[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



[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]





                         U.S. GOVERNMENT PUBLISHING OFFICE 

23-556 PDF                     WASHINGTON : 2017 
-----------------------------------------------------------------------
  For sale by the Superintendent of Documents, U.S. Government Publishing 
  Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; 
         DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, 
                          Washington, DC 20402-0001












                      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

                              ----------                              
                                                                   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

                              ----------                              


                        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.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



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
                                 ______
                                 
 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
                                
                                 
                                 
                                 

    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?

                                  [all]