Good afternoon. I call this hearing to order.
Today the Committee is going to examine two bills, S. 2417,
the Tribal Veterans Health Care Enhancement Act, and S. 2842,
the Johnson-O'Malley Supplemental Indian Education Program
Modernization Act. These bills address specific concerns
regarding health care and education for American Indian and
Alaska Native communities.
Last December, Senators Thune and Rounds introduced S.
2417, the Tribal Veterans Health Care Enhancement Act. This
bill amends the Indian Health Care Improvement Act. It allows
the Indian Health Service, upon referral, to cover the cost of
co-payments for an American Indian or Alaska Native veteran
receiving medical care or services from the Department of
Veterans Affairs.
As many of us know here, American Indians and Alaska
Natives have served in the armed forces at a greater number per
capita than any other ethnic group. S. 2417 requires the Indian
Health Service and the Department of Veterans Affairs to, if
feasible, enter into a memorandum of understanding to provide
clarity for how this payment system will be executed.
Unnecessary agency red tape and bureaucracy should not stand in
the way of helping our veterans.
On April 21st, Senator Heitkamp, along with Senators Daines
and Lankford, introduced S. 2842, the Johnson-O'Malley
Supplemental Indian Education Program Modernization Act. The
Johnson-O'Malley Act is authorized by the Johnson-O'Malley
program to allow for the Bureau of Indian Education to contract
for the education of eligible Indian and Alaska Native students
enrolled in public schools. More than 90 percent of Indian and
Alaska Native students attend public schools. The various
programs are offered to American Indian and Alaska Native
students through the Johnson-O'Malley program relate to
academics, culture, dropout prevention and language.
Therefore, this bill will amend the Johnson-O'Malley Act to
direct the Secretary of Interior, in coordination with the
Bureau of Indian Education, to take measures in ensuring full
participation of all eligible Indian and Alaska Native students
in the Johnson-O'Malley program. This bill would require the
Secretary of Interior to provide a more accurate student count
of Indian students, utilizing existing data, considering the
last official count that was verified by the Bureau of Indian
Education occurred more than 20 years ago. That was 1995.
Without an accurate student count, it is difficult to determine
the need for these Johnson-O'Malley programs and the benefit
this program provides.
Today we have Ms. Carla Mann, from my home State of
Wyoming, to give testimony on S. 2842. She is from Fort
Washakie, Wyoming, located on the Wind River Indian Reservation
and has testified before this Committee on similar issues in
the past. Welcome back. I want to thank you, Ms. Mann, for your
tireless work on these issues and representing Wyoming proudly.
I would like at this point to turn to Senator Tester for an
opening statement.
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. Thank you, Mr. Chairman. If I might, before
I get into my opening statement, I want to talk about Kenneth
Martin for just a moment. Kenneth Martin is sitting behind me
to my left. He has served in the Senate for over 12 years now.
He started as research assistant under Senator Tim Johnson in
2004, at the age of 12 years old, isn't that correct?
[Laughter.]
Senator Tester. And he worked for Chairwoman Cantwell on
this Committee, starting at 2013, and worked on my staff since
2014. Today is his last day. He is leaving the good graces of
this Committee to work for the Department of Transportation, if
you can believe that, where he will be Deputy Assistant
Secretary for Tribal Government Affairs.
This is a new office within DOT and he will do a great job.
Because he is incredibly dedicated to Indian Country. He has
worked on nearly every issue in this Committee's jurisdiction.
He in fact has written many of my opening statements and
intentionally misspelled words, just to see if I was paying
attention.
[Laughter.]
Senator Tester. So I appreciate Kenneth's work. He really
is one of the good guys. We wish him the best in the Department
of Transportation, and just know that we are going to miss you
here on the Hill. Thank you, Kenneth, for your dedication and
your 12 years of good work here in the Senate. Thank you.
Mr. Chairman, thank you for holding this legislative
hearing this afternoon on two bills that touch on some of the
most pressing topics our Committee deals with: education,
health care and veterans. I would like to thank our witnesses
today for being here, in particularly two tribal witnesses,
Chairman Trudell of the Santee Sioux Tribe, Carla Mann from the
National Johnson-O'Malley Association and member of the
Blackfeet Tribe in Montana.
S. 2842 would direct the BIA to work with the Department of
Education and the Census Bureau to update the eligible student
count for JOM. The count has been frozen at the 1995 level.
This update would allow the growing number of eligible Native
students who have been left out of the program to finally be
able to participate in the JOM program.
S. 2417, Senator Thune's and Senator Rounds' bill, proposes
a way for the IHS and VA to make sure Native veterans are able
to fully access the health care promised to them through both
their service to this Country and their trust and treaty
rights.
Both bills up for discussion here today look at improving
and expanding how tribal members access services provided to
them based on the unique government-to-government relationship
between tribes and the United States. This is another common
issue that we hear about in this Committee almost on a weekly
basis. Both these bills will look at how agencies work together
to fulfill those responsibilities. The trust responsibility of
the United States is not limited to the Bureau of Indian
Affairs or the Indian Health Services. All departments and
agencies and offices of the Federal Government must do their
part to uphold the Federal obligations to tribes.
I want to applaud these bills for pointing out the areas
where different parts of the Administration can work together
and better serve Indian Country. I would like to say again,
thank you, Mr. Chairman, for scheduling this hearing, and thank
you to our witnesses for being here today. I look forward to
hearing about these bills and how they might impact folks on
the ground.
The Chairman. Thank you very much, Vice Chairman Tester.
Senator Thune, would you like to make a comment regarding
your bill?
STATEMENT OF HON. JOHN THUNE,
U.S. SENATOR FROM SOUTH DAKOTA
Senator Thune. Yes, thank you, Chairman Barrasso and Vice
Chairman Tester, and members of this Committee, for giving me
an opportunity to speak at today's hearing regarding one of the
bills that you are going to be hearing about today, and that is
the Tribal Veterans Health Care Enhancement Act. It provides a
legislative fix to an unfair practice that has been impacting
tribal veterans who receive care, both at the IHS and the VA.
I would point out that there were efforts made under the
Indian Health Care Improvement Act to streamline and coordinate
care for tribal veterans. But there is a lot of work that
remains to be done.
Currently, if you are a Native American veteran going to
your local IHS and then requiring purchase and referred care
services, IHS will refer you to the VA. Now, oftentimes what
happens is a Native American veteran who accrues a co-payment
or co-payments, depending on the medical condition, for
services rendered through the VA. Unfortunately, instead of the
IHS being responsible for the co-payment, the veteran, who in
many cases cannot afford that payment, is left with a bill.
Conversely, had IHS authorized the PRC services through a
private provider, there would be no co-payment for the
individual. By law, IHS can and does refuse PRC services to
tribal veterans. By doing so, IHS places the medical cost
responsibility on the VA and ultimately the Native American
veteran.
The IHS and the VA in the Great Plains area recognized that
this was an unfair practice that conflicted with our Nation's
trust obligations. They sought to address this issue through a
local memorandum of understanding in which IHS would pay the
co-payment costs and the VA accepted the payments. In 2012,
this MOU was rescinded. Once again, bureaucrats thousands of
miles away intervened with a one size fits all approach that
harmed Native American veterans.
For over three years, I have asked the IHS and the VA to
reinstate the local MOU and continue to work to improve
coordination of care for Native American veterans. I should
note that a nationwide MOU exists to provide for veterans
services provided at the Indian Health Service. The national
MOU states that it its purpose is ``to establish coordination,
collaboration and resource-sharing between the VA and the IHS
to improve the health status of American Indian and Alaska
Native veterans.'' However, over the last several years, I have
continued to hear from several tribal veterans with limited
incomes, who have had their social security and/or income tax
returns garnished by the VA for unpaid co-payments. These men
and women who have served our Country deserve better than that,
Mr. Chairman.
What gets lost in all of this bureaucratic shuffle and red
tape are the individuals impacted by this arrangement: Native
American veterans. These veterans, like all veterans, deserve
our upmost respect and gratitude. These are men and women,
Native Americans first, who then chose to serve the United
States. Their sacrifices, coupled with the Federal Government's
trust responsibilities, require us to remedy this situation.
That is what this bill would do. Simply said, it will
ensure the Federal Government upholds its responsibility to
provide health care to our Native American veterans. The
legislation will remedy conflicting Federal law that is harming
veterans and further the goal of providing the best care
possible for our Nation's heroes. So that is the bill, Mr.
Chairman.
Lastly, I just want to mention, and I would be remiss if I
didn't, that the ongoing issues within the Great Plains area
IHS, as of today, it has been 158 days since the Rosebud
Hospital's emergency department has been open. One hundred
fifty-eight days. In that time, there have been six members of
the Rosebud Sioux Tribe who have died while being transported
to facilities up to 55 miles away. Six. Six families are left
wondering whether their loved ones would be alive today if the
IHS had not failed in its responsibility to provide safe and
quality care.
This is a disgrace. I look forward to continuing my work
with you, Mr. Chairman, and with the members of this Committee
on the legislative path forward. I thank you, Mr. Chairman. I
know you have a couple of witnesses from my home State of South
Dakota here today that are going to talk about some of these
bills. I want to welcome them both here, both Mike Black,
Director of the Bureau of Indian Affairs, then also I want to
recognize Roger Trudell, who is the Chairman of the Santee
Sioux Tribe of Nebraska. Both are great leaders and people that
I have worked with, and will add greatly, I think, to the
discussions that you have today on these important pieces of
legislation.
Thank you, Mr. Chairman.
The Chairman. Thank you very much, Senator Thune. The other
piece of legislation was introduced by Senators Heitkamp,
Daines and Lankford. Would any of you like to make a statement
about that?
Senator Heitkamp. I would.
The Chairman. Senator Heitkamp.
STATEMENT OF HON. HEIDI HEITKAMP,
U.S. SENATOR FROM NORTH DAKOTA
Senator Heitkamp. Thank you, Chairman Barrasso and Vice
Chairman Tester, for holding this hearing on this bill today. I
also want to thank Senator Lankford and Senator Daines for
joining me in this effort to update student counts that will
illustrate the resources needed for Native students by the
Johnson-O'Malley or JOM program.
We have heard time and time again in this Committee, data
is lacking for Indian Country. The National Congress of
American Indians calls Indian Country the asterisk nation
because of the invisibility that is perpetuated by Federal and
State agencies and policies that leave American Indians and
Alaska Natives out of our data collection efforts, data
reporting and data analysis and public media campaigns.
While the Bureau of Indian Education has attempted to
collect accurate data for Native students being served by this
program, failure has persisted for over 20 years. Last month,
in a bit of good news, the U.S. Census Bureau announced that it
will be testing its data collection work in North and South
Dakota at the Standing Rock Sioux Reservation. Hopefully this
will help us get a handle on accurately assessing population
growth and tribal community needs.
Building on this effort, I introduced this bill, which
would utilize census data and other existing information to
help the Bureau of Indian Education overcome these obstacles.
One of the fastest-growing demographics, certainly in my State,
is Native American children. If we are going to be successful
into the future, we need to make sure that these children get a
great start.
Since the Johnson-O'Malley program was enacted in 1934,
funds under the program have provided critical funding to
support Native students and their cultures and schools. That is
for public schools, which is where over 90 percent of students
attend. Unfortunately, the estimated numbers of children
eligible under the program has been frozen since 1995,
resulting in diminished funding over time.
In 1995, the Bureau conducted its most recent official and
verified JOM student count, which is just over 271,000 eligible
Native students. Yet according to the U.S. census, nearly
800,000 qualified Native American and Alaska Native students in
the JOM-eligible age group actually were counted. That
illustrates a huge gap in the numbers that we use and the
numbers that are probably reality.
I don't fault the Bureau for its inability to get accurate
information. But we can't keep doing the same thing that we
have always done and expect a different result. Now is the time
to look at different methods. I think when you look at the
critical importance of education as a foundational piece for
change, we cannot allow Native American kids to go undercounted
and underserved if we expect to have a different future or a
different outcome for these children.
So to me, it is a foundational piece in terms of getting
the right services available to children. It is absolutely
essential, and I want to thank the Chairman and the Vice
Chairman for including this in the hearing today.
Thank you, Mr. Chairman.
The Chairman. Thank you. Senator Daines?
STATEMENT OF HON. STEVE DAINES,
U.S. SENATOR FROM MONTANA
Senator Daines. Thank you, Chairman Barrasso, Vice Chairman
Tester. Providing tribal students with a strong education is an
essential part of the U.S. trust responsibility. Montana's 12
federally-recognized tribes benefit from the Johnson-O'Malley
program. I have heard from educators and school administrators
from across Montana how tribal communities need the Department
of Interior to have an accurate count of students that should
be covered under the program to meet the educational needs of
Native American children.
For example, Daniel St. Pierre, President of Stone Child
College in the Rocky Boys Reservation, where local Johnson-
O'Malley programs are coordinated, has affirmed what we know to
be true. That is that there are thousands of Native American
children across the Country who are denied resources they have
been promised through Johnson-O'Malley, and this program needs
to be brought into the 21st century. Yet the Department of
Interior is still using data from 1995. It is hard to believe
that this is the case more than two decades later.
That is why I was pleased to help introduce the Johnson-
O'Malley Supplemental Indian Education Program and
Modernization Act. I want to thank Senators Heitkamp and
Lankford for their help on this, which will ensure
participation of all eligible Indian students under this
program. I look forward to hearing testimony on this bill from
the witnesses and the greater conversation here today.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator. Senator Lankford?
STATEMENT OF HON. JAMES LANKFORD,
U.S. SENATOR FROM OKLAHOMA
Senator Lankford. Thank you, Mr. Chairman. I also want to
thank Senator Daines and Senator Heitkamp for their work on
this. This has been an ongoing project for a long time. When
you deal with Johnson-O'Malley, one thing is clear every time
you deal with it, and that is, the count is wrong. So trying to
get an update on this count would be extremely helpful.
In Oklahoma, our estimate from the Department of Education
is somewhere around 100,000 Native American students. The
current estimate by Johnson-O'Malley 11,000. So it is a pretty
significant count on that.
I have a letter that I would like to submit for the record,
if the Chairman would allow that.
This is from our Secretary of Education, Drew Hoffmeister,
affirming not only this conversation but also detailing some of
the issues that are within my State in Oklahoma dealing with
JM. So I appreciate the work on this.
The Chairman. Without objection, so ordered.
[The information referred to follows:]
Oklahoma State Department of Education
May 10, 2016
Senator James Lankford,
United States Senator,
Dirksen Senate Office Building,
Washington, DC.
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.
Senator Lankford. I unfortunately will not be able to stay
through the whole hearing, as all of us have multiple hearings
at multiple times. But I would like to ask for the record on
this, in the days ahead, and this would have been a
conversation I would have had with Director Black, in February
my staff requested a list of all Interior programs that deal
with opportunities for tribes. We were told at that time, if we
wanted to know that list, and we asked a very specific thing,
just a list of all the programs, and if they were evaluated,
the metrics for those programs, so we would get a chance to see
those.
At that time in February, we were told to go to the catalog
of Federal domestic assistance and search for the word Indian,
and that would be as close as we could get. Obviously, that is
not acceptable to us. We want a basic list of all the programs
and a list of their effectiveness. We also submitted this as a
question for the record last month. We don't think it is an
unreasonable request. I would assume that the BIA has a list of
all their programs, and if there is an evaluation of those
programs, how they evaluate it. That would be very helpful to
us.
One of the passion areas that we have had, in fact, with
Senator Tester and I just talking about duplication of programs
and how we can help. Sometimes it is in multiple agencies, in
fact, most of the time it is in multiple agencies. We want to
be able to help in that process, to be able to get it to a more
effective spot and make sure the money is heading towards the
actual tribal members and what is going on rather than toward
the bureaucracy. Most people here want to be able to help with
that and the journey as well. We would like to be able to get
that list in the days ahead, just so we can be a help in that
process as well.
So that would have been a conversation we would have had.
Obviously we won't have time to do that today. But I will look
forward to being able to get that list in the days ahead. Thank
you.
The Chairman. Thank you, Senator Lankford.
At this time, we are going to hear from our witnesses. We
have Mr. Mike Black with us, who is the Director of the Bureau
of Indian Affairs from the Department of the Interior. We have
the Honorable Roger Trudell, Chairman of the Santee Sioux
Nation, from Niobrara, Nebraska. And we have Ms. Carla Mann,
President of the National Johnson-O'Malley Association, from
Fort Washakie, Wyoming.
I want to remind the witnesses that your full written
testimony will be made part of the official record. Please try
to keep your statements to within five minutes so there will be
plenty of time for questions.
With that, let me start with you, Mr. Black.
STATEMENT OF MICHAEL S. BLACK, DIRECTOR, BUREAU OF INDIAN
AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR
Mr. Black. Good afternoon, Chairman Barrasso, Vice Chairman
Tester and members of the Committee.
Thank you for the opportunity to provide the Department's
position on S. 2842, the Johnson-O'Malley Supplemental Indian
Education Program Modernization Act.
The Department supports the goals of S. 2842, but does
recommend some technical changes. The JM, or JOM program, is
authorized by the Johnson-O'Malley Act of 1934. Tribal
organizations, Indian corporations, school districts and States
may receive funds once they establish an Indian education
committee to approve supplementary support programs.
American Indian and Alaska Native students are eligible if
they are members of a federally-recognized tribe or certify
that they are at least one-quarter or more degree of Indian
blood and descendant of a member of a federally-recognized
Indian tribe eligible for services from the BIE. Indian
students have unique educational needs, which include learning
about their languages, cultures and history. They are often in
our public schools, with an academic skills deficit or are in
need of more services to overcome the stressors they face,
compared to their peers.
The JOM program is one tool to ensure that Indian students
thrive in an environment suited to their strengths, which
acknowledges their challenges. In fiscal year 2012 and 2014,
the BIE performed student counts required by Congress. After
formal consultations with representatives from tribes, public
schools, tribal organizations and parents, a total of 448
entities submitted student count data. There were approximately
556 total JOM contractors.
The 2012 JOM count identified 321,273 eligible Indian
students as compared to the last count in 1995, which
identified 271,884 eligible students. The 2014 count resulted
in a final student count of 341,495 for the 399 JOM contracts
that submitted data. It should be noted that not all current
JOM contractors submitted a student count.
The Department supports the goals of the bill to strengthen
the JOM program and ensure that more eligible students are
receiving the support they need to be successful. However, the
Department is concerned that Section 7(A)(3)(a) of S. 2842, by
defining eligible Indian student as an individual who attends
public schools but unintentionally eliminate the current
allowance for previously private schools, which are currently
funded under the program. The BIE currently funds 41 previously
private schools, with a total count of 5,209 eligible JOM
Indian students. We want to ensure that they continue to
benefit from this program.
The Department appreciates the legislation's clarification
that JOM funds may be used for science, technology, engineering
and mathematics, or STEM instruction and counseling services.
However, we want to work with the bill's sponsors on a
mechanism to ensure that JOM funds supplement, but not replace,
standard instruction and services in public schools.
The Department seeks clarification from the bill's sponsor
regarding language in Section 7(C)(1)(d) which states
activities that were available to Indian students under
contracts are entered into under this Act October 1, 2012.
While the Department supports the interest to hold entities
harmless under this new legislation, we are concerned the
provision unduly limits the Secretary's discretion to reduce
funding for other reasons, i.e., misuse.
The bill also directs the Department to cross-check student
count data with data from the U.S. Bureau of Census, the U.S.
National Center for Education Statistics and the U.S.
Department of Education's Office of Indian Education, or OIE.
We assume the bill is referring to the student count used by
the OIE formula grant payments under Title 6 of the ESEA, or
formerly Title 7. If that is the case, it should be noted that
Title 6 formula grants are based on student eligibility that is
broader than JOM eligibility as OIE's count includes members of
State-recognized tribes, and children and grandchildren of
federally-recognized tribes without regard to blood.
The Department is concerned that the U.S. Census Bureau
data will include self-identified individuals who may not
otherwise be eligible for services from the Department's BIE or
BIA because our jurisdiction extends only to members of
federally-recognized tribes or students who are identified as
eligible under the Act. We would be happy to work with the
bill's sponsor to clarify and develop a process to ensure
accurate identification of Indian students.
The Department is also concerned that S. 2842 will change
existing language referring to contracts and the collection of
a student count. The BIE currently relies on the Indian
Education committee to determine how it will collect and verify
student data. Additionally, the Indian Education committee
participates in negotiation concerning all contracts under this
part.
This concludes my statement, and I am happy to answer any
questions you might have. Thank you.
[The prepared statement of Mr. Black follows:]
Prepared Statement of Michael S. Black, Director, Bureau of Indian
Affairs, U.S. Department of the Interior
Good afternoon Chairman Barrasso, Vice Chairman Tester, and members
of the Committee. My name is Mike Black. I am the Director for the
Bureau of Indian Affairs at the Department of the Interior
(Department). I am here today to provide the Department's position on
S. 2842, the Johnson-O'Malley Supplemental Indian Education Program
Modernization Act.
The Department supports the goals of S. 2842 but recommends some
technical changes.
Background
The Johnson-O'Malley (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 American
Indian and Alaska Native students who are not enrolled in Bureau or
secretarian operated schools. A local JOM program operates under an
educational plan that the Bureau of Indian Education (BIE) approves.
These plans contain educational objectives addressing the needs of
eligible students, offering various opportunities including cultural
enrichment, tribal language, academics, and dropout prevention
programs.
Tribal organizations, Indian corporations, school districts, and
States may receive funds once they establish an Indian Education
Committee to approve supplementary support programs. American Indian
and Alaska Native students are eligible if they are members of a
federally recognized tribe, or certify that they are at least one-
fourth or more degree of Indian blood and descendant of a member of a
federally recognized Indian tribe eligible for services from the
Bureau. In addition, children must be between age 3 through grade 12.
In Fiscal Years (FYs) 2012 and 2014, the BIE performed a student
count as required by Congress. After formal consultations 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 count in 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. It should be
noted that not all current JOM contractors submitted a student count.
S. 2842
The Department supports the goals of the bill to strengthen the JOM
program and ensure that more eligible students are receiving the
support that they need to be successful. Indian students have unique
educational needs, which include learning about their languages,
cultures, and histories. Indian students often enter public schools
with an academic skills deficit, or are in need of more services to
overcome the stressors they face compared to their peers. The JOM
program is one tool to ensure that Indian students thrive in an
environment suited to their strengths which acknowledges their
challenges.
However, the Department has the following concerns with S. 2842.
The Department is concerned that section 7(a)(3)(A) of S. 2842, by
defining ``eligible Indian student'' as an individual who ``attends
public school,'' would unintentionally eliminate the current allowance
for ``Previously Private Schools,'' currently funded under the program.
The BIE currently funds 41 Previously Private Schools with a total
count of 5,209 eligible JOM Indian students, and we want to ensure that
they continue to benefit from this program.
The Department appreciates the legislation's clarification that JOM
funds may be used for Science, Technology, Engineering and Mathematics
(STEM) instruction and counseling services. However, we want to work
with the bill's sponsors on a mechanism to ensure that JOM funds
supplement, but not replace, standard instruction and services in
public schools.
The Department seeks clarification from the bill's sponsor
regarding language in section 7(c)(1)(D), which states, ``activities
that were available to Indian students under contracts entered into
under this Act before October 1, 2012.'' While the Department supports
the interest to hold entities harmless under this new legislation, we
are concerned that this provision unduly limits the Secretary's
discretion to reduce funding for other reasons (i.e. misuse).
The Department understands that there are concerns with how the
student count affects how many students are able to benefit from the
program. The bill directs the Department to cross-check student count
data with data from the U.S. Bureau of Census, the U.S. National Center
for Education Statistics and the U.S. Department of Education's Office
of Indian Education (OIE). We assume 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
that the 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. The Department is
concerned that U.S. Census Bureau data will include self-identified
individuals who may not be eligible for services from the Department of
the Interior's BIA or BIE, because our jurisdiction extends only to
members of federally recognized tribes or students who are identified
as eligible in the Act. We will work with the bill's sponsors to
clarify and develop a process to ensure the accurate identification of
Indian students.
The Department is also concerned that S. 2842 would change existing
language referring to contractors and the collection of a student
count. The BIE currently relies on the Indian Education Committee to
determine how it will collect and verify student data. Additionally,
the Indian Education Committee participates in negotiations concerning
all contracts under this part. The Department therefore seeks
clarification of the term ``significant'' as it is used in section
7(d)(2)(C)(ii)(II) and in section 7(e)(2)(A) of S. 2842. Section
7(d0(2)(C)(ii)(II) refers to ``eligible entities that may potentially
enter into contracts under subsection (b) with a significant number of
eligible Indian students but that have not previously entered into a
contract under this Act.'' The Department also seeks clarification of
the term ``significant'' in section 7(e)(2)(A) of S. 2842, concerning
increased participation, in relation to populations.
The Department also notes that one provision of S. 2842 raises
constitutional concerns under the Recommendations Clause. We believe
this concern could be easily ameliorated, and we will work with the
Committee and sponsors to do so.
This concludes my statement. The Department is committed to working
with the Committee and the sponsors of S. 2482 to discuss changes to S.
2842.
The Chairman. Thank you very much, Mr. Black.
Chairman Trudell, please.
STATEMENT OF HON. ROGER TRUDELL, CHAIRMAN, SANTEE SIOUX NATION
Mr. Trudell. Thank you, Chairman Barrasso, honorable
members of the Committee. Special thanks to Senator Thune, who
has attended many of the veteran meetings in our region.
I have submitted written testimony on both proposed
amendments. I would like to devote more of my time to generally
inform, as a veteran. I am the Commander of Region 1, American
Indian Veterans Association, which is supposed to be a
nationally-chartered organization. But we have failed to have
our charter get federally-recognized.
We have nine active tribes in Region 1, North Dakota, South
Dakota, Nebraska, that participate regularly at our meetings.
Some of the concerns of our veterans were addressed very
strongly by Senator Thune, and that is the co-pay for services
that Indian Health Services is referring veterans out to VA for
services, and in some cases, refusing to see veterans because
they are eligible for veteran's service.
I agree with Senator Thune, there is a treaty obligation
with the tribes in the Great Plains that Indian health service
would be provide, that health services and social services, et
cetera, would be provided to the treaty tribes. Indian Health
Service was created basically to provide health services to
Indians. That they should ever deny a service to an Indian,
whether that Indian person is a member, a veteran eligible for
veteran's services or not, is totally wrong. For an
organization who should be dedicating all their services to
improve health care for all tribal people, regardless if they
are veterans or non-veterans, they need to fully realize that
they can't separate that category and create a burden on Indian
veterans.
As I say in my testimony, for our region, North Dakota,
South Dakota, Nebraska, that whenever the Indian veterans have
to travel nearly up to 200 miles to receive service from
veterans. There are some community-based outpatient clinics
that provide limited services. But for treatment beyond what
the outpatient service clinics can provide, then they have to
go to Omaha, Sioux Falls or Hot Springs, Fort Mead and those
areas to get those services.
We have large reservations with many isolated communities.
Not only isolated from good roads, but isolated from services.
It is very difficult for a lot of those, there is inadequate
transportation to get veterans from one service to another. So
I think that this amendment that will allow for the co-pay,
which many of the veterans, as you have heard, have been
charged with. Personally, myself, when I went to VA, I was
rated at 10 percent, I had to pay a co-pay on medications and
stuff. And believe me, I have enough medications to take care
of half of you guys sitting up there.
Again, the co-pay by American Indians that have served this
Country, I do not believe that should exist. Indian Health
Service, with this amendment, could no longer deny paying those
co-payments.
It would also enhance the ability of tribal clinics to
further their MOUs or MOAs with VA to create an exchange of
services between tribal facilities and VA, which is allowable
under the national MOU. So I guess personally, I would like to
say that many of our veterans have suffered. There is a
particular case in Flandreau, South Dakota, a gentleman named
Dave Williams. Indian Health Service and BIA argued over who
should pay for his heart operation. He had a bad valve, he has
a mechanical valve now.
I happened to be in Flandreau, and his wife asked to see me
and another gentleman from Flandreau. She was crying because
her husband was going to die because nobody was going to treat
him. We advised him just to go, and if necessary, the Santee
Sioux Nation of Nebraska and the Flandreau Santee Sioux would
combine and we will take up the task and we will see who will
pay. While BIA I guess ended up paying for it, but the point
is, why put his family through that type of unnecessary
position to have to worry about the loss of her husband and
their children's dad? Those things should never be heard of in
this day and age.
Many of us as veterans, we grew up as Indian people grew
up, in very rural, isolated areas. We never had access to
medical doctors, nurses or anything. So we just kind of grew
up, not worried about taking care of the medical needs of
ourselves. Even while we were in the service, we didn't go to
sick call and things like that. So we had no historical medical
records while we were in the service outside of the shots and
eye tests and dental exam you get when you first go in.
I am sorry, I have run out of time. Thank you for listening
to me. Thank you.
[The prepared statement of Mr. Trudell follows:]
Prepared Statement of Hon. Roger Trudell, Chairman, Santee Sioux Nation
S. 2417
Good Afternoon Mr. Chairman:
My name is Roger Trudell and I am the Chairman of the Santee Sioux
Nation. I am also the Chairman of the Great Plains Tribal Chairman's
Health Board. Thank you for holding this hearing, and thank you for
your interest in this most important subject.
As I am sure that you are aware, American Indians, especially those
from the Great Plains Region, have served, and continue to serve, in
the U.S. Military at rates higher than any other ethnic group. I myself
am a veteran of Vietnam. I therefore believe that I can speak for all
Indian veterans when I say that we are proud of our service to this
Country, and prouder yet of those native men and women who gave their
lives to protect the United States and our way of life. Native veterans
are equally proud of that fact that we fought in defense of our Tribes,
our Treaties, our Indian relatives, and our tribal sovereignty.
Unfortunately, all too many of our Indian veterans returned home
with physical and emotional scars requiring medical attention. Some of
these problems are not immediately evident, so all too many of our
native veterans find themselves having to fight, with very little
support, to prove that their current problems are in fact service
related. This is wrong and something should be done about it!
What is also wrong is requiring native veterans, who are often
among the poorest people in the United States, to pay from their own
pockets for medical care from the VA or any other federal program. The
United States has a trust responsibility, a Treaty responsibility, and
sacred duty to our veterans to insure that those men and women who put
themselves in harms ways for this country are afforded proper medical
care. Yet today, when we go to the VA (and especially when we have to
go to a VA referral care provider) we are asked to complete a financial
assessment or means test so that the United States can determine how
much it is going to ``charge us'' for providing the medical services we
were promised. Thus, I hope that you can understand why Indian
veterans' believe that their right to adequate health care is rooted in
three separate promises, promises which our veterans currently view as
unfulfilled.
To make matters worse, today most of our Indian veterans have to
travel hundreds of miles to get to a VA facility. Due to the expense of
traveling such a distance, many of our Indian veterans actually have to
save for months in order to merely make the trip to see a doctor.
Adding to this already difficult situation, many then have to pay to
stay overnight near the VA facility in order to be available for a
morning appointment that they have waited months to get, to await test
results, or to be scheduled for a more extensive test like an MRI. This
too is wrong!
When you add together the cost of gas, food, and lodging, along
with the cost of the deductible or co-pay that VA charges and that the
IHS currently does not pay, it is not unusual for an Indian veteran to
spend $200 or more just to go the VA for the care that they were
promised. So I ask you, is this right?
Co-pays of $15-$50 for outpatient care may not seem like a lot to
people in Washington, but I can assure you that these co-pays can, and
often do, represent the difference between being able to pay or not pay
the heat bill for an Indian veteran living on my Reservation. This is
especially true for older vets.
The situation becomes even worse for veterans requiring inpatient
care, or surgery where co-pays and deductibles can run anywhere from
$1,000 up to $4,000 or more without warning. This amount is hard for a
middle class family to pay in this economy and is all but impossible
for Indian veterans living at the poverty line in Santee.
No veteran should have to go through a surgery or a serious
inpatient illness alone, and given the distance and our lack of public
transportation, many Indian veterans cannot even get to a VA hospital
without help. To alleviate this situation, many of our Indian veterans
are forced to go even further into debt just to allow their spouse or
another family member to accompany them to the doctor or the hospital.
Securing a driver means a higher food bill while traveling and still
another hotel charge, as well as a loss of work for the person
providing that assistance. The families of veterans living near urban
based VA hospitals can go home a night, but in almost every case for a
person from Santee, they cannot. I therefore find it ironic that the VA
already has a program which allows veterans living in ``high cost urban
areas'' to qualify for a reduced inpatient copay rate, but those of us
living in areas which are miles from the closest VA facility and living
at or below the poverty line do not.
Mr. Chairman, as a proud Native Veteran and as the leader of the
Santee Sioux Nation, I respectfully say to you today, it's time to fix
this problem by requiring our treaty health provider, the Indian Health
Service, to start paying the VA based co-pays that our Indian veterans
are entitled to. It's only right! It's only fair! And it's simply the
right to do! It is time to do what's right and fulfill the sacred
promises made to those who have sacrificed so much. Please pass S. 2417
as soon as possible.
Thank you again for holding this hearing, and thank you again for
caring about the native men and women who put their lives on the line
for this Great Country.
S. 2842
On behalf of the Santee Sioux Nation, I would like to thank you for
this opportunity to testify on the Johnson-O'Malley Supplemental Indian
Education Program Modernization Act. We support this legislation and
look forward to the positive impacts that it will have on the lives of
so many of our school-age children.
Our Indian students have too-long been neglected, not just in the
schools operated directly by the Bureau of Indian Education (BIE), but
also in the public school systems that some 93 percent of our Indian
children attend. It is all too easy to forget that all of the on-
reservation school age children from Santee, and a large percentage of
the children residing on our Great Plains Reservations, attend public
schools. These children have many of the same problems and the same
needs as those who attend BIE operated institutions, but those needs
often get lost in the broader public educational system.
Many of our Indian children attending public schools also face the
additional obstacles of family income inequality, social and cultural
differences, and in some cases racism. This bill represents a small
step towards addressing these problems in that it allows an expanded
role for tribal government and tribal institutions in decisions that
impact our children's chances for success.
For too many years, JOM funds have been controlled exclusively by
the local school systems, and they never seemed to make it down to our
Indian students. This is because the voices of our tribal parents and
tribal governments, who had, and still have, the strongest vested
interest in insuring that all available Indian funds were being used to
address the very real problems that our Indian students are facing,
were not being heard. S. 2842 will help to change that by allowing
tribes and Indian organizations to contract to manage those funds.
While there are many fine and committed educators in our public
schools systems, there are not enough, and those educators advocating
for our Indian children cannot operate effectively with inadequate
resources. Many of our native students need remedial instruction,
counseling, and tutoring, but most of all they need to be made to feel
that they can achieve. Our Indian students need to be allowed to show
their pride in our culture and in their Indian identity, and be made to
feel that they have both the tools and the ability to accomplish any
goal that they set their minds to. That is largely not the case today.
At the beginning of the 20th century, the disastrous policy of
assimilation was designed to kill a student's Indian identity. This
laid the foundation for boarding schools and for a policy designed to
encourage our youth to abandon their language and culture in order to
``fit in.'' Instead of achieving the full assimilation that was sought,
this policy produced lost generations, many of whom are now the parents
and grandparents of our school aged children. The effects of this
assimilation policy are still felt today by tribal families and by
Indian children both on and off the Reservation.
With passage of the Johnson-O'Malley Act in 1934, that policy
mercifully started to change. It is hard, though, for an Indian child
to feel proud when they are the only one in the room without school
supplies, gym clothes, or a book-bag and the only one who cannot join
the science club because they have no way to get home once the school
bus leaves at the end of classes.
When examining why our Indian student's educational achievement is
not higher, it is important to remember that in the Great Plains, up to
60 percent of our children live and study in poverty. This is almost
double the national average, which still hovers somewhere around 33
percent. Thus, the JOM funds provided by Congress are critically needed
to support a new direction for our children and to start to give them
the tools that they need in order to believe in themselves. To
accomplish their intended goal, however, those funds need to be managed
by entities which understand our students and which have their best
interest at heart.
For this reason, we were pleased to see that this legislation
allows tribes, tribal organizations, and Indian corporations to
contract to manage JOM funds. As I noted above, no one has a higher
vested interest in the success of our children than their tribes, and
no one is going to listen more carefully to the voices of their parents
and advocates than we are.
We were also pleased to see that you are mandating tribal
consultation in the establishment of the JOM student count and in
managing the proper distribution of the JOM funds authorized by this
legislation and this Congress. For years our students have been
undercounted and, as a tribal leader, I am tired of hearing the excuses
that administration after administration has given for allowing this to
continue.
As the leader of the Santee Sioux Nation and as a proud member of
the Great Plains Tribal Chairmen's Association, I can state
definitively: Give us the resources, and the power to use them, and we
will make a difference in the lives of our students!
For all of these reasons, I encourage the passage of S. 2842 as
soon as possible.
The Chairman. Thank you so much, and you will have more
time when we get to the questions, Chairman Trudell. Thank you.
Ms. Mann, thank you for joining us today. Please proceed.
STATEMENT OF CARLA MANN, PRESIDENT, NATIONAL JOHNSNON-O'MALLEY
ASSOCIATION (NJOMA)
Ms. Mann. Good afternoon, Chairman Barrasso, Vice Chairman
Tester and members of the Committee.
My name is Carla Mann. I am a member of the Blackfeet
Nation, also of Eastern Shoshone descent. I live on the Wind
River Indian Reservation, home to the Northern Arapaho and
Eastern Shoshone Tribes. I have worked with the Johnson-
O'Malley program for 23 years, but today I am here as a member
of the National Johnson-O'Malley Association. I am currently
serving as the president.
As our honorable Senators have said before, the National
Johnson-O'Malley Association has advocated for the release of
the student count freeze that has been in place since 1995. At
that time, once the numbers were released of that count, it was
272,000 students. Today we know that we have many more
students, even in 1994, we knew there were more students than
were actually counted.
What we are asking for through this legislation, we support
S. 2841, the Johnson-O'Malley Modernization Act of 2016. There
is also companion legislation, H.R. 4390. The most important
piece of both of those pieces of legislation is the
comprehensive JOM student count across the Nation. It was said
earlier the BIE had two counts in 2012 and 2014. We know that
those were both flawed counts, and we know that they are not
showing the true numbers. We also think that at this point, due
to the cutbacks and losing different employees, the BIE is not
in the data collection business.
In looking for solutions to find a way of counting our
students across the Nation, we discussed using census data.
Census shows that we have 798,000 students across the Nation
from ages 3 to 18 that claim to be an enrolled member of a
federally-recognized tribe. There have been many concerns about
self-identification of even the census data. We all know that
when we fill out our census forms, we all identify as one race.
So everybody has self-identification. There is going to be a
reconciliation process, in utilizing census data that we can
find the correct amount of students, that we are going to be
serving from the census data.
One thing that we have also identified is there is an OMB
directive number 15 on race and ethnic standards that shows how
you utilize that census data. And it specifically talks about
Native Americans and how we would use that data. The census
data is also used in other programs in the Bureau, such as
tribal roads, and it is also used in Indian housing.
In conclusion, I would like to say that 93 percent of our
Nation's Indian students go to public schools. There is a trust
responsibility for all students, not just students in Bureau-
funded schools or grant schools. Our students deserve to have
the very best education. We also want them to be well-educated,
as our students are going to be our future. They are our rising
stars that will be coming in future to be able to run all of
our programs, our tribes. So we want to make sure that all of
our students have the very best opportunity at a great
education.
In conclusion, I would just like to thank everybody for
allowing me to talk about the JOM program and also urge the
passage of this JOM Modernization Act of 2016. Thank you.
[The prepared statement of Ms. Mann follows:]
Prepared Statement of Carla Mann, President, National Johnsnon-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. 2842, the Johnson-O'Malley Modernization Act of
2016; 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, for nearly 25 years and through several
Administrations, the Department of Interior and BIE have exhibited a
``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 and again in 2016, 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 today on behalf of the over 1 million Indian
children asking this Committee and the Congress to quickly approve S.
2842 so that these children can rightfully obtain the kinds of
supplemental educational services and assistance they need to become
productive American citizens.
Today as we sit here, we hope you are as upset as we are that no
one in the BIA, BIE or elsewhere in the Federal Government who can tell
us, how many Indian children are eligible to participate and receive
services or assistance under the Johnson-O'Malley program. This
unacceptable situation exists because for over 20 years, there have
been no legitimate efforts made to conduct the kind of research and
data collection needed to answer the question. This has been the case
even though our organization has been aggressively calling on Congress
and the last 3 Administrations to act. In our view, it is long past the
time for us to engage in a serious discussion about alternatives or
options to correct this problem.
We are extremely pleased and thankful that Senators Heidi Heitkamp,
James Lankford, Steve Daines--and we hope all of you will also join--
have stepped up to introduce legislation to tell the Secretary of
Interior to select and use a widely accepted government data set 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, along with companion
legislation (H.R. 4390, McCullum, Cole, Young and Huffman) introduced
in the House will authorize the Secretary to use one these data sets to
establish a new baseline count of eligible Indian students for use in
instituting 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 on an
ongoing basis, keep the count accurate and reported to the Congress on
an annual basis.
On January 13, 2016, Representative Betty McCollum introduced H.R.
4390, the Johnson-O'Malley Supplemental Indian Education Program
Modernization Act to the 114th Congress with bipartisan support. In
addition, on April 21, 2016, Senators Heidi Heitkamp and James Lankford
introduced bipartisan legislation to the Senate. Known as S. 2842, the
Johnson-O'Malley Supplemental Indian Education Program Modernization
Act is the companion bill to the House version. Both bills call for an
update to the data used by BIE to account for the JOM program. The
bills call for the Department of Interior to update the student count
in a timely manner using both Census data and data from the National
Center for Education Statistics (NCES) to account for the eligible
students that are currently underserved or denied JOM services
entirely.
As a result of Congressional advocacy by NJOMA, the BIE was
directed to resume the JOM student count. The FY 2012 Congressional
Interior Appropriations Act (H. Rpt. 112-151) contained a directive for
the Bureau to conduct a student count update. The BIA executed--but
failed to report to Congress--a partial attempt to update the JOM
student count. While BIE admitted the update was flawed, it has been
verbally acknowledged--but never officially reported--that the 2012
count found an increase of over 50,000 JOM-eligible students. Sadly,
the update was fundamentally flawed because the FY 2012 directive
failed to order the Secretary of the Interior (BIE) to conduct outreach
to Tribal organizations, Indian Corporations, school districts or
States that are ``non-participating'' entities in the JOM program
today. Rather, because of the general language contained in the
directive, BIE only contacted and counted existing enrolled students
and JOM contract-holders.
For that reason, the FY 2014 Consolidated Appropriations Act (P.L.
113-76) contained a more specific directive for BIE to conduct a full
and accurate student count in fiscal year 2014 and to publish the
results before the end of the fiscal year. On July 24, 2014, the BIE
began this student count by sending a letter to tribal leaders but did
not conduct a broader outreach and did not provide the materials online
until August 19, 2014. The student count period was set to end on
September 15, 2014, but was extended to the end of the calendar year.
The FY 2015 Congressional Interior Appropriations Act (H. Rept. 113-
551) contained a directive to BIE to publish the results of the most
recent student count; to date, no results have been published nor
student count information publicly released. No alternative has been
presented by this or the two previous Administrations to address the
absence of reliable data for the JOM program. And finally by FY 2016,
the Committee
NJOMA has been at the fore front of a drive to educate and organize
tribes and other National tribal and educational organizations in a
call by all the stakeholders in the JOM program to simply just
acknowledge that there has been a significant gap in the collection of
the data needed to effectively and fully operate the JOM program. We
have also made numerous attempts to reach out to BIA, BIE and the White
House to try to develop an administrative fix for the JOM student count
situation and develop a funding plan , as evidenced by the letter
attached to my statement (See exhibit A). This letter signed by the
Presidents of NJOMA, the National Congress of American Indians (NCAI),
National Indian Education Association (NIEA) and National Education
Association (NEA) presented a request to the Secretary to convene a
meeting of the key stakeholders so that we could develop a plan and
implementation Plan to bring the JOM program into the 21st century.
Regrettably, we have only been given one excuse after another as to why
none of the appropriate officials of the Department could or would have
a meeting.
For years when members of our Board and others in the JOM family
have visited Washington in pursuit of additional program authority and
funding for JOM, we have been told by Members of Congress and your
staff that until data more accurately reflecting the program is
presented there's little that could be done to bring JOM in-line with
the numbers of students that school districts and tribes see at the
local levels. S. 2842 moves us toward resolution of the student count
issue.
What Does the Census Data Tell Us?
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.
On June 30, 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 278,000 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 is clear that there are
a large number of 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.
Current Use of Census Data
NJOMA has been leading an effort--despite BIA's reluctance to
embrace our position--to replace the BIE's annual student count
process, which it appears unwilling and unable to make perform
effectively, with usage of U.S. Census data. 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 uses 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 the Department 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 Department to do so. It is also an
essential mechanism for monitoring the quality of services that the
Department is responsible to provide to American Indian and Alaska
Native people. By the Department's inaction, tribes are being made
responsible for a lack of federal agency coordination around the issue
of data quality and the measurement of small populations. Specifically,
there needs to be greater coordination between the Department, Census,
and Office of Management and Budget to address the widespread problems
that plague data collection for Indian Country.
BIA/BIE's 2012 and 2014 counts--as imperfect as they may be--make
the clear case that there have been increases in the number of students
needing and being serviced by JOM since 1994. The only real issues in
dispute are how much of a student increase has actually 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 Census 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. 2848 will
direct the use of Census data to bridge the 20 year gap since the last
true JOM student count and serve as a replacement for a BIE count
altogether.
Indian Country's View on Census Data
In 2014, both the National Congress of American Indians (NCAI) and
the National Indian Education Association (NIEA) passed resolutions
(See attached exhibits B and C) calling for greater coordination among
Interior, the Census Bureau, and the Office of Management and Budget to
ensure that Census data is accurately utilized for the benefit of
eligible JOM students. NCAI Resolution ATL-14-039 and NIEA Resolution
2014-19 call for the upholding of the federal trust responsibility
though the use of Census data for updating JOM student counts. In
addition, the National Education Association (NEA), has signed a joint
letter with NJOMA, NCAI, and NIEA supporting the efforts to use Census
data in lieu of an accurate student count.
We also have just recently received a resolution of support for our
efforts from the Inter-Tribal Council of the Five Civilized Tribes
representing the historic Cherokee, Choctaw, Chickasaw, Creek, and
Seminole nations (See attached exhibit D).
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 Tribal Priority Allocation (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 made 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 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 that 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, even though the great majority of
Native students attend public schools and not Bureau-operated 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 an increase of students served
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.
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Federal Trust Responsibility and JOM
The United States has a unique nation-to-nation relationship with
and owes a trust responsibility to Indian tribes. The federal
government's trust relationship with Indian tribes (which is based on
treaties, agreements, statutes, court decisions, and executive orders)
charges the United States with moral obligations of the highest
responsibility. The federal Indian trust responsibility is a legal
obligation under which the United States ``has charged itself with
moral obligations of the highest responsibility and trust'' with
respect to Indian tribes (Seminole Nation v. United States, 1942).
This duty to tribes was first discussed in 1831 in Cherokee Nations
v. Georgia and has evolved over the countless Supreme Court cases on
the issue, making the trust doctrine one of the most important
principles in federal Indian law. The trust responsibility is also a
legally enforceable fiduciary obligation that charges the United States
with the duty to protect tribal treaty rights, assets, resources, and
lands. In addition, there is a duty to implement federal law mandates
regarding American Indian and Alaska Native tribes and villages. The
Supreme Court has indicated that the doctrine entails legal duties,
moral obligations, and the fulfillment of expectations and
understandings that have developed from the relationship of the United
States and federally recognized tribes. The federal government is
charged with acting fairly, justly, and honestly in the utmost good
faith and with sound judgment and prudent in dealing with tribes
(Assinibione and Sioux Tribes vs. Board of Oil and Gas Conservation,
1986). The trust responsibility applies to tribes and individuals.
The Assistant Secretary-Indian Affairs is responsible for carrying
out the Interior Department's trust responsibilities and must promote
economic well-being and self-determination. The Secretary is charged
with maintaining the federal government-to-government relationship
between the United States and federally recognized tribes. The BIA's
Mission Statement describes their relationship with American Indian and
Alaska Native people as:
``The BIA's mission is to enhance the quality of life, to
promote economic opportunity, and to carry out the
responsibility to protect and improve the trust assets of
American Indians, Indian tribes and Alaska Natives. We will
accomplish this through the delivery of quality services,
maintaining government-to-government relationships within the
spirit of self-determination.''
Within the BIA is the BIE, which is charged with providing quality
education opportunities for Native students. The United States
government has utterly failed in satisfying the federal trust
responsibility owed to tribes by refusing to properly manage, account
for, and administer the JOM program. Through inaction, failure to
satisfy basic administrative requirements, and complete disregard of
Congressional mandates regarding this program, the BIA is denying over
ninety percent of Indian students the trust responsibility it is
charged with carrying out. There is both a legal and moral component to
the trust responsibility, based in specific statutes as well as Supreme
Court rulings. Under the Administrative Procedure Act, tribes may bring
cases to force action to honor the doctrine of federal trust
responsibility.
In June 2014, President Obama made his first visit to Indian
Country and announced his administration's plans to focus on Indian
education, and reform the BIE. The President's proposals indicate an
understanding of the need for reform in the area of Indian education,
yet focusing policies on Bureau operated schools misses the mark, as
only seven percent of Native students attend these schools. The reform
needs to extend to all Native students, no matter what school they
attend. Additionally, in August 2014 Interior Secretary Jewell issued a
Secretarial Order reaffirming the Department of the Interior's trust
responsibilities to federally-recognized tribes and individual
beneficiaries.
The federal trust responsibility is one of both moral and legal
obligations that the federal government is required to meet. It is the
federal government's duty to ensure protection of Indians--from their
assets, resources, land, health services, and education. Both the
President's visit and the Secretary's order indicate the
Administration's understanding of their trust responsibility and that
Indian Country is being let down; that the federal government is
failing to live up to their trust responsibility. Providing the funds
to ninety-three percent of Indian students to which they are entitled
is part of that responsibility, but first those students must be
counted. The usage of Census data when accounting for the JOM program
is the first step in the government fulfilling their responsibility.
Conclusion
As Secretary Jewell noted in the June 2014 Native Youth Report
released when President Obama embarked on his first presidential visit
to Indian Country: ``The future of Indian Country rests on ensuring
American Indian children receive a world-class education that honors
their cultures, languages and identities as Indian people.''
On behalf of the over 1.0 million Indian children eligible for JOM,
I would like to thank you again for consideration of S. 2842 so quickly
after its introduction. After 25 years of waiting for any action by
Congress or the Administration to rectify this shameful situation, we
are hopeful this Committee's quick action on the bill is an indication
that things may be headed in the right direction. Thank you.
Attachments
December 17, 2014
The Honorable Sally Jewell,
Secretary,
U.S. Department of the Interior,
Washington, DC.
Re: Johnson-O'Malley Supplemental Indian Education Program
Student Count Update
Dear Secretary Jewell:
On behalf of the National Indian Education Association (NIEA), the
National Congress of American Indians (NCAI), the National Education
Association (NEA), and the National Johnson O'Malley Association
(NJOMA), we urgently request an update to the student count under the
Johnson-O'Malley Supplemental Indian Education Program (JOM (25 CFR
273)). As national organizations that advocate on behalf of tribes and
Native students across the country, it is important that we call your
attention to the continued need to update the student count within the
Bureau of Indian Affairs (BIA).
Despite directives by Congress in Fiscal Years 2012 and 2014 in the
House Interior, Environment, and Related Agencies Appropriations Bills,
the U.S. Department of the Interior (Department) has yet to make
updating the student count a priority, which inhibits the intent and
integrity of a program that is vital to the success of Native students.
Given the lack of progress on securing an adequate student count and
the significant undercounting of students who should be eligible to
participate in the program, our organizations recommend that the
Department utilize existing data, such as that from the U.S. Census,
until the Department works with tribal communities to identity their
actual student counts.
The Department currently uses Census data for existing Indian
programs, including the Workforce Investment Act, the Indian Housing
Block Grant program, the Tribal Transportation program, and other
programmatic formulas. Similarly, the BIA utilizes Census data for its
American Indian Population and Labor Force Reports, which Congress
regularly uses to inform policymaking decisions regarding tribal
programs.
To facilitate this temporary solution through existing and readily
available data, our organizations call for greater coordination among
the Department, the U.S. Census Bureau, and the White House Office of
Management and Budget to ensure that Census data collection is
accurately utilized to benefit Native students eligible for JOM. We
steadfastly believe the same justifications for usage of Census data in
other tribal programs apply to the JOM program and should be utilized
until the Department gathers accurate student count information.
We urge the Department to take immediate action regarding the
utilization of Census data in the JOM program in order to alleviate a
longstanding problem that was not created by tribes, but whose citizens
and students are significantly impacted by inaccurate and incomplete
data and extensive bureaucratic delays. As such, our organizations
passed resolutions (NIEA Resolution 2014-19 and NCAI Resolution ATL-14-
039), which call for the upholding of the federal government's trust
responsibility through the use of Census data for updating JOM student
counts.
We appreciate the work you have done to emphasize Native students
this year and we look forward to your leadership in making the
requisite administrative policy changes in order to provide adequate
JOM funding to our students. We request that you meet with our
organizations and JOM experts prior to year's end in order to discuss
the JOM student count, utilizing the Census data as a temporary remedy,
and ensuring the BIA ultimately modernizes the JOM program with
sustainable future funding levels and greater accuracy through
coordination and consultation with tribal communities. By working
together we can all ensure that Native students are equipped with
adequate resources and opportunities to foster positive academic,
social, and economic outcomes for the future generation of leaders
across Indian Country.
Sincerely,
Melvin Monette, President Lily Eskelsen Garcia, President
National Indian Education Association National Education
Association
Brian Cladoosby, President Carla Mann, President
National Congress of American Indians National Johnson-
O'Malley Association
______
The National Congress of American Indians--Resolution #ATL-14-039
title: supporting the utilization of u.s. census data for updating the
johnson-o'malley student count
WHEREAS, we, the members of the National Congress of American
Indians of the United States, invoking the divine blessing of the
Creator upon our efforts and purposes, in order to preserve for
ourselves and our descendants the inherent sovereign rights of our
Indian nations, rights secured under Indian treaties and agreements
with the United States, and all other rights and benefits to which we
are entitled under the laws and Constitution of the United States, to
enlighten the public toward a better understanding of the Indian
people, to preserve Indian cultural values, and otherwise promote the
health, safety and welfare of the Indian people, do hereby establish
and submit the following resolution; and
WHEREAS, the National Congress of American Indians (NCAI) was
established in 1944 and is the oldest and largest national organization
of American Indian and Alaska Native tribal governments; and
WHEREAS, the National Johnson-O'Malley Association (NJOMA) is the
elected advocate representing students, ages 3 through high school, who
are enrolled in or eligible for enrollment in Federally-recognized
tribes and not attending or served by Bureau of Indian Education (BIE)
schools, and currently being served from respective tribal jurisdiction
boundaries and service areas; and
WHEREAS, NCAI and NJOMA have established a consensus that the
academic, social and economic well-being of our Indian and Johnson-
O'Malley (JOM) students are our highest priority; and
WHEREAS, the JOM funding and the certified student count of 278,000
has been frozen at its 1995 level; the current student count of 321,250
was updated by the BIE in 2012; however, according to data collected by
the U.S. Census Bureau, in 2010 there were 798,486 American Indian and
Alaska Native alone students in the age group eligible to receive JOM
assistance, and 1,469,722 American Indian and Alaska Native alone or in
any combination students, 93 percent of whom attend Public Schools,
which leaves more than 400,000 students with unmet needs; and
WHEREAS, without continued and appropriately assumed levels of
annual Congressional funding, JOM programs that foster specialized,
culturally sensitive and unique educational programs that develop
leadership skills of future tribal leaders necessary to promote
positive academic, social and economic changes in Indian communities
will slowly cease to exist; and
WHEREAS, the United States Congress is not being annually informed
of positive impacts and outstanding achievements of the supplement
education programs provided by JOM funds; nor are sufficient steps
being taken to insure the full participation of all eligible Indian
students and the public schools they attend.
NOW THEREFORE BE IT RESOLVED, that NCAI joins NJOMA, the National
Indian Education Association (NIEA), the United South and Eastern
Tribes (USET) and the Tribal Education Departments National Association
(TEDNA), in support of efforts to use U.S. Census data for a student
count for the JOM program and for funding level determinations; and
BE IT FURTHER RESOLVED, that NCAI calls for the use of a uniform
allocation funding formula based on U.S. Census data as it is currently
being the most accurate projection of the JOM-eligible student
population; and work with tribal communities to identify their actual
count; and
BE IT FURTHER RESOLVED, that NCAI welcomes the opportunity to work
with NJOMA, NIEA, USET, TEDNA and other stakeholders in developing and
enacting federal policy and regulatory measures the modernize and
position the Supplemental Indian Education Program (known as the
Johnson-O'Malley Program) as a sustainable program whose future funding
levels are adequate for assistance of all eligible students to achieve
academically so they may become the future leaders of tribal nations
and promote positive academic, social and economic changes for future
generations; and
BE IT FINALLY RESOLVED, that this resolution shall be the policy of
NCAI until it is withdrawn or modified by subsequent resolution.
CERTIFICATION
The foregoing resolution was adopted by the General Assembly at the
2014 Annual Session of the National Congress of American Indians, held
at the Hyatt Regency Atlanta, October 26-31, 2014 in Atlanta, Georgia,
with a quorum present.
______
National Indian Education Association (NIEA)--Resolution 2014-19
title: support utilizing u.s. census data for updating the johnson
o'malley student count
WHEREAS, we, the members of the National Indian Education
Association (NIEA) of the United States, invoking the divine blessing
of the Creator upon our efforts and purposes, in order to preserve for
ourselves and our descendants the inherent sovereign rights of our
Indian nations, rights secured under Indian treaties and agreements
with the United States, and all other rights and benefits to which we
are entitled under the laws and Constitution of the United States, to
enlighten the public toward a better understanding of the Indian
people, to preserve Indian cultural values, and otherwise promote the
health, safety and welfare of the Indian people, do hereby establish
and submit the following resolution; and
WHEREAS, the National Indian Education Association was incorporated
in 1970 and advances comprehensive educational opportunities for
American Indians, Alaska Natives, and Native Hawaiians throughout the
United States.; and
WHEREAS, the National Johnson-O'Malley Association (NJOMA) is the
elected advocate representing students, ages 3 through high school, who
are enrolled or eligible for enrollment in federally-recognized tribes,
not attending or served by Bureau of Indian Education (BIE) schools,
and currently being served from respective tribal jurisdiction
boundaries and service areas; and
WHEREAS, NIEA and NJOMA have established a consensus that the
academic, social, and economic well-being of our Native students are
our highest priority, regardless of where they attend school; and
WHEREAS, according to 25 CFR 273.1, the purpose of the Johnson-
O'Malley (JOM) program is to meet the specialized and unique
educational needs of Indian children attending public and some tribal
schools through the use of supplemental education programs, and
WHEREAS, the BIE completed an inaccurate and unofficial student
count in 2012 resulting in the continued use of the outdated certified
student count of 278,000 from 1995; and
WHEREAS, according to the U.S. Census Bureau, there were 798,486
American Indian and Alaska Native students (alone) in the JOM-eligible
age group, and 1,469,722 American Indian and Alaska Native students
(alone or in any combination) in 2010, forcing more than 400,000 Native
students to attend school with unmet needs; and Census data is
regularly collected, reliable information upon which the federal
government regularly relies on for many other programs, including
tribal; and
WHEREAS, without continued and accurately assumed levels of annual
congressional funding, JOM programs that foster specialized,
culturally-sensitive and unique educational programs will decrease in
its ability to serve the true number of Native students eligible for
JOM assistance; and
WHEREAS, federal agencies continue to forego providing accurate and
timely JOM student count information to the United States Congress nor
are sufficient steps being taken to guarantee the full participation of
all eligible Native students and the public schools in which they
attend;
NOW THEREFORE BE IT RESOLVED, that NIEA joins the NJOMA, the
National Congress of American Indians (NCAI), the United South and
Eastern Tribes (USET), and the Tribal Education Departments National
Association (TEDNA) in support of efforts to use U.S. census data for a
student count for the JOM program and for funding level determinations;
and
BE IT FURTHER RESOLVED, that NIEA calls for the use of a uniform
allocation funding formula based on U.S. census data after it has
determined the most accurate depiction possible of the JOM-eligible
student population; and
BE IT FURTHER RESOLVED, that NIEA welcomes the opportunity to work
with NJOMA, NCAI, USET, TEDNA, and other stakeholders in developing and
enacting federal policy and regulatory measures to modernize and
position the Supplemental Education Program (known as the Johnson-
O'Malley program) as a sustainable program whose future funding levels
are adequate for assist all eligible students achieve academically so
they may become the future leaders of tribal nations and promote
positive academic, social, and economic changes for future generations;
and
BE IT FINALLY RESOLVED, that NIEA recognizes the immediate nature
and timely need to address this issue and therefore will officially
request within two weeks immediate action pertaining to this issue
within the Department of the Interior, the Bureau of Indian Education,
and the United States Congress; and
CERTIFICATION
I do hereby certify that the following resolution was dully
considered and passed by the National Indian Education Association on
October 18, 2014 at which time a quorum of the membership was present.
Melvin Monette, President
______
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The Chairman. Thank you for your testimony. We will start
with rounds of questioning. I would like to start with Senator
Daines.
Senator Daines. Thank you, Mr. Chairman. As I mentioned
earlier, the Johnson-O'Malley program benefits thousands of
tribal students across the state of Montana. It is critical
that the department of Interior gather updated information to
ensure that all eligible Native American students have the
tools that they need to learn.
Mr. Black, do you know approximately how many tribal
students are estimated to qualify for the Johnson-O'Malley
program who aren't currently being covered?
Mr. Black. I don't have that information, sir.
Senator Daines. I understand that March of last year,
Interior stated that they would consult with tribes who had
existing Johnson-O'Malley programs and other educational
organizations about the methodology that was being used to
allocate JOM funding based on the 2014 student count. I
understand these consultations happened in 2015. What were the
results of those consultations?
Mr. Black. We did approximately seven consultations around
the Country over the last year, in 2015. The results of that I
don't have with me right now, but I would be happy to get back
to you on that.
Senator Daines. Would the Department of Interior publish,
publicly, the results of those conversations?
Mr. Black. If they were official tribal consultations, they
would be public record. We record all of that information from
the consultation sessions.
Senator Daines. And has the Department of Interior begun
using the 2014 data as a basis to allocate the JOM funding?
Mr. Black. Right now, due to a number of factors, there are
still spirals, we didn't get all of the JOM contractors that
reported. So right now, there are some challenges as to how we
would be able to use that data in applying it toward some type
of a formula.
Senator Daines. So the answer is no, and that is because we
don't have all the data yet?
Mr. Black. Yes, I don't believe we have all the data. As I
stated, we had 391 of the JOM contractors respond and provide
date, of approximately 556 total contractors. So we are short
probably about 30 percent or so of our total contractors.
Senator Daines. So that gap, I did the quick math here, it
is about 72 percent of the contractors, there are 28 percent
you have not received the data from.
Mr. Black. Just to clarify, in 2012, we had more respond to
that. But then in 2014, some of them may not have re-responded
again. So some of those numbers, we would have to take a look
at together.
Senator Daines. So does BIA have or is BIA developing a
strategy to collect sufficient data to get responses from more
than 72 percent of the participating entities?
Mr. Black. Yes. They are currently looking at the process
that we used previously in 2012 and 2014, and looking for ways
we can improve the response rate. The JOM is a voluntary
program, so we don't have a mandatory tool that we can use to
require reporting at this point in time.
Senator Daines. If we told the contractor, you don't get
funding unless you respond, would that help?
Mr. Black. I am sure it probably would. We do not have that
ability right now.
Senator Daines. Why not add some teeth? What can we do to
put some teeth in this to ensure we get the data? This is the
problem, we have heard a lot of Senators talk about this gap,
where there are students being denied these resources because
we are not getting accurate data.
Mr. Black. I think that would be something we would be
happy to work with the Committee on and then get you background
information as far as ideas of how we can improve that
reporting.
Senator Daines. There is an old saying in business: you get
what you inspect, not what you expect. And to put some teeth in
this, some accountability, I know darned well if you said, you
don't get any funding unless you respond to the survey with
accurate data, I bet you that would fix the problem in about 24
hours.
Mr. Black. You are probably right.
Senator Daines. Just a suggestion. Are you aware the
Appropriations conference repots have since 2012 directed the
BIE in coordination with the Department of Education to count
the number of students eligible for the Johnson-O'Malley
program and recommend a methodology to distribute funds in the
future?
Mr. Black. Yes, that is my understanding. That is what
resulted in the 2012 and 2014 counts.
Senator Daines. And that by failing to do so, BIE is not
compliant with these directives?
Mr. Black. I understand that we did conduct the 2012 and
2014 counts and conducted the consultations.
Senator Daines. Yes, but the data, we all know, is
insufficient. A 72 percent score is barely a C. We are talking
about 157 contractors here that just didn't respond, which
represents thousands and thousands of students. So the last
question is, is there currently an estimated time line for the
Department to conduct an updated, accurate student count?
Mr. Black. That I would have to get back to you on,
Senator.
Senator Daines. I don't sense urgency in correcting this.
What do we have to do to get this problem fixed quickly?
Mr. Black. I think working together with the Committee on
this bill and other things or in different ways. And it is
definitely, it is not that there isn't a concern there to
address this. Our Bureau of Indian Education staff is working
very hard to try and address a number of these issues out
there. There are some challenges in collecting data. As I said,
it is a voluntary program. There are a number of things we need
to work on.
Senator Daines. I know this Committee would be more than
happy, what do we need to break that barrier down? That is what
this legislation is for, to try and correct this gap that is
happening. We have students who aren't getting the resources
they should be getting because we have inaccurate data.
Mr. Black. Right.
Senator Daines. Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Daines. Senator Heitkamp?
Senator Heitkamp. Thank you, Mr. Chairman. First, let me
express my gratitude, Chairman Trudell, for your service to our
Country. I conduct, every year, a Native American Veterans
Summit, and hear some of those same concerns that you expressed
today. It is almost tragic that not only do you have a treaty
right but also a right that was earned in service to this
Country and you have people begging for services.
So my great apologies for that. I know how critically
important making sure that our veterans are taken care of is,
not only to all of us, but certainly to the Native American
population in my State. So thank you for your testimony.
I want to turn to the Johnson-O'Malley student count. Mr.
Black, I will tell you that Senator Lankford's comments and
then building on that, Senator Daines' comments, and really
building on kind of an intent of this bill, is to try and
figure out how many people are out there, especially children.
And I want to make this point, everybody is talking about
cultural services. In North Dakota, these funds are used to buy
pens and paper. Foundational kinds of input for children whose
families couldn't otherwise afford it.
If we are truly going to do what we need to do in Indian
education or in Indian health care, we need to have data. We
need to know how many people are out there, what kinds of
services they need, where we are failing in providing services
and how we can improve programs by eliminating fraud, waste and
abuse and duplication. Streamlining what we need to do but then
making sure that we know where we are falling short. We can't
do that if we are cavalier about counts. And I know that you
know this. And I do appreciate your testimony supporting the
bill with some modifications.
But it speaks to a broader issue here, which is that, as I
have said in the past, way too often we silo Indian programs,
whether it is Indian education, Indian health care, Indian
housing. To that one child who is in school, they don't think
about, oh, well, that is what BIE is doing for me and this is
what Indian Health is doing for me and this is what NAHASDA is
supposed to be doing for me. They think about their condition
today.
This count is important not only for the Johnson-O'Malley
program, but it is important to understand where these children
are falling through the gaps. Because we know that Native
children, just from what we know, are probably the most
challenged ethnic group in the Country in terms of their
services.
So I want to thank you for your testimony, but I also want
to impress upon you the need to have, I think, a broader
commitment to responding to concerns, especially those of us on
this Committee who want to help, who want to better understand
what are the metrics.
Obviously, getting back to this contractor concern, because
it seems to me that your evaluation of your power may come from
this program being so-called voluntary. But obviously, sending
out something more than, here is the website, fill in the gaps,
might be helpful, even if it is voluntary. So what have you
done beyond saying, oh, the spreadsheet is up, fill in the
gaps, what have you done beyond that to encourage contractors
to comply?
Mr. Black. I think the Bureau of Indian Education made a
fairly broad sweep of letting everybody know that we were doing
these counts and the value of it through Federal Register
notices, Dear Tribal Leader letters, reaching out to the
National Indian education Association and other large national
organizations serving Indian students, to try and get the word
out that we were trying to collect all this data to get updated
information.
Now, I think some of the things that we have come up with
as far as what might have happened and what has affected our
rate is, some tribes and other organizations felt that they had
their 1996 count in and that was good enough, that the 2012
count could potentially cost them funding if their student
counts have gone down. So I think there may have been some
hesitancy to respond based on some of those factors. I think we
really need to work with everybody.
I know the Indian Education folks are working really hard
to evaluate what happened and how we can improve on this, and
what we can do to try and get better counts moving into the
future.
Senator Heitkamp. I have additional questions, but I will
reserve them for the second round.
The Chairman. Thank you, Senator Heitkamp. Senator Tester?
Senator Tester. I am just going to follow up on where
Senator Heitkamp was. I am assuming that you are going to try
to do this student count again in 2016, is that correct?
Mr. Black. That I don't know. I will have to get back to
you on that, Senator. I am not sure where they are.
Senator Tester. So let's assume you are. What would you do
differently than the last two counts, if in fact you have folk
who don't want to report because they are afraid their numbers
are going to go down? If we are going to get accurate numbers,
which I think is critically important, and I applaud the
sponsors of this legislation for doing that, what are you going
to do differently to get the info?
Mr. Black. I think it would be working really closely with
all the different groups that are out there. There again, even
a larger effort to get the word out that this is critical to
the JOM program to ensure we are providing services to all the
eligible students.
Senator Tester. And the numbers are good, but what is the
impact of getting the numbers correct if the funding stays the
same?
Mr. Black. The impact would be basically that you would get
less dollars per student.
Senator Tester. Right. Okay. Your testimony, Mr. Black,
your testimony stated that Department undertook various forms
of tribal consultation during the last two count update
attempts. The testimony of Ms. Mann says that the outreach was
very limited to one letter and one last-minute online
announcement posted right before the due date.
I have two questions. Number one is, is here testimony
correct? And if it is, is that the way we do consultation?
Mr. Black. No, my understanding is these were in-person
consultations, the seven that we did. There might have been a
couple of telephonic consultations in there. I would have to
get back to you on the exact.
Senator Tester. Okay. There are over 100 Johnson-O'Malley
programs out there?
Mr. Black. My understanding is we have approximately 556
JOM contractors.
Senator Tester. And we did how many consultations?
Mr. Black. Seven.
Senator Tester. Is that the kind of ratio we use? That is
not much percentage-wise.
Mr. Black. Generally, when we do consultations, sir, we try
and ensure that we reach out to all the affected areas, there
may be 100 contractors within a three-State region. I am just
throwing numbers out.
Senator Tester. Yes. So the seven consultations you did
were in different regions of the Country?
Mr. Black. Yes, I would have to get you the exact
locations, sir.
Senator Tester. You got a head nod behind you, so I am
assuming that is correct.
Mr. Black. Yes. They might have been combined with other
consultations is what he is telling me, yes.
Senator Tester. All right. Last hearing, you testified that
all BIA schools would be inspected this year. Can you give me a
time line on those inspections?
Mr. Black. Yes, sir. We have a goal to complete all the
inspections by August 31st. I got a report here just last week,
we are approximately a little over 50 percent of all of our
educational and detention facilities have been inspected to
date. We are on target to reach August 31st to have them all
inspected.
Senator Tester. Any of them in Montana that have been
inspected? You have three of them.
Mr. Black. I don't have the numbers and the exact date in
front of me. I think at least one of them has so far. I might
have to verify that.
Senator Tester. All right. I would love to know that.
At one of the last legislative hearings, the Department
indicated they were looking to develop a comprehensive long-
term construction plan to eliminate the backlog in BIE schools.
Mr. Black. Could you repeat that question, sir, I'm sorry?
Senator Tester. At one of the last legislative hearings,
the Department indicated they were working to develop a
comprehensive, long-term plan to completely resolve the BIE
backlog in construction of schools. Where are you guys at?
Mr. Black. That I will have to get back to you on, sir.
Senator Tester. Okay. Mr. Trudell, currently JOM student
eligibility is defined in regulation based on tribal membership
or a minimum blood quantum. It appears the bill changes that
definition. How do the Santee Sioux contracts define and
estimate the eligible student count?
Mr. Trudell. Our tribe contracts for Niobrara school
district, Santee school district and Sioux City school
district. And we have to, we count for, by tribal enrollment,
regardless of what tribe they are enrolled in. Because at Sioux
City there is a number of tribes and tribal affiliation. So we
basically go off their tribal records.
Senator Tester. Okay, so it is based on tribal membership
rather than blood quantum?
Mr. Trudell. Yes.
Senator Tester. Do you know what the blood quantum is
required for tribal membership?
Mr. Trudell. Not in all tribes, no. I know that our tribe
at one time amended our constitution, there was no blood
quantum as long as a parent was a member of the tribe at the
time of your birth and you were born while that parent was
residing on the reservation. I know that a lot of the tribes
are basically not blood quantum per se. They are more
historical, I guess, in essence to that, I don't know if you
are kind of following me. I realize a lot of the tribes in
Oklahoma are not blood quantum tribes.
Senator Tester. So how do you feel about using blood
quantum as a criteria?
Mr. Trudell. Well, if you want to know your pedigree, it is
pretty nice, I guess. But is it mandatory, you are either an
Indian or you are not an Indian, I guess. I am married to a
Yankton Sioux and I am a Santee Sioux.
Senator Tester. That is a tough combo.
Mr. Trudell. That is a really bad combo.
[Laughter.]
Senator Tester. Let me go to you, Carla, for a second. Let
me preface this a little bit. The House companion bill, 2842,
doesn't make any changes to the definition of eligible Indian
student. The Senate version does. What we learned during ESEA
reauthorization last year was just how controversial funding
formula changes can be. What does National JOM think about
changing the eligibility definition as is in this bill?
Ms. Mann. Thank you, Senator. The National Johnson-O'Malley
Association is not seeking any change in the Federal
regulations regarding the eligibility requirements.
Senator Tester. Okay. So you want it left the way it is
from an eligibility standpoint?
Ms. Mann. Okay. Why do you think the updates 2012 and 2014
didn't work?
Ms. Mann. I think it was, at the times that they sent out
the notifications, I think were both bad times of the year. The
first notification for 2012 came out in the Federal Register.
It came out the end of May, I think it was. The majority of the
school districts are starting to shut down, especially in
ranching country. They shut down early, usually before Memorial
Day.
The second time that they did the, and the one other thing
I want to point out, too, a lot of people don't read the
Federal Register or get the updates from the Federal Register.
Senator Tester. Right.
Ms. Mann. In 2014, we inquired as National Johnson-O'Malley
what the plan was for the student count for that year. That was
in July. They gave us a letter that was set to be sent out to
all Dear Tribal Leaders. That was sent out in the middle of
July.
On their website, there was no indication of where you go
to be able to fill out your members. It was difficult to find.
I think that has really contributed to the problems in getting
those numbers.
Senator Tester. So if you were doing it, what is the best
time of year to do this?
Ms. Mann. I would do it during the school year.
Traditionally, the Johnson-O'Malley student count was done the
first full week of October. By that time, it has kind of
settled down as far as enrollment.
Senator Tester. What do you mean by traditionally? I am
sorry I am taking so much time, Mr. Chairman.
Ms. Mann. When we did our student counts from before, prior
to 1994, we did them the first full week of October.
Senator Tester. Okay, so can I ask you, Mr. Black, because
what she says makes perfect sense to me, being a former
educator. End of school is the end of school, people are out
the door. Why wasn't it done in the fall? Why wasn't it
changed?
Mr. Black. I don't have an answer for you, Senator. I am
sorry. I will have to check with the education folks and find
out a little bit more on that. I would be happy to get back to
you.
Senator Tester. So that brings me to my last question, and
it is for you, Ms. Mann. Has the Department utilized resources
like your organization, National JOM Association, NCAI, or any
of the national Indian education groups, any of those folks? Do
you believe they have utilized those resources adequately or at
all?
Ms. Mann. The Bureau?
Senator Tester. Yes.
Ms. Mann. They ask them, they notified NIEA. I am not sure
if they notified NCAI and some of the other groups that support
the JOM program.
Senator Tester. We will go to the horse's mouth. Did you?
Mr. Black. Somewhere I have a list of the different groups
that we have reached out to. I know NIEA was one of them.
Senator Tester. Okay.
Mr. Black. I will get you a list.
Senator Tester. I think it is critically important to
utilize those, I will just tell you from my perspective, they
can do a lot of legwork for you. That is part of their job,
too, as far as why they were set up to help with communication.
Thank you for holding this hearing, Mr. Chairman, and I
want to thank you all for your testimony.
The Chairman. Thank you, Senator Tester.
Ms. Mann, just a little follow-up. With all this discussion
about the consultations, could you kind of clarify some of
those things for us, what your experience has been, any
thoughts you might have?
Ms. Mann. To be honest, the consultation process is, it is
a process where they come out, they ask questions and then we
are able to give responses. Personally, I don't like
consultation, because if they would have listened to the
members during the first consultation in 1994, had they
listened to Indian Country, then JOM wouldn't have changed, it
wouldn't have had the student count freeze.
So I believe that there are times when consultation may
work. But I believe for the majority of the time, the mind is
usually made up of how they were going to proceed, and then
they proceed. That is mostly my personal opinion. As far as
National JOM, we make sure that we have members that testify in
the different areas of the Nation to be able to be there at the
consultations.
The Chairman. Thank you.
I want to go to you, Mr. Black. The 2014 student count that
was submitted to the Bureau of Indian Education by the tribes,
tribal organizations, public schools, State education forums,
identified 341,126 Indian students that student counts were
mandated by Congress. The BIE never quite makes the accounting
official. So I understand that outstanding contracts did not
submit the numbers.
But why was the student count never really verified and
made official by the Bureau? Is there a reason for that?
Mr. Black. I would have to go back to exactly as to why. I
think it relates to a lot of the issues I have identified
already as not having, ensuring that we have all of the
contractors submitted and all of the student data. It is kind
of hard to verify and ensure that we are capturing the whole
environment.
The Chairman. Mr. Trudell, in your written testimony you
talk about the burdensome process of completing a financial
assessment before being seen at the VA, the co-pays that cause
an undue financial burden, all the things that you went
through.
One of the hardships you mentioned is travel, and the
length of time it takes a veteran to travel to the nearest VA
hospital. How far does a Santee Sioux veteran have to travel in
order to be seen at a VA facility? I know the distances are
great in Wyoming as well as where you are in South Dakota.
Mr. Trudell. The closest CBOC in Nebraska is, I believe,
O'Neill, Nebraska, which is approximately 60 some miles from
home. The best one in Nebraska close to us is in Norfolk, which
is 77 miles. And then either to Lincoln or Omaha for major
services. We also have the option of going to Wagner, South
Dakota, which is I think 50 some miles, 53 miles, 55 miles,
something of that nature, or to Sioux Falls, South Dakota,
which is 125 miles. Omaha is 100 and - well, actually from my
driveway to the VA hospital is 200 miles.
The Chairman. Ms. Mann, in your written testimony you
mentioned that the Johnson-O'Malley program is the one
remaining Federal program that puts the program under strict
control of a local Indian education committee, correct?
Ms. Mann. Correct.
The Chairman. Can you explain the benefits of a local
Indian education committee or local education committees and
the involvement in tribal communities compared to a program
that is run out of Washington, D.C.?
Ms. Mann. By having, actually due to Federal regulation,
the parent committee is the one to plan, implement and evaluate
the program. As we said, it is the only program that has those
Federal regulations. The parent committees can decide exactly
where they want their money to go for their students.
We have across the Nation a number of different programs.
It can be like school supplies, like Senator Heitkamp said, it
can be school supplies, it can be pay-to-play fees, lab fees,
it could be Native language programs, it could be culture
programs, programs to increase attendance. It could be any
number of things. That is one thing that the parents are able
to decide. They can decide where they want that money to go for
their school district. No other program allows that and allows
the parent committee to decide such an important program.
The Chairman. I was in Bethel, Alaska, a little earlier, a
number of Senators including members of this Committee, Senator
Murkowski, Senator Cantwell and others. We visited a school in
a place called Oscarville, which is down from Bethel. I took a
picture on a wall, there was one piece of brown paper towel
that you would use to wipe your hands, and it was scotch taped
on the wall. On it somebody had written, remember to use this
much paper towel, and a dollar sign. The money that you save is
spent on student activities, exclamation point, exclamation
point. I keep that with me as a reminder that every dollar
counts in those communities. So you are making local decisions,
as you just talked about. I think sometimes Washington loses
sight of how folks really at the local level are trying to make
every penny count and every penny matters to them. What they
don't spend on paper towels, they can use for other activities.
Senator Heitkamp made comments about school supplies and
other things. This is real, it is serious, it is vital to
education. I don't know if you have additional thoughts on
that.
Ms. Mann. I agree with everything that you say. With a lot
of States having budget cuts and not being able to provide some
of the resources that they ordinarily have for their students,
it has been really critical. That is where JOM, as long as they
are not supplementing a program in a school district and they
can supplant a program, it is very important for them to be
able to help with their students' education. The parents are
the ones that know best what they want for their kids. I know
all parents want the very best for their kids. But I think that
with the Federal regulations that are currently in place, with
that ability for them to make those decisions, it is really
important. By having it in the school district, it can help the
school in a number of things, like after-school tutoring,
something that the school wouldn't be able to provide otherwise
with budget cuts.
The Chairman. Thank you. Senator Heitkamp, a second round?
Additional questions?
Senator Heitkamp. Thank you, Mr. Chairman. I just want to
follow up a little bit on definitional issues, which have been
raised here, and just make sure that we are all on the same
page. And if we are not, if we have better ideas on how we can
do this, that we in fact have a conversation. Because this is
going to increasingly become a very difficult issue. It is
difficult today. But identifying someone as a Native child is
going to become increasingly difficult. As the chairman pointed
out, every tribe does it differently.
I know that Mr. Black, you expressed concern about the
bill's definition of eligible student, because we used a
definition that hasn't been used before, and it was a change
from the House bill. We included after local Johnson-O'Malley
contractors who mentioned that under current regulations, the
contractors provide resources and services to children who are
descendants in the first or second degree of tribal members. I
don't think there is any intention today to try and not count
those students.
Do you think that utilizing the House bill definition from
the regulations excludes the children that are already included
under JM, as you read this bill?
Mr. Black. It is my understanding that that possibility
might be there, that we would be excluding some children. I
will get you a more specific answer, though.
Senator Heitkamp. Yes. I think it is important, just
because we aren't going to solve this issue here. I think it is
important that we have ongoing discussions and dialogue,
because as we work through this particular issue, we could be
setting down a milestone that we don't want to set down, or be
creating yet another definition that would be used in yet
another program. But it does demonstrate some of the
complexities of what we are probably going to go through on the
census in terms of getting folks identified, and certainly what
we go through working with children.
Ms. Mann, if you have any comment about that, I would
appreciate hearing it now.
Ms. Mann. As I said before, we are not seeking any changes
in the Federal regulations regarding eligibility. It was a
discussion of our board that each tribe, through their
sovereignty, decides who they want as a member of their tribe.
If there is a blood degree quantum or not a blood degree
quantum, that is their decision. We didn't want to go against a
decision that could affect certain tribes.
So I think that we would like to make sure that we continue
to use the Federal regulations at this point, because of the
sovereignty of the individual tribes.
Senator Heitkamp. In the school district, especially when
we are dealing with a Bismarck school district or a Fargo
school district, that it doesn't have those, doesn't understand
those nuances, I think it becomes very difficult for
contractors to know that this student is Ojibwe, that is a
different rule than if they are Mandan, Hidatsa and Arikara. So
those is a complicated issue, but one that is only going to get
more complicated as time goes on and as we see more and more
people migrating on and off the reservations and on and off
Indian Country.
We will continue to work through this issue and try not to
disturb a whole lot of other stuff in the process while we are
looking at getting a count.
The Chairman. Thank you, Senator Heitkamp. Senator Daines?
Senator Daines. Thank you, Mr. Chairman. I want to shift
gears and talk a little bit about health care for Native
American veterans. In my home State of Montana, we have one of
the highest per capita veteran populations in the United
States. Tribal members enroll in the military at a higher rate
than any other minority. We have seen it in Montana, we see it
across the Country, that individuals serve as true examples of
bravery, of service, of patriotism, there is a reason they are
called warriors.
Unfortunately, when it comes to receiving quality, timely
health care from Federal agencies, tribal veterans are some of
the most disenfranchised, especially those who live in rural
communities. I applaud the work of Senators Thune and Rounds in
the Tribal Veterans Health Care Enhancement Act, which will
improve coordination of care between Indian Health Service and
the VA, as well as streamline care for tribal veterans.
Chairman Trudell, I would like first to thank you for your
service to our Country. Can you describe some of the challenges
you personally have faced in receiving health care as a tribal
veteran?
Mr. Trudell. My greatest was with VA, because I didn't have
a sick call record to speak of, other than shots and stuff. So
it was real hard for me to break into VA, even though I served
in Vietnam, and Agent Orange almost automatically qualifies you
for, well, it does automatically qualify you for VA services.
But I didn't get a rating until, tendonitis, I have had
tendonitis. I was rated about 10 percent hearing loss. Then I
had some EKGs that showed I had had a heart attack over a
period of time, a number of them. And couldn't get a rating on
my heart, even though ischemic heart is a by-product of Agent
Orange. I actually ended up having a heart attack in the VA,
and that is the only reason I got rated, I think.
So that is my experience. Other people have experienced,
there are other veterans that are experiencing that. I know the
difficulty with both, not only the co-pay that Indian Health
Service wasn't paying, but also for VA to serve those Vietnam
veterans. I can only speak for the Vietnam veterans, because
that is who I mostly deal with.
But if they do not recognize that in our situations, there
were no medical people around. If Grandma couldn't fix it, it
didn't get fixed. You didn't worry about going to a doctor, you
didn't have the money to do that, so you didn't, you just kind
of grew up not depending on medical. Even when you get in the
Army and it was available, if it wasn't killing you, there was
no sense in going to see a doctor.
Therefore, I don't think I am a unique person, I think that
is pretty common among Indian veterans, that they didn't go to
sick call. So we don't have a medical record to back up a lot
of the things that we are saying. With post-traumatic stress,
Indian Health Service is not, I don't even think VA is really
capable of handling all the post-traumatic stress that the
veterans are encountering. Some of it, I hid mine very well for
40 years. Then all of a sudden, it hits you.
Senator Daines. You had shared a story with my office about
a Native American veteran and the challenges he faced
coordinating a heart valve insertion.
Mr. Trudell. That is Dave Williams.
Senator Daines. Between the IHS and the VA. Would you mind
sharing that with us?
Mr. Trudell. His name is Dave Williams. I got that
confirmed yesterday. I had forgotten his name, and I was
talking to the office yesterday. So I did call back and confirm
that. VA did end up paying for that. But there was an argument
going on between VA and Indian Health Service as to who would
pay for his valve replacement. Happened to be in Flandreau,
where he lived, with another veteran from Flandreau, and his
wife, Dave Williams' wife, called us. She asked us if she could
visit with us. She was crying because her husband was going to
die.
So he came over, and she was just all shook up, because if
he didn't get that operation immediately, he would die. The
children, grandchildren would have no source of parental care
or grandparental care. We advised them just to go and if it
became a problem, then Flandreau Santees and the Santee Sioux
Nation of Nebraska, we're the same, they just happened to
divide some time back in the past, but we would join together
and we would take up his cause and see if we couldn't get it
resolved if it wasn't paid.
But I understand that VA did pay for it, Indian Health
Service continued to refuse to pay for it all the way to the
very end.
Senator Daines. Thank you, Chairman Trudell, and thanks for
your advocacy for your people. How these costs are covered
shouldn't be a question for these heroes any more, is the
bottom line.
I look forward to seeing the Tribal Veterans Health Care
Enhancement Act move through the legislative process. Thank
you.
The Chairman. Thank you, Senator Daines.
Thank you to each and every one of you for being here
today. I see no more questions. Members may submit written
questions for the record. I hope that you will be able to
respond to them. The hearing record will remain open for the
next two weeks. I want to thank all the witnesses for being
here today and for your testimony. Thank you.
This hearing is adjourned.
[Whereupon, at 3:48 p.m., the hearing was adjourned.]
A P P E N D I X
Prepared Statement of the Southcentral Foundation (SCF)
Thank you for the opportunity to submit testimony on behalf of the
Southcentral Foundation (SCF) and the 150,000 Native American people we
serve. SCF is a tribal organization that compacts with the Secretary of
Health and Human Services under Title V of the Indian Self-
Determination Act (ISDA) to provide primary care services to Alaska
Native patients within the Anchorage area and throughout the region.
SCF acts pursuant to tribal authority granted by Cook Inlet Region,
Inc., an Alaska Native regional corporation designated by Congress as
an Indian Tribe for contracting purposes under the ISDA.
For more than 25 years, SCF has carried out Indian Health Service
(IHS) programs under ISDA agreements. SCF provides medical, dental,
optometry, behavioral health, and substance abuse treatment services to
over 52,000 Alaska Native and American Indian beneficiaries living
within the Municipality of Anchorage, the Matanuska-Susitna Borough to
the north, and nearby villages. SCF also provides services to an
additional 13,000 residents of 55 Alaska villages covering an area
exceeding 100,000 square miles. Finally, SCF provides statewide
tertiary OB/GYN and pediatric services for approximately 150,000 Alaska
Native people. To do all this, SCF employs 2,000 people.
S. 2417 proposes to amend the Indian Health Care Improvement Act to
allow the Indian Health Service to cover the cost of a copayment of an
Alaska Native or American Indian veteran receiving medical care or
services from the Department of Veterans Affairs through the IHS
purchased and referred care (PRC) program. Although both federal
agencies provide health care services to certain qualified individuals,
the VA differs from IHS in that some services require a co-payment by
the eligible veteran. The IHS does not require a co-payment for
services provided at IHS or IHS funded facilities, nor does it require
a co-payment for purchased or referred care (PRC) services provided.
This bill attempts to address an issue that can arise in instances
where IHS cannot provide a service or treatment and the VA or a VA
provider is able to provide that service or treatment, and the Alaska
Native or American Indian veteran ends up with the responsibility of
the co-pay. If the Alaska Native or American Indian veteran had been
able to access the service or treatment through the IHS in the first
instance, he or she would not have been required to pay that co-pay.
In considering this bill, SCF would like the Committee to be aware
of the unique nature of the interactions between SCF and the VA in
providing for the healthcare needs of veterans in our service area.
Because the VA has not been able to sufficiently provide healthcare
services to veterans in rural areas like Alaska, many veterans'
healthcare needs are severely underserved. SCF serves over 1,000 non-
Native veterans in the Matanuska-Susitna Valley, through a
reimbursement MOU with the VA. Since 2012 when SCF entered this MOU, we
have been able to make great strides in addressing this gap in
healthcare delivery. In addition, we firmly believe--and our patients
would affirm, we think--that the quality of our healthcare delivery
greatly exceeds that of the VA in our region. We have been extremely
successful in growing our system and diversifying our array of
available health treatment so that we are able to provide most of the
specialty medical needs of our clients. Conversely, the purpose of the
IHS purchased and referred care line item is to pay for specialty
services or treatment that are not available through IHS facilities or
tribally contracted IHS facilities. Therefore, we do not believe that
SCF would utilize our PRC program to pay for the co-payments authorized
by this proposed bill: the veterans in our area have access to more
comprehensive and higher quality services with shorter wait times by
receiving services at SCF facilities rather than through the VA.
Although we recognize that the situation in many areas of the
country may make it appropriate for IHS to pay for VA services, and for
IHS to cover the resulting co-pays for Indian and Alaska Native
veterans in those cases, it is important for the Committee to ensure
that this bill would not require SCF to use our limited PRC allocation
to pay for services at VA facilities rather than our own. Also, we
think that there should be a greater focus on building a stronger
tribal health care delivery system for all Alaska Native and American
Indian people. While this bill would help the VA system, it would not
greatly help the tribal health care delivery system for Alaska Native
and American Indian people.
______
Prepared Statement of United South and Eastern Tribes, Inc.
The United South and Eastern Tribes Sovereignty Protection Fund
(USET SPF) is pleased to provide the Senate Committee on Indian Affairs
(SCIA) with the following testimony for the record of its May 11th
legislative hearing on S. 2417 and S. 2842. This testimony concerns S.
2417, the Tribal Veterans Health Care Enhancement Act, only. USET SPF
fully supports the goal of S. 2417, which is to ensure that American
Indian and Alaska Native (AI/AN) veterans receive the care to which
they are entitled without incurring debt. However, in light of the
federal government's unique trust responsibility to AI/AN people,
including veterans, this should be accomplished via the elimination of
cost-sharing for AI/AN served at VA facilities.
USET SPF is a non-profit, inter-tribal organization representing 26
federally recognized Tribal Nations from Texas across to Florida and up
to Maine. \1\ Both individually, as well as collectively through USET
SPF, our member Tribal Nations work to improve health care services for
American Indians. Our member Tribal Nations operate in the Nashville
Area of the Indian Health Service (IHS), which contains 36 IHS and
Tribal health care facilities. Our citizens receive health care
services both directly at IHS facilities, as well as in Tribally-
Operated facilities operated under contracts with IHS pursuant to the
Indian Self-Determination and Education Assistance Act (ISDEAA), P.L.
93-638.
---------------------------------------------------------------------------
\1\ USET SPF member Tribal Nations include: Alabama-Coushatta Tribe
of Texas (TX), Aroostook Band of Micmac Indians (ME), Catawba Indian
Nation (SC), Cayuga Nation (NY), Chitimacha Tribe of Louisiana (LA),
Coushatta Tribe of Louisiana (LA), Eastern Band of Cherokee Indians
(NC), Houlton Band of Maliseet Indians (ME), Jena Band of Choctaw
Indians (LA), Mashantucket Pequot Indian Tribe (CT), Mashpee Wampanoag
Tribe (MA), Miccosukee Tribe of Indians of Florida (FL), Mississippi
Band of Choctaw Indians (MS), Mohegan Tribe of Indians of Connecticut
(CT), Narragansett Indian Tribe (RI), Oneida Indian Nation (NY),
Passamaquoddy Tribe at Indian Township (ME), Passamaquoddy Tribe at
Pleasant Point (ME), Penobscot Indian Nation (ME), Poarch Band of Creek
Indians (AL), Saint Regis Mohawk Tribe (NY), Seminole Tribe of Florida
(FL), Seneca Nation of Indians (NY), Shinnecock Indian Nation (NY),
Tunica-Biloxi Tribe of Louisiana (LA), and the Wampanoag Tribe of Gay
Head (Aquinnah) (MA).
---------------------------------------------------------------------------
USET SPF recognizes that S. 2417 seeks to address the harmful
financial impacts of unpaid VA balances accrued by AI/AN Veterans who
have been referred to the Department of Veterans Affairs (VA) health
system by Indian health clinics. Whether delivered through the IHS or
the VA, AI/AN veterans have pre-paid for this care, both through the
cession of Tribal homelands and the defense of our nation. With some
AI/AN veterans facing collection over balances, we agree that there is
a critical need to ensure that our AI/AN veterans do not incur debt as
a result of accessing care at the VA.
AI/AN veterans, who may suffer from chronic conditions or injuries
sustained as a result of their service, often require more specialized
care than what underfunded Indian Health clinics are able to provide
and are referred to a VA facilities. Additionally, a VA facility may be
an AI/AN veteran's provider of choice. Regardless, VA is a vital access
point for AI/AN veterans, who continue to serve in the military at
higher rates per capita than any other group in this nation. It is an
enormous disservice to them to require out-of-pocket payments simply
because they receive care outside the IHS. However, IHS and Tribally-
operated health clinics, which Congress funds at only 60 percent of
demonstrated financial need, should not be compelled to pay the VA for
the cost of services delivered to AI/AN veterans. While we are aware
that this legislation seeks to correct a situation that occurred the
Great Plains Region of the IHS, we are concerned that it would apply to
all IHS Areas.
In 2014, IHS' average expenditure per patient was just $3,107
compared to $7,036 at the VA. Cost shifting from VA to IHS is not an
efficient use of federal resources and could exaggerate this deep
disparity, negatively impacting the delivery care within the Indian
Health System. Further, the federal government's trust responsibility
to AI/AN does not end with the IHS. While we note that the bill
contains provisions seeking to ensure that services to all IHS
beneficiaries are not diminished under this new authority, USET SPF
contends that the Indian Health System and AI/AN veterans are best
served through a waiver of cost-sharing entirely.
Congress has previously recognized the inconsistencies between the
federal trust responsibility to provide health care to AI/AN and the
assessment of premiums and cost-sharing via federal health programs. In
2009, Congress passed the American Recovery and Reinvestment Act, which
eliminated premiums and cost-sharing for AI/AN patients when accessing
services via Medicaid and the Children's Health Insurance Program. This
provision avoids the assessment of payments to individual AI/AN without
impacting already insufficient IHS funds. And it upholds the federal
trust responsibility by ensuring that care provided to AI/AN continues
to be delivered at no cost. With this in mind, we call for this policy
to be extended to all federal health care programs and facilities,
including the VA.
Although USET SPF supports the intent of S. 2417, we cannot support
it in its current form. We do support the opportunity for each IHS Area
to determine how to best serve its citizens. However, S. 2417 applies
to all IHS Areas and merely shifts the cost of care for AI/AN veterans
from the VA to a severely underfunded IHS. Although it diminishes
individual AI/AN veteran liability for cost-sharing, it remains unclear
whether it will have a net positive impact on the Indian health system.
In order for the United States government to more effectively meet its
sacred responsibility to AI/AN veterans, we recommend the advancement
of legislation eliminating cost-sharing for all services provided to
AI/AN veterans at VA facilities. We thank the Committee for drawing
attention to this important issue and look forward to partnering on a
solution that reflects both the federal trust responsibility and the
current limitations of the IHS budget.
______
National Indian Education Association
Washington, DC, May 24, 2016
Hon. John Barrasso, Chairman,
Hon. Jon Tester, Vice Chairman,
Committee on Indian Affairs,
United States Senate,
Washington, DC.
Re: Support for the Johnson-O'Malley Supplemental Indian
Education Program Modernization Act (S. 2842)
Dear Chairman Barrasso and Vice Chairman Tester:
On behalf of the National Indian Education Association (NIEA), the
oldest and largest Native organization representing over 2,500 Native
educators, students, teachers, parents, and tribal leaders, I am
writing to express our support for the reauthorization of the Johnson-
O'Malley Supplemental Indian Education Program Modernization Act (S.
2842). This bicameral effort builds upon Congress' focus on supporting
Native education in the 21st century. S. 2842 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.
In 1995, the BIA conducted a JOM student count for purposes of
providing distribution allocation information of JOM programmatic
funds. The 1995 JOM student count listed 271,884 students. In 2010, the
U.S. Census Bureau reported 798,486 American Indian and Alaska Native
students in the JOM-eligible age group, illustrating a substantial
portion of unserved students. Moreover, the National Johnson-O'Malley
(NJOM) estimates a high of $125 per students to a FY 2015 value of
$68.08 per student. This is due to the fact that JOM contractors have
been forced to provide services for an ever increasing population with
the same or less funding. FY 2011-2012 budget sequestration exacerbated
the funding levels by reducing overall JOM funding each year.
NIEA membership has shown their support for updating the JOM
student count along with funding that reflects this new number. NIEA
Resolution 2006-17 highlights the dire need of the JOM program as
supplementary aid and strongly opposed the FY 2007 BIA budget request
to eliminate JOM grants. Furthermore, NIEA Resolution 2014-19, which
requested support for utilizing U.S. Census data for updating the JOM
student count, remains a standing request of our organization. As such,
NIEA supports the Johnson-O'Malley Supplemental Indian Education
Program Modernization Act.
NIEA appreciates your hard work on funding critical educational
programs for American Indian, Alaska Native, and Native Hawaiian
students. We are asking for your continued support in ensuring that
these programs are protected by funding them at the levels already
approved by Congress.
Thank you,
Patricia Whitefoot.
Attachments
National Indian Education Association Resolution #06-17
title: to support the continuation of johnson o'malley funding
WHEREAS, the National Indian Education Association (NIEA) was
established in 1969 for the purpose of advocating, planning, and
promoting the unique and special educational needs of American Indians,
Alaska Natives, and Native Hawaiians; and
WHEREAS, NIEA as the largest national Indian organization of
American Indians, Alaska Native, and Native Hawaiian educators,
administrators, parents, and students in the United States, provides a
forum to discuss and act upon issues affecting the education of Indian
and Native people; and
WHEREAS, through its unique relationship with Indian nations and
tribes, the federal government has established programs and resources
to meet the educational needs of American Indians, Alaska Native, and
Native Hawaiians, residing on and off their reserved or non-reserved
homelands; and
WHEREAS, Native American populations have made significant advances
in achieving academic success as demonstrated by a study conducted in
2005 by the National Center on Education Statistics; and
WHEREAS, Native American students have attained high school
diplomas, as of March 2003, exceed the total of all other racial and
ethnic groups by 3.2 percent except African Americans; and
WHEREAS, the negation of the advancement made by Native American
populations through the invalidated references to the effect that the
Johnson O'Malley grants under the Tribal Priority Allocations are
duplicative of other Federal and state assistance programs and do not
address a focused goal for academic achievement; and
WHEREAS, the lack of evidence to prove that the elimination of
these grants will allow the BIA to focus its resources on the
requirements of the Bureau-funded school system, while also reducing
redundancy with other Federal programs; and
WHEREAS, the U.S. House of Representative admonished the Bush
Administration in 2006 for justifying its proposed termination of
Johnson O'Malley because of duplication of other federally supported
programs such as Title VII of No Child Left Behind Act of 2002, hence
substantiating that no such duplication exists; and
WHEREAS, the elimination of the Johnson O'Malley programs hold no
guarantees that the Indian Self Determination Act of 1975 and will
continue to be enforced according to the purpose of the regulations
established in Part 273 of Public Law 93-638; and
WHEREAS, Indian Self Determination and Education Assistance Act
were set forth to ensure the maximum participation of Indian
populations in the development of programs for eligible Indian
students; and
WHEREAS, the Snyder Act of 1921 is the primary authority that
governs the implementation of Indian education programs; and
WHEREAS, the Johnson O'Malley Act of 1934 program is a
supplementary aid program geared to offset the financial deficit of
unmet extraordinary and exceptional cases of need and that the federal
government will bear the added expense for services to the Indian
population in collaboration with state public school districts; and
NOW THEREFORE BE IT RESOLVED, that NIEA does hereby strongly oppose
the FY 2007 BIA budget request that proposes the elimination of Johnson
O'Malley (JOM) grants; and
BE IT FURTHER RESOLVED, that NIEA call upon Congress and the
Administration to restore the national JOM budget to the FY 1994
allocation of $24 million dollars with the current JOM student count
conducted under the Government Accountability Office to reinstate a
funding formula that will ensure the equitable distribution of funding
to address the specialized and unique educational needs that fall
outside the school's responsibilities.
CERTIFICATION
I do hereby certify that the following resolution was dully
considered and passed by the NIEA Board of Directors on November 30,
2006 at which a quorum was present.
Dr. Verlie Ann Malina Wright, President (2006-07)
______
National Indian Education Association Resolution 2014-19
title: support utilizing u.s. census data for updating the johnson
o'malley student count
WHEREAS, we, the members of the National Indian Education
Association (NIEA) of the United States, invoking the divine blessing
of the Creator upon our efforts and purposes, in order to preserve for
ourselves and our descendants the inherent sovereign rights of our
Indian nations, rights secured under Indian treaties and agreements
with the United States, and all other rights and benefits to which we
are entitled under the laws and Constitution of the United States, to
enlighten the public toward a better understanding of the Indian
people, to preserve Indian cultural values, and otherwise promote the
health, safety and welfare of the Indian people, do hereby establish
and submit the following resolution; and
WHEREAS, the National Indian Education Association was incorporated
in 1970 and advances comprehensive educational opportunities for
American Indians, Alaska Natives, and Native Hawaiians throughout the
United States.; and
WHEREAS, the National Johnson-O'Malley Association (NJOMA) is the
elected advocate representing students, ages 3 through high school, who
are enrolled or eligible for enrollment in federally-recognized tribes,
not attending or served by Bureau of Indian Education (BIE) schools,
and currently being served from respective tribal jurisdiction
boundaries and service areas; and
WHEREAS, NIEA and NJOMA have established a consensus that the
academic, social, and economic well-being of our Native students are
our highest priority, regardless of where they attend school; and
WHEREAS, according to 25 CFR 273.1, the purpose of the Johnson-
O'Malley (JOM) program is to meet the specialized and unique
educational needs of Indian children attending public and some tribal
schools through the use of supplemental education programs, and
WHEREAS, the BIE completed an inaccurate and unofficial student
count in 2012 resulting in the continued use of the outdated certified
student count of 278,000 from 1995; and
WHEREAS, according to the U.S. Census Bureau, there were 798,486
American Indian and Alaska Native students (alone) in the JOM-eligible
age group, and 1,469,722 American Indian and Alaska Native students
(alone or in any combination) in 2010, forcing more than 400,000 Native
students to attend school with unmet needs; and Census data is
regularly collected, reliable information upon which the federal
government regularly relies on for many other programs, including
tribal; and
WHEREAS, without continued and accurately assumed levels of annual
congressional funding, JOM programs that foster specialized,
culturally-sensitive and unique educational programs will decrease in
its ability to serve the true number of Native students eligible for
JOM assistance; and
WHEREAS, federal agencies continue to forego providing accurate and
timely JOM student count information to the United States Congress nor
are sufficient steps being taken to guarantee the full participation of
all eligible Native students and the public schools in which they
attend;
NOW THEREFORE BE IT RESOLVED, that NIEA joins the NJOMA, the
National Congress of American Indians (NCAI), the United South and
Eastern Tribes (USET), and the Tribal Education Departments National
Association (TEDNA) in support of efforts to use U.S. census data for a
student count for the JOM program and for funding level determinations;
and
BE IT FURTHER RESOLVED, that NIEA calls for the use of a uniform
allocation funding formula based on U.S. census data after it has
determined the most accurate depiction possible of the JOM-eligible
student population; and
BE IT FURTHER RESOLVED, that NIEA welcomes the opportunity to work
with NJOMA, NCAI, USET, TEDNA, and other stakeholders in developing and
enacting federal policy and regulatory measures to modernize and
position the Supplemental Education Program (known as the Johnson-
O'Malley program) as a sustainable program whose future funding levels
are adequate for assist all eligible students achieve academically so
they may become the future leaders of tribal nations and promote
positive academic, social, and economic changes for future generations;
and
BE IT FINALLY RESOLVED, that NIEA recognizes the immediate nature
and timely need to address this issue and therefore will officially
request within two weeks immediate action pertaining to this issue
within the Department of the Interior, the Bureau of Indian Education,
and the United States Congress; and
CERTIFICATION
I do hereby certify that the following resolution was dully
considered and passed by the National Indian Education Association on
October 18, 2014 at which time a quorum of the membership was present.
Melvin Monette, President.
______
Response to Written Questions Submitted by Hon. Jon Tester to
Michael S. Black
Question 1. Will this Resource Center provide technical assistance
and administrative oversight previously provided by the JOM Director?
Answer. Yes, the new Johnson-O'Malley Center will provide support
and technical assistance to all tribal Johnson-O'Malley contractors and
will share best practices regarding the use of JOM funds.
While the new Johnson-O'Malley Center works directly with JOM
contractors, the national JOM coordinator in DC will provide policy
direction to the Center, will support the JOM program within the
Department and will liaise with Congress.
During the consultations held throughout the country, the Bureau of
Indian Education heard from tribal leaders of their continued deep
interest in the JOM program. In particular, during the BIE's
consultations in Oklahoma, the BIE learned that tribal leaders were
mostly concerned about Native youth attending public schools rather
than BIE-funded schools (there are only three BIE-funded schools and
two dormitories in Oklahoma). Because of these concerns, and the need
for increased technical assistance regarding the JOM program, BIE
proposes to transform the BIE Education Line Office in Oklahoma City
into a national Johnson-O'Malley Center. BIE chose the Oklahoma City
ELO because that office already performs a significant amount of
evaluation and training for 148 tribal JOM contractors, as a result of
the high concentration of JOM contracts in Oklahoma.
Question 2. Is this Johnson-O'Malley Resource center currently in
operation and, if not, when will it be?
Answer. The new Johnson-O'Malley Center will replace the existing
Oklahoma City ELO early next year.
Question 3. What improvements to the operation of the JOM program
should contractors, tribes and Native families expect to see once this
Resource Center is operational?
Answer. The improvements contractors, tribes, and Native families
can expect to see with the addition of the new Johnson-O'Malley Center
are dedicated contracting assistance from staff and timely responses to
requests for technical assistance.
Question 4. Is it correct that the eligibility change was made as
the result of the Zarr v. Barlow decision or is there another reason?
Answer. While Zarr v. Barlow, 800 F.2d 1484 (9th Cir. 1986), is
instructive, BIE made the student eligibility change in response to a
more recent case, Nevada Urban Indians v. United States, U.S. Dist.
Court for the District of Nevada, CV-N-90-238-BRT, (Sept 12, 1990)(The
Sept 12, 1990 Order Granting Preliminary Injunction and the Nov. 1,
1990 Stipulation and Order attached). Since settling that case, BIE has
considered that students who are members of a federally recognized
tribe or who are \1/4\ or more degree Indian blood can be eligible for
JOM services. BIE's intent is to have eligibility requirements for all
BIE-funded programs that are consistent with Congressional intent for
the program, which is to authorize contracts for the education of
eligible Indian students enrolled in public schools and previously
private schools.
Question 5. What steps did BIE undertake to inform all JOM
contractors of this change? If possible, please provide a copy of the
original memorandum where this change was outlined and any additional
materials advertising the update to contracts.
Answer. As indicated in the response to the previous question, BIE
issued a memorandum explaining the new eligibility requirements and the
reason for the change on June 4, 1991. The original memorandum is
attached, as are copies of the recent ``Dear Tribal Leader'' letters, a
copy of a memo reiterating the eligibility change, and pages from
various handbooks, PowerPoint presentations, and Federal Register
notices that reference the eligibility requirement of tribal membership
``or'' \1/4\ degree. In addition, BIE has plans to update the outdated
regulation in the near future as reflected in the Unified Agenda.
Question 6. Is the Department confident that all JOM contractors
are currently aware of this change away from the regulatory definition
of eligibility, and is the Department aware of any variation in how JOM
contractors might interpret student eligibility?
Answer. The Department has announced through multiple
communications the student eligibility requirements, including letters,
memorandums, emails, handbooks, oral and video presentations, and
public announcements. However, it is always a possibility that the
appropriate individuals have not have received communications after
they have been disseminated.
______
Response to Written Questions Submitted by Hon. Heidi Heitkamp to
Michael S. Black
Question 1. According to your testimony, the Department notes that
one provision of S. 2842 raises constitutional concerns under the
Recommendation Clause. Could you please specify the Department's
preference for addressing this concern?
Answer. The Administration's concern is that section 7(d)(4)(A) of
the Johnson O'Malley Act, as added by section 2 of S. 2842 would
require the Secretary to recommend budget legislation and, furthermore,
would constrain the Secretary's discretion in what to recommend,
regardless of whether the President wishes to recommend any legislation
as part of his legislative program. We would recommend that this be
addressed by either changing the word ``shall'' to ``should'' in
section 7(d)(4)(A)) or otherwise making the requirement discretionary
by inserting ``as appropriate'' after ``legislation in section
7(d)(4)(A).
Question 2. I would appreciate the Department elaborating on Mr.
Black's verbal testimony from May 11, 2016 hearing in regards to
potential for students outside this eligibility criteria being served
under JOM. To what extent are contractors providing JOM services to
students eligible under Elementary and Secondary Education Act Title VI
programmatic funding--such as children who are descendants, in the
first or second degree, of tribal members--instead of using the JOM
eligibility criteria?
Answer. The number is unknown. 25 CFR Sec. 273.32 allows non-
eligible students to participate in a JOM program, but JOM funds must
be prorated to cover the participation of only eligible Indian
students, except where the participation of non-eligible students is so
incidental as to be de minimis. Such de minimis participation must be
approved by the local program's Indian Education Committee.
For comparison, 448 possible JOM contractors submitted a JOM count
of 341,126 in 2014. For FY 2016, the Department of Education provided
1,293 Indian Education Formula Grants serving 468,719 students. For
Title VI Indian Education formula grants, grantees can count, in
addition to members of Federally-recognized tribes, or descendants of
such members, in the first or second degree, as well as members of
State-recognized tribes.
Question 3. If the bill utilizes language as currently written in
25 Section 273.12 of the Code of Federal Regulations, would this
definition exclude students currently served by JOM contractors? How
many students could potentially be excluded or face disruption in JOM
services?
Answer. Yes, but the number is unknown. The eligibility requirement
listed below has been provided contractors since 1991. All students
eligible for the current JOM program were born after 1991. Guidance
provided to the public when the request for both the 2012 and the 2014
JOM student counts were issued included this language: ``Eligible JOM
students are Indian students, age 3 through grade 12 enrolled in public
schools, except those enrolled in Bureau sectarian or operated schools.
Such students must be (1) a member of a Tribe or (2) at least \1/4\ or
more degree of Indian blood and recognized by the Secretary of the
Interior as eligible for BIE services.''
______
*Response to the following questions was not available at the
time this hearing went to print*
Questions for the Record to Roger Trudell submitted by Senator
Tester:
S. 2417 would make allowances for the IHS to cover the cost of
these copays at VA facilities. As a member of both the Veterans Affairs
Committee and the Indian Affairs Committee, I have heard how many times
how stretched resources can be at VA and IHS facilities. However, the
Federal Government's treaty and trust responsibility does not end at
the IHS.
Question. Given the limited resources of both health care systems
and the trust and treaty responsibilities of the entire Federal
Government, would it make more sense to exempt American Indian and
Alaska Native veterans from copays at the VA?
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