[Senate Hearing 115-76]
[From the U.S. Government Publishing Office]


                                                         S. Hrg. 115-76

                      S. 943, S. 1223, AND S. 1285

=======================================================================

                                 HEARING

                               BEFORE THE

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 12, 2017

                               __________

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                      COMMITTEE ON INDIAN AFFAIRS

                  JOHN HOEVEN, North Dakota, Chairman
                  TOM UDALL, New Mexico, Vice Chairman
JOHN BARRASSO, Wyoming               MARIA CANTWELL, Washington
JOHN McCAIN, Arizona                 JON TESTER, Montana,
LISA MURKOWSKI, Alaska               AL FRANKEN, Minnesota
JAMES LANKFORD, Oklahoma             BRIAN SCHATZ, Hawaii
STEVE DAINES, Montana                HEIDI HEITKAMP, North Dakota
MIKE CRAPO, Idaho                    CATHERINE CORTEZ MASTO, Nevada
JERRY MORAN, Kansas
     T. Michael Andrews, Majority Staff Director and Chief Counsel
       Jennifer Romero, Minority Staff Director and Chief Counsel
                            
                            
                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on July 12, 2017....................................     1
Statement of Senator Barrasso....................................     4
Statement of Senator Cortez Masto................................    34
Statement of Senator Daines......................................    36
Statement of Senator Franken.....................................    37
Statement of Senator Heitkamp....................................     2
    Prepared statement...........................................     4
Statement of Senator Hoeven......................................     1
Statement of Senator Lankford....................................     5
Statement of Senator Merkley.....................................     5

                               Witnesses

Brainard, Hon. Warren, Chief, Confederated Tribes of Coos, Lower 
  Umpqua and Suislaw Indians of Coos Bay.........................    11
Dearman, Tony, Director, Bureau of Indian Education, U.S. 
  Department of the Interior.....................................     7
    Prepared statement...........................................     8
Mann, Carla, President, National Johnson-O'Malley Association 
  (NJOMA)........................................................    15
    Prepared statement...........................................    16
Wharton, Donald R., Senior Attorney, Native American Rights Fund.    12
    Prepared statement...........................................    13

                                Appendix

Begaye, Hon. Russell, President, Navajo Nation, prepared 
  statement......................................................    43
Gentry, Hon. Donald C., Chairman, Klamath Tribes, prepared 
  statement......................................................    44
Parrish, James, Executive Director of Education and Shane 
  Haddock, Director of JOM. Choctaw Nation of Oklahoma, joint 
  prepared statement.............................................    46
Letters submitted for the record by:.............................
    Kirsten Baesler..............................................    49
    Yatibaey Evans...............................................    48
    Hon. James R. Floyd..........................................    51
    Hon. Dave Flute..............................................    49
    Joy Hofmeister...............................................    47
    Hon. Faron Jackson, Sr.......................................    47
    Mary Jane Miles..............................................    52
    Jacqueline Pata..............................................    50
    Gloria Sly...................................................    50
Response to written questions submitted by Hon. Heidi Heitkamp 
  to:
    Tony Dearman.................................................    52
    Carla Mann...................................................    53
    Donald R. Wharton............................................    54

 
                      S. 943, S. 1223, AND S. 1285

                              ----------                              


                        WEDNESDAY, JULY 12, 2017


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:30 p.m. in room 
628, Dirksen Senate Office Building, Hon. John Hoeven, 
Chairman of the Committee, presiding.

            OPENING STATEMENT OF HON. JOHN HOEVEN, 
                 U.S. SENATOR FROM NORTH DAKOTA

    The Chairman. I call the meeting to order.
    Good afternoon to our witnesses. Thank you for being here 
and of course also all of our Committee members. Senator 
Heitkamp is sitting in for Senator Udall as our Vice Chairman. 
I think he is having a little dental work done, so I am 
guessing he would rather be here but we understand that is 
important.
    Welcome, Senator Heitkamp.
    Today, the Committee will examine three bills: S. 943, the 
Johnson-O'Malley Supplemental Indian Education Program 
Modernization Act; S. 1223, the Klamath Tribe Judgment Fund 
Repeal Act; and S. 1285, the Oregon Tribal Economic Development 
Act.
    On April 26, 2017, Senator Heitkamp, along with Senators 
Daines and Lankford, introduced S. 943, the Johnson-O'Malley 
Supplemental Indian Education Program Modernization Act.
    Pursuant to the Johnson-O'Malley Act, the Bureau of Indian 
Education assists the Indian children enrolled in public 
schools where more than 90 percent of them attend. In my home 
State of North Dakota, during the 2016-17 school year, 10,262 
Native children, 83.6 percent of the Native children in grades 
K-12, attended North Dakota public schools.
    The types of services include dropout prevention, 
culturally relevant instruction assistance, and academic 
assistance such as tutorial services and school supplies. In 
some cases, the Johnson-O'Malley program may be the only means 
of academic assistance for even basic items such as school 
supplies.
    However, to date, the Bureau of Indian Education has not 
conducted an accurate or verifiable student count for program 
funding and distribution since 1995, more than 20 years ago. It 
is estimated that up to two-thirds of the Indian children may 
not be receiving assistance due to the lack of a current 
official student count. Since this program may be a lifeline 
for some Indian children, it is incumbent upon Congress and the 
Administration to do everything we can to support and improve 
it.
    The bill, S. 943, amends the Johnson-O'Malley Act to direct 
the Secretary of the Interior to provide for the full 
participation of all qualified Indian students eligible for 
this program. This bill would require the Secretary of the 
Interior to provide a more accurate student count of Indian 
students.
    The bill would further require the Government 
Accountability Office to provide a review and report on the 
implementation of this Act. It would also mandate the 
Department of the Interior to engage in negotiated rulemaking 
regarding the funding formula and eligibility definitions.
    I will note that North Dakota's Superintendent of Public 
Instruction, Ms. Kirsten Baesler, has sent a letter of support, 
and I will make that letter part of the record.
    On May 25, 2017, Senator Merkley introduced S. 1285, the 
Oregon Tribal Economic Development Act. It is co-sponsored by 
Senator Wyden. This legislation would allow five Indian tribes 
in Oregon to purchase, sell, lease, or otherwise convey fee 
land, without further congressional approval or oversight. In 
addition, S. 1285 provides that none of its provisions apply to 
land held in trust by the United States for the benefit of 
these tribes.
    The third bill the Committee will examine is S. 1223, the 
Klamath Tribe Judgment Fund Repeal Act. This legislation was 
introduced on May 24, 2017 by Senator Merkley and is co-
sponsored by Senator Wyden. S. 1223 repeals the Klamath Tribe 
Judgment Fund Act, which set forth a claim settlement 
distribution process for the Klamath Tribe.
    The bill is intended to allow distribution of claim 
settlements against the United States for the Klamath Tribe to 
proceed under the less cumbersome process in the Indian Tribal 
Judgment Funds Use or Distribution Act.
    I would now like to turn to Acting Vice Chairman, Senator 
Heitkamp, for her statement.

               STATEMENT OF HON. HEIDI HEITKAMP, 
                 U.S. SENATOR FROM NORTH DAKOTA

    Senator Heitkamp. Thank you, Chairman Hoeven, for calling 
this legislative hearing today to consider S. 943, S. 1223 and 
S. 1285. As said earlier, Senator Udall was unable to attend 
this afternoon and graciously offered me this opportunity to 
preside in his absence.
    I want to first thank all the witnesses for traveling so 
far today to present your important testimony. We know that 
comes at some cost to your organizations and tribes. We always 
appreciate it when we can hear something here in the United 
States Congress other than beltway speak.
    First, these are remarks written by my friend, Tom Udall. 
``S. 943 was introduced by my colleague, Senator Heitkamp, 
alongside Senators Lankford and Daines, that would help ensure 
that the Johnson-O'Malley Program, which is so critical, would 
serve all Native children. The Johnson-O'Malley Program was 
designed by parent committees and grantees to suit local 
individual needs of Native students.''
    ``It plays a critical role in supporting educational needs 
of Indian students by making sure Native students have school 
supplies, culturally-based extracurricular opportunities, 
academic tutoring and other critical tools to ensure a 
comprehensive learning environment. I look forward to this 
Committee working together to support programs like Johnson-
O'Malley that provide all Native students with resources and 
opportunities so they have the same chance at quality education 
as other students.''
    ``We owe Indian Country nothing less and we owe our Native 
youth nothing less. To that end, we need to work openly and 
directly with Native communities to reconcile available data 
and develop new eligibility student count structures. The two 
remaining bills that are the subject of this hearing, S. 1223 
and S. 1285, are non-controversial. They were introduced by our 
friend and colleague, Senator Merkley. These bills tie together 
to important topics, tribal sovereignty and economic 
development. S. 1223 would repeal the Klamath Tribal Judgment 
Fund Act. It is a remnant of the termination era that today 
limits the tribe's ability to direct how its own funds are 
actually spent.''
    ``S. 1228 would allow five tribes in Oregon to have more 
control over land they own. This legislation will potentially 
free up much needed private capital for investment back into 
those tribal communities. Together these bills give the tribes 
more autonomy over their own internal tribal affairs.''
    ``I look forward,'' meaning Tom, but I do also, ``to 
working with Senator Merkley to mark up these bills and move 
them forward for our consideration. Again, thank you to all the 
witnesses today. I look forward to hearing the testimony.''
    Mr. Chairman, for the record, I would like to introduce my 
opening statement, especially as it relates to Johnson-
O'Malley.
    The Chairman. Absolutely.
    Senator Heitkamp. Thank you.
    I just want to thank my co-sponsors, Senators Lankford and 
Daines. Senator Lankford and I work together a lot on 
government accountability. This is a program that drives us 
crazy. We cannot get a count, so we need to fix this problem.
    I also want to ask that the record include the statement by 
the National Congress of American Indians in support of our 
bill; the National Indian Education Association's letter in 
support of our bill; the Tribal Education Department's National 
Assembly's support of our bill; the North Dakota United Tribes 
of North Dakota's letter in support of our bill; the support of 
the North Dakota Department of Public Instruction, as Senator 
Hoeven said; and the Muscogee (Creek) Nation's letter in 
support of the Johnson-O'Malley bill being introduced and heard 
today.
    Senator Franken. And the Senate Red Head Caucus.
    Senator Heitkamp. Thank you. That is our deal.
    With that, Mr. Chairman, I thank you for calling this 
hearing and I again thank the witnesses.
    [The prepared statement of Senator Heitkamp follows:]

  Prepared Statement of Hon. Heidi Heitkamp, U.S. Senator From North 
                                 Dakota
    Thank you Chairman Hoeven for holding this hearing on my bill and 
others today. I also want to thank Senators Daines and Lankford for 
joining me in working to update student counts to better express the 
amount of resources needed for Native students that are served by the 
Johnson O'Malley or JOM program.
    As this Committee has so often heard, data is lacking across Indian 
Country. Because state agencies and policies continue to leave American 
Indians and Alaska Natives out of data collection efforts, data 
reporting, and analysis, Indian Country has become what the National 
Congress of American Indians calls the ``Asterisk Nation''.
    The Bureau of Indian Education has not been able to collect 
accurate data for Native students served by the JOM program for more 
than 20 years. It's time to make much needed updates so this program 
can successfully serve our Native youth. The bill I introduced would 
utilize Census data and other existing information to assist the Bureau 
of Indian Education in overcoming this obstacle that has plagued the 
JOM program since 1995. Even though the U.S. Census Bureau stated there 
were nearly 800,000 qualified American Indian and Alaska Native 
students in the JOM-eligible age group in 2010, we continue to use the 
1995 student count of just over 271,000 Native students. This disparity 
illustrates a substantial portion of unserved students.
    Since the 1934 enactment of the Johnson-O'Malley (JOM) act, funds 
under the program have provided critical support to Native students and 
their cultures in public schools--where more than 90 percent of Native 
students attend. Unfortunately, funding has been diminishing over time 
due to the lack of official and verified data, freezing the estimated 
number of eligible students to 1995 levels.
    As one of the fastest growing demographics, we must ensure that 
Native children receive the resources needed to achieve and sustain 
their cultures. These children deserve to be represented by accurate, 
verified data, not simply an asterisk.
    Now is the time to examine different methods, so that we can 
accurately portray need and then concentrate on getting essential 
resources to our country's most vulnerable students.
    Thank you again, and I look forward to finding solutions to this 
issue as well as any insights for strengthening the legislation so that 
it can best address the outdated student count and ensure that this 
program is able to achieve what it was intended to do.

    The Chairman. I want to acknowledge that Senator Merkley 
has joined us. We will offer him an opportunity to comment on 
his bill, but I would ask if other Senators would like to make 
opening statements? We will start with Senator Barrasso.

               STATEMENT OF HON. JOHN BARRASSO, 
                   U.S. SENATOR FROM WYOMING

    Senator Barrasso. Thank you very much, Mr. Chairman.
    I welcome the opportunity today to welcome back to the 
Senate one of today's witnesses from my home State of Wyoming, 
Ms. Carla Mann, who is here today to represent the National 
Johnson-O'Malley Association. She is a resident of Ft. Fort 
Washakie, Wyoming and the Wind River Reservation.
    She has visited my office a number of times over the last 
several years and has testified before this very Committee. In 
fact, she testified before the Committee last year on a 
previous version of Senators Heitkamp and Lankford's Johnson-
O'Malley bill.
    Ms. Mann, I appreciate your willingness to come to 
Washington to be with us today, and to lend your voice and 
experience to these important matters.
    Education, especially in Indian Country, deserves the 
attention of this Committee and the Bureau of Indian Education.
    Mr. Chairman, Ms. Mann is a tireless advocate on these 
issues and I am so pleased to help you welcome her to the 
Committee again, today.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Barrasso.
    Are there other opening statements? Senator Lankford.

               STATEMENT OF HON. JAMES LANKFORD, 
                   U.S. SENATOR FROM OKLAHOMA

    Senator Lankford. I would like to jump in on the Johnson-
O'Malley conversation as well. I appreciate Senators Heitkamp, 
Daines and all of our staff and how much work has gone into 
this and the ongoing conversation about how to be able to make 
sure this is right.
    The Johnson-O'Malley Program is extremely important for the 
people of my State and people around the Country. In fact, two 
of my staff members were recipients of the Johnson-O'Malley 
Program when they were in school.
    Let me tell you the value of this in Oklahoma and what it 
really means. As the Chairman mentioned, due to the lack of 
count and it being updated over the last 21 years, the Oklahoma 
Department of Education estimates we have 130,000 Indian 
students in my State; 11,000 of them are currently eligible for 
Johnson-O'Malley based on the fact the count has not been done 
in 21 years. That is a pretty large disparity.
    While we work through this process of trying to fix 
something that is unacceptable, I look forward to actually 
passing it through this Committee, getting it on the Floor, 
getting it passed, and getting this done.
    This is one of those things that should have been resolved 
a long time ago. I am glad we are doing more than talking about 
it and wishing it was different. I am glad we are working 
through the process of actually making sure it is different.
    I would like to ask unanimous consent to enter letters from 
the Choctaw Nation of Oklahoma in support of the Johnson-
O'Malley bill and from our State School Superintendent, Joy 
Hofmeister, in support of what has been done with this.
    I would ask unanimous consent that they be included in the 
record.
    The Chairman. Are there other Senators wishing to make 
opening comments? Senator Merkley.

                STATEMENT OF HON. JEFF MERKLEY, 
                    U.S. SENATOR FROM OREGON

    Senator Merkley. Thank you very much, Chairman Hoeven, for 
including these two bills that were introduced in partnership 
with Senator Wyden.
    I would like to acknowledge Chief Warren Brainard of the 
Confederated Tribes of Coos, Lower Umpqua and Suislaw Indians, 
who made a trip from Coos Bay to testify in support of S. 1285, 
the Oregon Tribal Economic Development Act.
    I would also like to acknowledge Don Wharton who is 
representing the Klamath Tribe. He will provide background on 
the need for the Klamath Tribe Judgment Fund Repeal Act.
    The Oregon Tribal Economic Development Act is about tribal 
sovereignty and economic development. Several months ago, the 
tribe reached out to my office about a problem they had in 
obtaining a commercial mortgage for a self storage property 
they purchased.
    The tribe had to pay out-of-pocket to purchase the 
facility, which is not sustainable for the tribe or for most 
tribes. At issue was an interpretation of the Indian Non-
Intercourse Act that would require tribes to get Federal 
approval to purchase, sell or lease fee lands owned by 
federally-recognized tribes.
    The Department of the Interior does not make this type of 
determination for non-trust lands. It is impractical to expect 
a tribe to get approval from Congress each time they want to 
obtain a mortgage for non-trust property.
    The bill does not impact trust lands. It simply grants the 
authority to tribes in Oregon to buy, sell or lease their non-
trust-owned land without further approval from the Federal 
Government.
    I look forward to working with the members of the Committee 
to move this bill forward.
    Let me turn to the Klamath Tribe Judgment Fund Repeal Act. 
The Klamath Tribe was a victim of the termination era that 
cruelly severed their trust relationship with the Federal 
Government.
    Even after formal termination, the Klamath people held on 
to a stake in future claim awards against the government 
including inadequate compensation for ceding ancestral lands. 
This led to enactment of the Klamath Tribe Judgment Fund Act in 
1965 which specified that any award be distributed based on the 
final membership roll when the tribe was terminated in 1954.
    This Act is a relic of the termination era and assumed that 
the tribe would cease to exist in the Federal Government's 
eyes. That is clearly not the case as the tribe was restored in 
1986. Without repealing this Act, the tribe is rightly 
concerned that any money left over from past awards or any 
award they may receive in the future would have to be 
distributed based on the 1954 roll, including heirs who are not 
members of the tribe or even Native American.
    The cost to identify heirs and determine eligibility, which 
could be substantial, would be borne by the tribe. The tribe 
deserves more from us. This legacy artifact is unworkable. That 
is why this bill is an important bill.
    I hope the Committee will work with the tribe and with 
Senator Wyden and myself to give back the tribe's ability to 
determine for themselves how the funds should be used.
    Thank you for the chance to testify and again, thank you 
for holding this hearing on these two bills.
    The Chairman. Do any other Senators wish to make opening 
statements? If not, we will proceed with our witnesses.
    They are: Mr. Tony Dearman, Director, Bureau of Indian 
Education, U.S. Department of the Interior, Washington, D.C.; 
The Honorable Warren Brainard, Chief, Confederated Tribes of 
Coos, Lower Umpqua and Suislaw Indians of Coos Bay; Mr. Don 
Wharton, Senior Attorney, Native American Rights Fund, Boulder, 
Colorado; and Ms. Carla Mann, President, National Johnson-
O'Malley Association of Tulsa, Oklahoma.
    Welcome to all of you. I would remind you that your written 
testimony in its entirety will be made a part of the record. I 
would ask that you keep your opening statement to five minutes 
or less.
    We will start with Mr. Dearman.

     STATEMENT OF TONY DEARMAN, DIRECTOR, BUREAU OF INDIAN 
           EDUCATION, U.S. DEPARTMENT OF THE INTERIOR

    Mr. Dearman. Good afternoon, Chairman Hoeven, Acting Vice 
Chairman Heitkamp, and members of the Committee. It is good to 
be back with you. Thank you for the invitation to appear today 
to provide a statement and recommendations on behalf of the 
Department regarding S. 943, S. 1223 and S. 1285.
    Regarding S. 943, the Johnson-O'Malley Supplemental Indian 
Education Program Modernization Act, the Department supports 
the bill and recommends some technical changes. Most recently, 
BIE performed student counts, as required by Congress in 2012 
and 2014, which surveyed JOM eligible students served by 
current and prospective contractors.
    Currently allowable under law, not all JOM contractors 
submitted data to the BIE which affected our ability to 
officially verify and formally update the data from the 1995 
official count. That said, a total of 448 eligible entities 
submitted student count data in 2012 which identified more than 
321,000 eligible students as compared to the 1995 official 
county which identified roughly 272,000 students.
    The 2014 count resulted in more than 341,000 students for 
the 399 eligible entities that submitted student data. An 
accurate count of students served by the JOM Program is 
essential to illustrate local need. It is critical that the 
department utilizes funding in a way that diminishes waste and 
supports programs that can accurately portray need.
    The legislation works to accomplish this while ensuring 
accountability for BIE as well as contractors and reporting. To 
that end, the department supports S. 943 and offers the 
following recommendations.
    Section 7(a)(4) defines New Applicants as an entity that 
applies to participate in a contract ``not later than 240 
days'' in coordination with S. 943's reporting requirements for 
the Bureau. The department believes this provision could 
potentially limit prospective applicants due to the period 
mentioned. We would be happy to work with you regarding 
language that clarifies that new applicants will not be 
restricted from applying as contractors.
    Section 7(f) assumes sufficient funding will be available 
to meet the hold harmless requirement. The department believes 
the provision does not carve out an exception for potential 
funding reductions and recommends adding language that the hold 
harmless provision is contingent upon available funding.
    I also want to note that the legislation directs the 
department to cross-check student count data with that from the 
U.S. Census Bureau, National Center for Education Statistics 
and the U.S. Department of Education's Office of Indian 
Education.
    While we understand the need to analyze all sets of data to 
determine accuracy and potential need, there may be issues with 
comparing such data due to varying eligibility requirements and 
legal definitions of eligible students. For example, the 
Department of Education's Title VI formula grants are based on 
student eligibility that is broader than the current JOM 
eligibility.
    Regarding S. 1223, a bill to repeal the Klamath Tribe 
Judgment Fund Act, the department takes no position on this 
legislation at this time. The Klamath Tribe Judgment Fund Act, 
enacted October 1, 1965, authorizes the Secretary of Interior 
to establish and apply appropriated dollars to a judgment fund 
for the Klamath and Modoc Tribes.
    At this time, the department needs to better understand how 
the repeal of this Act will impact our trust responsibility to 
the tribes but looks forward to working with the sponsors on 
this proposal. Regarding S. 1285, the Oregon Tribal Economic 
Development Act, which would allow the leasing or transferring 
of certain lands not held in trust by the United States, the 
Department supports this bill.
    S. 1285 would expressly allow each of the tribes to lease, 
sell, convey, warrant or transfer all or any portion of its 
interest in any real property not held in trust status for the 
benefit of the tribe. Under S. 1285, further approval, 
ratification or authorization by the United States is not 
required in order to validate the land transaction.
    Members of the Committee, thank you for the opportunity to 
present testimony today. The department looks forward to 
working with the sponsors and the Committee on these 
legislative proposals.
    I would be honored to answer any of your questions.
    [The prepared statement of Mr. Dearman follows:]

    Prepared Statement of Tony Dearman, Director, Bureau of Indian 
               Education, U.S. Department of the Interior
    Good afternoon Chairman Hoeven, Vice Chairman Udall, and Members of 
the Committee. It is good to see you again. As Director of the Bureau 
of Indian Education (BIE), I am here today to provide the Department of 
the Interior's (Department) views regarding S. 943, the Johnson-
O'Malley (JOM) Supplemental Indian Education Program Modernization Act.
    The Department supports the goals of S. 943 and recommends some 
technical changes.
Background
    The supplemental educational JOM Program is authorized by the 
Johnson-O'Malley Act of 1934 and the implementing regulations are 
provided in Part 273 of Title 25 of the Code of Federal Regulations. As 
amended, this Act authorizes contracts for the education of eligible 
Indian students not enrolled in Bureau- or sectarian-operated schools. 
A local JOM program operates under a BIE approved individual 
educational plan. JOM education plans include objectives designed to 
address the educational needs of eligible American Indian and Alaska 
Native students, offering students various opportunities, which may 
include cultural enrichment, tribal language support, academic 
assistance, and dropout prevention programs.
    We understand that Indian students have unique educational and 
cultural needs, which include learning their languages, cultures, and 
histories. The supplemental JOM program has historically worked to 
address this need by assisting Indian students who often enter public 
school with an academic skills deficit. In short, JOM functions to help 
Indian students thrive in an environment suited to their strengths.
    Tribal organizations, Indian corporations, school districts, or 
states may be eligible to receive such funds once they establish an 
Indian Education Committee. The role of such committees is to approve 
supplementary support programs. American Indian and Alaska Native 
students are eligible if they are members of a federally-recognized 
Indian tribe or one-fourth or more degree of Indian blood and 
recognized by the Secretary as being eligible for services from the 
Bureau. In addition, students must be age three through grade 12.
Student Counts
    Most recently, BIE performed a student count as required by 
Congress in Fiscal Years (FYs) 2012 and 2014. After formal consultation 
with representatives from tribes, public schools, tribal organizations, 
and parents, a total of 448 entities submitted student count data. The 
FY 2012 JOM count identified 321,273 eligible Indian students as 
compared to the last official count from 1995, which identified 271,884 
eligible Indian students. The FY 2014 count resulted in a final student 
count of 341,495 for the 399 JOM contractors that submitted data. 
Allowable under law, not all current JOM contractors submitted student 
count data to the BIE, which affected our ability to officially verify 
and update the student count. As such, the current official count of 
JOM-eligible students continues to be based on the number from 1995.
S. 943
    An accurate illustration of need for students served by the JOM 
program is essential. To that end, the Department supports S. 943. For 
too long, the count has been considered inaccurate and therefore 
difficult to confirm true local needs of students served by the 
supplemental education program. As the BIE focuses on its core 
institutional mission--providing for the direct operation of schools 
and supporting classroom instruction for Indian students--we must 
ensure taxpayer dollars are being used efficiently and effectively. As 
such, it is critical that the Department utilizes funding in a way that 
minimizes waste and supports programs that can accurately portray need. 
This legislation works to accomplish this while ensuring accountability 
for contractors in reporting their number of students served under the 
program.
    The Department has the following recommendations regarding S. 943, 
the JOM Supplemental Indian Education Program Modernization Act:

  New Applicants. Section 7(a)(4) defines ``New Applicants'' as 
        an entity that applies to participate in a contract ``not later 
        than 240 days. . .'' in coordination with S. 943's reporting 
        requirements for the Bureau. The Department believes this 
        provision could potentially limit prospective applicants due to 
        the period mentioned and suggests language that clarifies that 
        new applicants will not be limited to a particular timeframe.

  Hold Harmless. Section 7(f) assumes sufficient funding will 
        be available to meet the hold harmless requirement. The 
        Department is concerned that the provision does not carve out 
        an exception for potential appropriation reductions and 
        recommends adding language that the hold harmless provision is 
        contingent upon available funding.

  Student Count Data. Section 7(c)(1)(B)(i) directs the 
        Department, through the BIE Director, to cross-check student 
        count data with data from the U.S. Bureau of Census, the 
        National Center for Education Statistics (NCES) in the U.S. 
        Department of Education's Institute for Education Sciences, and 
        the U.S. Department of Education's Office of Indian Education 
        (OIE). The Department assumes that the bill is referring to the 
        student count used for OIE formula grant payments under Title 
        VI of the ESEA (formerly Title VII).

        If that is the case, it should be noted that Title VI formula 
        grants are based on student eligibility that is broader than 
        the JOM eligibility, as OIE's count includes members of state-
        recognized tribes, and children and grandchildren of members of 
        federally recognized tribes without regard to blood quantum. 
        The Department is also concerned that U.S. Census Bureau data 
        will include self-identified individuals who may not be 
        eligible for services because BIE jurisdiction extends only to 
        members of federally-recognized tribes or students who are 
        identified as eligible under the Act. We look forward to 
        working with the committee to ensure that the bill adequately 
        protects the privacy rights of Indian students and their 
        families.

Conclusion
    Thank you for the opportunity to present testimony today on such 
important legislation. The Department and BIE look forward to 
continuing our work with this Committee, Indian tribes, and our 
important stakeholders. We also look forward to working with the 
sponsors of the legislation to address the aforementioned 
recommendations. Thank you for your time, and I would be honored to 
answer any questions you may have.
                                 ______
                                 
    Thank you for the opportunity to present testimony on behalf of the 
Department regarding S. 1223, the Klamath Tribe Judgement Fund Repeal 
Act, which would repeal Public Law 89-224, commonly known as the 
Klamath Tribe Judgement Fund Act. The Department is still reviewing the 
legislation and cannot take a position at this time.
    The Klamath Tribe Judgement Fund Act, enacted on October 1, 1965, 
authorizes the Secretary of the Interior to establish and apply 
appropriated dollars to a judgement fund for the Klamath and Modoc 
Tribes and Yahooskin Band of Snake Indians, better known as the Klamath 
Tribe.
Background
    The Klamath Indian Reservation, located in southern Oregon, was 
established by the Treaty of October 14, 1864. The reservation was 
managed under the supervision of the Federal Government and 
headquartered at the Klamath Agency. In 1954, the federal trust 
responsibility for the reservation was terminated by the passage of the 
Western Oregon Indian Termination Act. Upon formal termination, the 
Klamaths were provided an opportunity to remain tribal members or 
withdraw from their tribal membership. Those opting to withdraw their 
memberships forfeited their share of some tribal assets, and those who 
remained retained ownership of tribal assets. Both groups were able to 
keep any interests in future awards claims.
Docket 100
    The Aboriginal Title Claim case was settled when the Indian Claims 
Commission issued an order on January 31, 1964, which granted a 
judgement fund award of $2,500,000. This settled amount was to serve as 
fair payment for lands in Oregon ceded under the Treaty of 1864. 
Legislation authorizing distribution was not enacted by Congress until 
October 1, 1965. Payment began in 1966 and each of the 2,133 members on 
the membership roll received $1,124.00 resulting in a total of 
$2,351,250.14 paid out, and the remaining balance supported attorney 
fees and expenses.
Docket l00A
    In September of 1969, the Klamath Tribe successfully claimed 
additional compensation for lands ceded by Treaty of October 14, 1864. 
The claim, better known known as `the boundary claim' involved 621,824 
acres that were excluded from inclusion in the reservation boundaries. 
Docket 100A was completed on September 2, 1969, with the sum of 
$4,162,992.82 being granted in favor of the Klamaths. Payment began in 
1970 with each member receiving $1,841.45. Historically, the Bureau of 
Indian Affairs consulted with the Klamath Tribe to prepare proposed 
distribution of judgment funds remaining in the various Klamath 
accounts, pursuant to Klamath Tribal Resolution 96-15, dated March 6, 
1996.
    It is important to make clear that the Klamath Tribe Judgement Fund 
Act is the appropriate vehicle for distributing this funding. We have 
concluded that the Judgement Fund Distribution Act, which was signed 
into law in 1973, does not apply to the Klamath Tribe Judgement Fund, 
as its ability to apply dollars that were appropriated and authorized 
for use and distribution precedes 1973.
    In 1983 and 1996, funds were disbursed for each tribal member on 
the 1954 Klamath roll. The Klamath Tribe currently has 188 Individual 
Indian Money (IIM) accounts for tribal members. An estate account was 
set up for deceased tribal members. These accounts are still open due 
to lack of information, no death certificates, no birth certificates, 
and Whereabouts Unknown. These funds will remain as IIM accounts with 
the Office of the Special Trustee (OST).
Conclusion
    At this time, the Department needs to better understand the impact 
the repeal of this fund will have on our actions moving forward and the 
trust responsibility we have to the Tribe, and therefore takes no 
position on the legislation. Again, thank you for the opportunity to 
testify on the S. 1223, the Klamath Tribe Judgement Fund Repeal Act. I 
would be glad to answer any questions the Committee may have.
                                 ______
                                 
    Thank you for the opportunity to provide a statement on behalf of 
the Department of the Interior (Department) on S. 1285. This 
legislation would allow the Confederated Tribes of Coos, Lower Umpqua, 
and Siuslaw Indians, the Confederated Tribes of the Grand Ronde 
Community of Oregon, the Confederated Tribes of Siletz Indians of 
Oregon, the Confederated Tribes of Warm Springs, and the Cow Creek Band 
of Umpqua Tribe of Indians to lease or transfer certain lands. The 
Department supports S. 1285.
    The Department is aware that the Tribes listed in this legislation 
wish to lease, sell, convey, warrant, or otherwise transfer all or any 
part of their interests in any real property that is not held in trust 
by the United States for the benefit of the Tribes without further 
approval, ratification, or authorization by the United States. As the 
language in the bill indicates, such lands do not include any lands 
held in trust by the United States for the benefit of the Tribes.
    The Tribes have expressed their opinion that they cannot lease, 
sell, convey, warrant, or otherwise transfer all or any part of its 
interests in any real property not held in trust by the United States 
unless authorized by Congress. The Tribes presumably are referring to 
federal law, 25 U.S.C.  177, which prohibits any ``purchase, grant, 
lease, or other conveyance of lands, or of any title or claim thereto, 
from any Indian nation or tribe of Indians.''
    S. 1285 would expressly allow each of the Tribes to lease, sell, 
convey, warrant, or transfer all or any portion of its interest in any 
real property not held in trust status by the United States for the 
benefit of the Tribe. Under S. 1285, further approval, ratification, or 
authorization by the United States is not required in order to validate 
the land transaction. The legislation also clearly states that S. 1285 
does not authorize the Tribe to lease, sell, convey, warrant, or 
otherwise transfer all or any portion of any interest in any real 
property that is held in trust by the United States for the benefit of 
the Tribe. Given these clear lines, the Department supports S. 1285 and 
believes this authority should be extended to all Tribes for fee simple 
lands.
    Mr. Chairman and members of the Committee, thank you for the 
opportunity to appear before you today. I am happy to answer any 
questions you may have.

    The Chairman. Thank you, Director Dearman.
    Now, I would like to call on the Honorable Warren Brainard.

           STATEMENT OF HON. WARREN BRAINARD, CHIEF, 
 CONFEDERATED TRIBES OF COOS, LOWER UMPQUA AND SUISLAW INDIANS 
                          OF COOS BAY

    Mr. Brainard. Good afternoon. My name is Warren Brainard 
and I serve as Chief of the Confederated Tribes of the Coos, 
Lower Umpqua and Suislaw Indians. We are located along the 
beautiful rural Oregon coast, a long way from Washington, D.C.
    I am honored to testify today about S. 1285 and its 
importance to my people. I am accompanied here today by Teresa 
Spangler, who serves as Vice Chair of the Tribes.
    This bill would remove barriers that hinder our effort to 
create economic development opportunities and jobs not only for 
our tribal community but also for surrounding communities. 
These barriers stem from the overly broad interpretation of the 
Non-Intercourse Act and by certain title companies and 
financial institutions in Oregon.
    The bill would give us the right to buy, sell or lease 
property like any other American. It would make it clearer that 
no approval is required from the U.S. for real estate property 
transactions on our fee lands. The bill would also assist four 
other tribes in Oregon in this regard.
    Further, I would like to emphasize the bill would not 
affect any trust land and does not relate to gaming.
    We thank Senator Merkley for introducing S. 1285 and 
Senator Wyden for co-sponsoring this bill. We appreciate their 
efforts on our behalf. We also appreciate the Committee's 
efforts.
    The Indian Non-Intercourse Act is a series of Acts from 
1790 to 1834 and was intended to establish the Federal 
Government as the sole authority over Indian affairs in order 
to maintain peaceful and stable relations with tribes and 
prevent the loss of Indian lands from colonial encroachment.
    The Acts prevent the sale, lease, transfer or other 
conveyance of Indian land without Federal approval. Typically, 
the Act has not prevented the tribe from being able to engage 
in fee land transactions.
    However, some of the companies and financial institutions 
are interpreting the Act to require Federal approval for tribes 
for these types of transactions. The Department of Interior 
does not seek such determination for fee land transactions for 
tribes. Seeking congressional approval for every fee land 
transaction by a tribe is clearly impracticable.
    Over the past 200 years, the application of the Act has 
varied depending on the time period and location resulting in a 
confusing set of judicial, legislative and administrative 
decisions. In 2014, we encountered this problem. We sought to 
purchase a self storage facility in Coos Bay, Oregon using a 
commercial mortgage.
    However, the title company's underwriters determined the 
Act required the transaction be approved by the BIA and refused 
to issue title insurance. We were unable to obtain a commercial 
mortgage to purchase this facility and had to do all that we 
could to put together enough cash to acquire the facility.
    Although we were able to complete the transaction, we do 
not have the means to execute all of our fee land transactions 
in cash. Without passage of this bill, we will continue to 
encounter this problem and will be unable to obtain mortgages, 
sell or lease existing fee lands. This would severely hamper 
our efforts to engage in economic development, create jobs and 
acquire some of our ancestral lands. We seek passage of the 
bill to address this problem.
    Thank you for your efforts and working with us to enact 
this bill into law. I appreciate this opportunity to testify 
and would be happy to answer any questions.
    Thank you.
    The Chairman. Thank you, Chief Brainard. Thank you also for 
your service. I understand your son is a Colonel in the Air 
Force as well. We appreciate your service and his.
    Mr. Brainard. Thank you.
    The Chairman. Next is Mr. Wharton.

    STATEMENT OF DONALD R. WHARTON, SENIOR ATTORNEY, NATIVE 
                      AMERICAN RIGHTS FUND

    Mr. Wharton. Good afternoon, Mr. Chairman and members of 
the Committee. Thank you for the opportunity to be here today.
    I especially want to thank Senators Merkley and Wyden for 
introducing this legislation. I think Senator Merkley gave a 
very good synopsis of it, so I will try to limit my comments to 
additional issues.
    I want to point out that this legislation, as pointed out, 
was part of and is vestige of the Termination Act of 1954, 
disastrous and ill-considered legislation that had very adverse 
effects on the tribe and its people. In 1965 when this was 
adopted, there were 2,133 members on the final roll who were 
the distributees identified under this Act.
    To give you one example of the inequities that flow from 
this, a woman of the tribe married a non-Indian man. She passed 
away and he, of course, was heir to her estate. Her son watched 
as he then passed along his interest to his children, non-
Indians, watched as distributions came down and they received 
money and he did not.
    To understand how this actually operates is to understand 
how inequitable it is and how disastrous it is for the tribe. 
This legislation denigrates sovereignty; it disallows a tribe 
the ability to determine the distribution and the allocation of 
its own assets. It deprives significant numbers of tribal 
members born after 1954 from sharing in any of that estate 
unless they are an heir or legatee.
    Just being a descendant does not necessarily guarantee 
that. Current members of the tribe cannot share in the 
distribution if they were born after 1954 and are not an heir.
    It is very expensive to distribute this money. The last 
distribution cost in the neighborhood of $300,000, because you 
have to identify every single heir and legatee. You have to 
know who they are, what their share is, where they live and how 
to get a check to them.
    That is not always successful but that is a very expensive 
process for which the Bureau charges money and deducts that 
money from the money in the account, therefore diminishing the 
distribution. If the money cannot be distributed and it costs 
more than it would be worth to distribute it, under this Act, 
that money then goes back to the United States. It is not held 
for the benefit of the tribe, which I think is, again, a 
serious inequity to the tribe. Repeal of this Act would help to 
rectify that problem.
    Future judgments, by the way, it is not just judgment 
money. This Act specifically requires that it applies to the 
judgment fund and all other funds deposited to the credit of 
the Klamath Tribes in the United States Treasury. It is not 
just judgment fund money. It covers every resource that gets 
deposited to the Treasury. It is important to understand this 
Act has serious inequities and would rectify a longstanding 
wrong to the tribe as a result of the Termination Act.
    I understand the Office of Trust Services would like to 
better understand what is going on and we would very much like 
to facilitate the possibility of doing that. We would be glad 
to work with you to help that happen.
    If this repealed distribution of judgment funds would be 
pursuant to 1401, the other Judgment Fund Act, that provision 
in the Judgment Fund Act also provides if monies have been 
distributed and have not all been distributed, those funds 
under 1401(b) would be held for the benefit of the tribe.
    That would be a significant step forward in rectifying this 
inequity and serving the long term benefit of the tribe and 
honoring its sovereignty.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Wharton follows:]

   Prepared Statement of Donald R. Wharton, Senior Attorney, Native 
                          American Rights Fund
    Chairman Hoeven, Vice Chairman Udall and members of the Senate 
Committee on Indian Affairs. My name is Donald R. Wharton. I represent 
the Klamath Tribes as an attorney with the Native American Rights Fund. 
This testimony is submitted in support of S. 1223 which will repeal The 
Klamath Tribe: Judgment Fund Act of 1965, Pub. L. 89-224 (The Judgment 
Fund Act). The Judgment Fund Act seriously compromises the Klamath 
Tribes sovereignty and mandates distribution of tribal funds in a 
manner detrimental to the best interests of the Tribes and its members. 
It is the last remaining vestige of the disastrous and ill-considered 
legislation that in 1954 terminated the government-to-government 
relationship between the Klamath Tribes and the United States. That 
relationship was restored on Aug. 27, 1986 by Pub. L. 99-398, by the 
Klamath Tribe: Restoration of Federal Supervision Act.
I. The Historical Context of the Judgment Fund Act
    The Klamath and Modoc Tribes and the Yahooskin Band of Snake 
Indians (now Klamath Tribes) had their government-to-government status 
as a recognized Tribe terminated in 1954 by the Klamath Tribe: 
Termination of Federal Supervision Act, (Pub. L. 86-40; 68 Stat. 718). 
This unilateral act of the United States Congress was taken without the 
consent or support of the Klamath Tribal Government. The purpose of the 
Act was to terminate Federal supervision over the trust and restricted 
property of the Tribe, and to remove from individual members their 
status as members of a ``recognized'' tribe. As a result, the lands and 
other tribal property were monetized and distributed to individual 
members of the Klamath Tribes. In order to accomplish this a ``final 
roll'' of the members of the Tribe as of midnight August 13, 1954 was 
compiled (the 1954 enrollees). There were 2133 members on that roll. 
The more complicated process of determining which of the members were 
the so-called ``withdrawn members'' and which were the so-called 
``remaining members'' isn't germane to the consideration of S. 1223.
    In addition to the reservation property of over 850,000 acres of 
prime timber and ranch lands, the Tribe also had pending before the now 
defunct Indian Claims Commission (ICC) lawsuits against the United 
States seeking compensation for the mismanagement or misappropriation 
of tribal assets; primarily timber and ranch lands. In the 1950s, and 
until 1965, claims before the ICC and later the Court of Federal Claims 
which resulted in judgments against the United States were not paid to 
the Klamath Tribe until authorized and appropriated by Congress. As a 
result, Congress determined that it would be more efficient to adopt a 
``Judgment Fund Distribution Act'' that would allow for any funds 
secured as a result of judgment against the United States and deposited 
in the United States Treasury to the credit of the Klamath Tribe to be 
distributed in accord with the specific requirements of that Act. Thus, 
Congress adopted the Judgment Fund Act on October 1, 1965.
    The Judgment Fund Act provided for distribution of funds 
appropriated in satisfaction of judgments obtained by the Tribes, and 
all other funds deposited in the United States Treasury to the credit 
of the Klamath Tribes, to the 2133 people on the Final Roll. (Sec 4 of 
Pub. L. 89-224). All funds deposited in the Treasury regardless of the 
source (e.g., payments for rights-of-way, trespass damages, or other 
revenues, together with any interest accrued) were included in the 
application of the Act.
II. The Problem With the Judgment Fund Act
    The Judgment Fund Act's limitation on distribution of funds to 
persons on the ``final roll'', or to their heirs or legatees began to 
have unintended and deleterious results. As time went on, the 2133 
members on the final roll began to pass on. Under the terms of the 
Judgment Fund Act, their share passed to their heirs or legatees. (Sec 
2 of Pub. L. 89-224). Sometimes surviving spouses, sometimes children 
or other surviving relatives. Many of the people to whom shares passed 
were not Klamath tribal members, or even of Native American descent. As 
a result, distribution pursuant to the Judgement Fund Act has four 
impacts detrimental to the Tribes.

        1. The Tribes have no ability to determine how tribal funds can 
        be allocated to members or other tribal priorities. Indeed, 
        many tribal members are ineligible to receive any part of the 
        distribution of such funds, and the Tribes cannot designate any 
        funds for general tribal benefit or development.

        2. Because of inter-marriage with non-members the distribution 
        of funds under the Act result in distribution of significant 
        amounts of tribal funds to non-Indians and other non-members of 
        the Tribes.

        3. Distribution to the living 1954 enrollees, or their current 
        heirs or legatees, requires a complicated process of 
        identification and certification of each individual, 
        necessitating an extraordinarily lengthy and extremely 
        expensive process. The costs for distribution are deducted from 
        the available funds, thus significantly reducing funds 
        available for distribution.

        4. Should there be funds in the account which the Secretary of 
        the Interior determines are insufficient to justify further 
        distribution--which could be substantial given the 
        extraordinary cost of distribution--those funds must under the 
        Act be returned to the Treasury of the United States; not held 
        for the benefit of the Tribes.

    The Judgment Fund Act did not contemplate the August 27, 1986 
Klamath Tribe: Restoration of Federal Supervision Act, Pub. L. 99-398, 
which restored the government-togovernment relationship between the 
Tribes and the United States. Restoration in part reinitiated the 
enrollment of tribal members born after the compilation of the 1954 
Final Roll. It also reinvigorated the Klamath Tribes' Government which 
manages the affairs of the Tribes. Despite the restoration of many 
tribal powers the Judgment Fund Act disallows any tribal determination 
over the distribution of funds in the United States Treasury for the 
benefit of the Tribes or any members enrolled after August 13, 1954.
III. The Effect of Repeal
    Repeal of the Judgment Fund Act would resolve these concerns and 
allow the Tribes to determine the best use of funds presently in trust 
accounts for the benefit of the Klamath Tribes. In the absence of the 
judgments from the U.S. Court of Federal Claims--there are no further 
claims before the ICC--would be made pursuant to the Indian Tribal 
Distibution of Judgment Funds Use and Distribution Act of October 19, 
1973, 25 U.S.C.  1401 (87 Stat. 466). That Act by its terms applies to 
any ``Indian Tribe'', which includes the Klamath Tribes. It is 
presently unavailable to the Klamath Tribes because the1965 Judgment 
Fund Act preempts its application.
IV. Conclusion
    The repeal of this last vestige of the disastrous and ill-
considered Termination Act of 1954 would be a welcome and necessary 
next step in respecting the sovereignty of the Tribes and returning the 
Klamath people to their former robust self-sufficiency.

    The Chairman. Thank you, Mr. Wharton.
    Ms. Mann, your testimony.

 STATEMENT OF CARLA MANN, PRESIDENT, NATIONAL JOHNSON-O'MALLEY 
                      ASSOCIATION (NJOMA)

    Ms. Mann. Thank you for the honor of speaking before you 
again today.
    As you know, the National Johnson-O'Malley Association 
speaks for the JOM programs across the Nation asking for the 
unfreezing of the JOM Program. For approximately 16 years, we 
have come to Congress asking for that to be done. In the last 
four years, we have changed our direction.
    When NJOMA began the pursuit of legislation to modernize 
and reform the Johnson-O'Malley Program, we established four 
primary goals for this legislation. First, we are seeking for 
the JOM Modernization Act to obtain a complete update of the 
student count for the number of Indian students eligible for 
JOM services and assistance.
    Second, we wanted to initiate and conclude an open, honest 
and reality-based discussion about the true cost and funding 
needed to provide these types of supplemental learning and 
educational services and assistance needed by Indian students 
in today's educational and career environment.
    Third, we wanted to obtain a general update and 
modernization of JOM's rules as reflected in Title 25, Code of 
Federal Regulations.
    Finally, we wanted to codify the objective of increasing 
geographic and tribal participation in the Johnson-O'Malley 
Supplementary Education Program.
    When we wanted to update the student count, we looked in 
different directions for how we were going to complete that. 
One suggestion was to utilize the count from the Census which 
is one of the accepted U.S. Government datasets, as well as the 
National Center for Education Statistics and Office of Indian 
Education, Department of Education.
    A recently published article shows that the Native 
population has increased by 26.7 percent across the Nation. The 
children we count right now are approximately 272,000. 
According to the Census, we have nearly 1 million reported.
    NJOMA hopes to be able to continue working with this 
Committee, our other congressional supporters, the Department 
of Interior, and the BIE to fully identify and extend JOM 
services and assistance to the full Indian student population 
JOM is intended to reach.
    In 1995, when the JOM was frozen, the students received 
approximately $125 per student. Right now, in today's dollars, 
we are getting $63. Effectively, that is around $43 per 
student. It can be much less for those tribes who count all 
students regardless of the number they are receiving money for.
    On behalf of over 1 million Indian children eligible for 
JOM, NJOMA is overjoyed by the Committee's speedy consideration 
of S. 943 and would urge immediate approval. After 20-some 
years of waiting for any action by Congress or the 
Administration to rectify this shameful condition, that the JOM 
Program exists today, we are encouraged by today's hearing and 
the Committee's pending approval of this legislation.
    We are hopeful that this Committee and the Senate will take 
quick action on this bill so that the House would have the 
opportunity to also quickly act on the bill. Given the number 
of tasks prescribed in the bill, we pray that all this work can 
be completed and put into place in time for the 2018-2019 
school year.
    Each school year that passes is one more year that our 
students are not receiving the benefits they should be 
receiving through treaty rights to further their education. To 
meet the proposed schedule, we need this bill enacted and 
signed by the President as soon as possible.
    I thank you for your time and am open to any questions.
    [The prepared statement of Ms. Mann follows:]

Prepared Statement of Carla Mann, President, National Johnson-O'Malley 
                          Association (NJOMA)
    Mr. Chairman and Members of the Committee, I am pleased to 
represent the National Johnson-O'Malley Association (NJOMA) before you 
today in support of S. 943, the Johnson-O'Malley Supplemental Indian 
Education Program Modernization Act of 2017; legislation developed to 
direct the completion of necessary updates to the Johnson-O'Malley 
Supplemental Indian Education program (JOM) operated by the Department 
of Interior, Bureau of Indian Education (BIE).
    Mr. Chairman, as I have testified before, NJOMA has for nearly 25 
years and through several Administrations advocated for actions to 
reverse the Department of Interior and BIE's ``determined 
unwillingness'' to complete the necessary work to be able to finalize a 
count of the numbers of Indian students ``eligible'' for JOM services. 
In 2012, 2014, 2016 and again in 2017, Members of Congress approved 
language in the Interior appropriations bills directing the Department 
and BIE to update and report to the Congress a count of the eligible 
Indian students for the JOM program. Given this unacceptable situation, 
I come here again today on behalf of the over 1 million Indian children 
asking this Committee and the Congress to quickly approve S. 943 so 
that these children can rightfully obtain the kinds of supplemental 
educational services and assistance they need to become productive 
American citizens.
    We are extremely pleased and thankful that Senators Heidi Heitkamp, 
James Langford, Steve Danes have stepped up to reintroduce legislation 
to direct the Secretary of Interior to acknowledge the 20 plus year gap 
in data collection for the JOM program, and to select and use one of 
the widely accepted government data sets such as Census Bureau and/or 
National Center for Education Statistics (NCES) data, to develop a 
reasonably reliable projection of the current JOM-eligible student 
population. This bill will authorize the Secretary to use one these 
data sets to establish a new baseline count of eligible Indian students 
for use in help BIE and NJOMA build a modern, more accurate, and 
uniform allocation funding formula; establish a data reconciliation 
process-like the one used by HUD in the Indian Housing Block Grant 
program to work with Tribes, public school districts and other 
organizations to refine, and establish on an ongoing basis, the 
requirement for BIE to keep the count accurate and report this 
information to the Congress on an annual basis.
    When NJOMA began our pursuit of legislation to modernize and reform 
the Johnson-O'Malley program, we established four primary goals for 
this legislation:

  First, we are seeking the Johnson-O'Malley Modernization Act 
        to obtain a complete update of the student count for the number 
        of Indian students ``eligible for JOM services and 
        assistance'';

  Second, we wanted to initiate and conclude an open, honest 
        and reality based discussion about the true cost and funding 
        needed to provide the types of supplemental learning and 
        educational services and assistance needed by Indian students 
        in today's educational and career environment;

  Third, we wanted to obtain a general update and modernization 
        of JOM's Rules, as reflected in Title 25, Code of Federal 
        Regulations; and

  Finally, we wanted to codify the objective of increasing 
        geographic and Tribal participation in the Johnson-O'Malley 
        Supplementary Education Program.

Updating the JOM Student Count
    For nearly 25 years and through several Administrations, the 
Department of Interior and BIE have been unable, or in some peoples' 
opinion, unwilling to do the necessary work needed to finalize a count 
of the numbers of Indian students currently enrolled or calculate the 
true total count of Indian students eligible for JOM services. It 
should be noted once again that the JOM program has been all but frozen 
in time since 1995: no updated student count, no update of the program 
rules, and no real increase in funding to meet the real-time growth in 
the eligible population as noted from data collected for other Indian 
education activities and the 2010 Census (and its bi-annual Community 
Population updates).
    Once again, I would remind the Committee that in 2012, 2014, 2016, 
and again in 2017, the Congress approved language in the Interior 
appropriations bills directing the Department and BIE to update and 
report to the Congress a count of the eligible Indian students for the 
JOM program. Given what I believe we would all agree is a totally 
unacceptable situation, we firmly believe that the ``total eligible 
student population'' for JOM when projected using the accepted factors 
of ``enrollment in a Federally recognized Indian tribe or \1/4\ blood 
quantum'' that the eligible JOM Indian student count is well over 1 
million Indian children verses the 272,000 students counted in 1995, 
and still in use for funding and allocation purposes today.
    NJOMA is totally supportive of the authorization contained in S. 
943 that provides the Secretary of Interior with direct authorization 
to select and use one or more of the widely accepted government data 
sets such as Census, National Center for Education Statistics (NCES), 
and data collected by the Office of Indian Education of the Department 
of Education to develop a reasonably reliable projection of the 
currently enrolled JOM-eligible student population. We hope to be able 
to continue working with this Committee, our other Congressional 
supporters and the Department of the Interior and BIE to fully identify 
and extend JOM services and assistance to the full Indian student 
population JOM is intended to reach.
Determining True Cost and Funding to Provide Supplemental Learning and 
        Educational Services and Assistance Needed by Indian Students 
        in Today's Educational and Career Environment
    Under currently utilized JOM regulations (Title 25 Code of Federal 
Regulations (CFR) INDIANS, Part 273, 16-17), JOM programs are based on 
community and student needs assessments, not the needs of the school 
district and therefore provide specialized educational services to 
Indian students. As you may know, the JOM program is the only 
Federally-funded Indian educational program that allows for student, 
parent, and community involvement in meeting their educational needs 
which are both academically, culturally and geographically based.
    In 1995 when JOM was frozen, the per student allocation amount 
funded was approximately $125.00 per student, based on the then 272,000 
counted students. A review of the nearly 22 years of frozen funding for 
JOM appearing later in this testimony shows that today's JOM per 
student allocation is effectively $43.00 per student; an amount that is 
not based on any accepted measurement of the true costs of the goods, 
services, personnel and transportation costs and types of assistance 
needed by JOM eligible students.
    NJOMA is pleased that S. 943 directs the Secretary to establish, in 
consultation with contracting parties, a present day per student 
funding allocation that shall serve as a funding ``target baseline'' 
for the JOM program going forward. This baseline will enable all of us 
to remain focused on insuring that the commitments make as far back as 
the early 1800s, and codified in the 1934 Johnson-O'Malley Act, to 
``ensure that Indian children received the educational opportunities 
that would not otherwise be provided'' are kept.
    We are also pleased that S. 943 requests that the Secretary make 
recommendations for legislation to logically increase the amount of 
funds available per eligible Indian student through contracts, at 
amounts equal to or greater than the amount of funds that were 
available per eligible Indian student for fiscal year 1995, and to 
identify additional sources of funding that do not reallocate existing 
funds otherwise utilized by Indian students served by JOM.
    Finally, NJOMA is also supportive of the provisions that establish 
``Hold Harmless'' funding conditions in S. 943, and are pleased that 
they accommodate the need, should it occur, for JOM Contracting Parties 
to adjust their program and services over a period to accommodate a 
decrease in enrolled students should it fall below the number of 
eligible Indian students identified in the initial eligible student 
count for that program entity.
Updating and Modernization of JOM's Rules
    The program operating rules for JOM are terribly outdated and 
lacking in the kind of guidance generally needed by JOM Contracting 
Parties. Many of the needed Rule updates are to provisions that have 
not been reviewed or amended since the 1970s, or are in areas where the 
Courts have rendered decisions that require JOM Rules to be brought 
into compliance with the Court's findings such as the definition of 
``eligible Indian student'' as ruled by the Ninth Circuit Federal 
District Court in Diane Zarr v. Earl Barlow, 800 F.2d 1484 (9th Cir. 
1986).
    S. 943 instructs the Director of the Bureau of Indian Education to 
undertake and complete a rulemaking process to determine how the 
regulatory definition of `eligible Indian student' may be revised to 
clarify eligibility requirements for contracting parties; determine, as 
necessary, how the funding formula may be clarified and revised to 
ensure full participation of contracting parties and provide clarity on 
the funding process; and otherwise reconcile and modernize the rules 
guiding the JOM program.
    NJOMA looks forward to working with BIE and other JOM stakeholders 
to improve and update the JOM program Rules; and are hopeful that this 
effort will be conducted via a fully engaged and consultative process.
Increasing Geographic and Tribal Participation in the JOM Program
    S. 943 instructs the BIE to consult with Indian tribes and contact 
State educational agencies and local educational agencies that have not 
previously entered into a contract to determine the interest of the 
Indian tribes and State educational agencies and local educational 
agencies in entering into contracts, and to share information relating 
to the process for entering into a contract. This mandate is justified 
because in 1996, BIE stopped accepting and processing applications from 
Tribes and other potential JOM program contractors, even as inquiries 
continued to flow into the Bureau from school districts, Tribes and 
other eligible entities.
    NJOMA strongly believes that as the true impact of the likely 
``total eligible student population'' for JOM of well over 1 million 
Indian children and that the need to increase the number of JOM 
Contractors, expand resources and otherwise raise funding for this U.S. 
Government ``Trust Responsibility'' program will be self-evident. We 
likewise believe it is important that these and other outreach efforts 
are critically needed to insure also that ``No Indian Child is Left 
Behind.''
What Does the Census Data Tell Us?
    In previous testimony NJOMA has spoken to the issues of using 
widely acknowledged data and a reconciliation process to better 
determine and establish a viable estimate of the number of JOM eligible 
Indian students. The Native American population that has been one of 
the demographic groups experiencing positive population growth for the 
last 40 plus years. According to the 2010 census, 5.2 million people, 
or 1.7 percent of all people in the United States, identified as 
American Indian and Alaska Native, either alone or in combination with 
one or more races. This population alone grew by 27 percent from 2000 
to 2010. In the 2010 census, those who reported being American Indian 
and Alaska Native alone totaled 2.9 million, an increase of 18 percent 
from 2000 to 2010. The multiple race American Indian and Alaska Native 
population, as well as both the alone and alone-or-in-combination 
populations, all grew at a faster rate than the total U.S. population, 
which increased by 9.7 percent from 2000 to 2010. The data also shows 
us the steady growth that has occurred and is forecast to continue to 
happen within the ages 3-12 years old demographic, and the forecasts up 
to and beyond 2020 present this same picture.
    In 2014, the U.S. Census Bureau provided Representative Tom Cole 
(R-OK) with census data regarding American Indian and Alaska Native 
child populations. The information provided included data tables that 
reflect American Indian and Alaska Native population aged 3 to 18 years 
by selected tribe from the 2000 Census, the 2006-2010 American 
Community Survey, the 2010 Census, and the 2008-2012 American Community 
Survey. In addition, the Census Bureau provided population projections 
of the American Indian and Alaska Native population aged 3 to 18 years 
for 2010 through 2020. According to the most reliable numbers available 
from the 2010 Census, there are at least 798,000 Indian and Alaskan 
Native students who are counted as having been enrolled in a single, 
federally recognized tribe. That number is over 1.0 million eligible 
Indian children who, based on meeting the current JOM 1/4thquantum 
requirement, and attending Public Schools who we believe, should also 
be receiving JOM services today.
    Because of bureaucratic fumbling and Administration neglect, JOM's 
student count has been frozen at 272,000 students since 1994. The 
Senate Indian Affairs Committee stated in its 2012 Report accompanying 
S. 1262 (Senate Report 112-262), ``[that] currently, 620,000 or 93 
percent of Native students attend public schools and approximately 
45,000, or 7 percent, attend BIE schools.'' It was clear then, and 
remains true, that there are many JOM-eligible students being denied or 
deprived of services that they are legally entitled to, amounting to a 
failure of the Federal Government to meet its trust responsibility.
    NJOMA has lead an effort--that we are pleased that the BIE has now 
embraced--to temporarily set-aside BIE's once used annual student count 
process, and replace their count with U.S. Census or other data to 
build a new baseline count of JOM Indian students. We have argued that 
Census data is reliable, comprehensive information that is provided 
without any additional funding or resources for the Bureau. There are 
many federally funded programs, including ones specifically for Native 
American populations, which use U.S. Census data for the apportionment 
of funds. Census information is reliable data upon which Congress and 
the Administration regularly rely including for the Reading First State 
Grants (Dept. Ed), Career and Technical Education--Basic Grants to 
States (Dept. Ed), Tech-Prep Education (Dept. of Ed), Safe and Drug-
Free Schools and Communities State Grants (Dept. Ed), Water and Waste 
Disposal Systems for Rural Communities (USDA), Grant Program to 
Establish a Fund for Financing Water and Wastewater Projects (USDA), 
Special Programs for the Aging Title VI, Part A, Grants to Indian 
Tribes Part B, Grants to Native Hawaiians (HHS), Urban Indian Health 
Services (HHS), Low-Income Home Energy Assistance (HHS), Head Start 
(HHS), Family Violence Prevention and Services/Grants for Battered 
Women's Shelters Grants to States and Indian Tribes (HHS), Preventive 
Health and Health Services Block Grant (HHS), Violence Against Women 
Formula Grants (DOJ), State Public Water System Supervision (EPA), 
Water Pollution Control State, Interstate, and Tribal Program Support 
(EPA), Nonpoint Source Implementation Grants (EPA), Economic Adjustment 
Assistance (DOC), National Fire Plan--Wildland Urban Interface 
Community Fire Assistance (DOI), Americorps (CNCS), Native American 
Employment and Training (DOL).
    The Federal Government, including the Department of Interior and 
the Bureau of Indian Affairs use Census data for other Indian programs 
including tribal housing, tribal roads, law enforcement, and labor 
force reports. BIA currently uses Census data for its American Indian 
Population and Labor Force Reports and Congress regularly uses this 
data to inform policymaking decisions. Census data is also widely used 
locally for planning and program purposes to identify appropriate 
economic development approaches and gauge particular community needs 
and resources. Another critical use of this data is to determine levels 
of federal funding for tribes under the Workforce Investment Act, the 
Indian Housing Block Grant program, the BIA Tribal Transportation 
program, and many other Indian programs. Using Census data would reduce 
duplicitous spending by BIA to perform a count for which data already 
exists. Any significant changes to data collection (or lack thereof) 
and the continued non-collection of data impact the ability of tribal 
governments to adequately provide for their citizens, and affect the 
federal government from carrying out its trust responsibility in 
essential social and economic areas.
    In 1997, OMB issued a Federal Register notice regarding revisions 
to the standards for the classification of federal data on race and 
ethnicity. OMB developed race and ethnic standards in order to provide 
``consistent data on race and ethnicity throughout the Federal 
Government. The development of the data standards stem in large measure 
from new responsibilities to enforce civil rights laws.'' Among the 
changes, OMB issued the instruction to ``mark one or more races'' after 
noting evidence of increasing numbers of interracial children and 
wanting to capture the diversity in a measurable way and having 
received requests by people who wanted to be able to acknowledge their 
or their children's full ancestry rather than identifying with only one 
group. Prior to this decision, the Census and other government data 
collections asked people to report only one race.
    The OMB states, ``many federal programs are put into effect based 
on the race data obtained from the decennial census (i.e., promoting 
equal employment opportunities; assessing racial disparities in health 
and environmental risks). Race data are also critical for the basic 
research behind many policy decisions. States require these data to 
meet legislative redistricting requirements. The data are needed to 
monitor compliance with the Voting Rights Act by local jurisdictions''.
    While BIE has traditionally relied on tribes to provide data for 
the student count, tribes should not bear sole or primary 
responsibility for providing quality data with little to no resources, 
training, or other support from the Bureau to do so. It is clearly 
essential that student count data be available for monitoring the 
quality of services that the BIE and JOM contractors are responsible 
for providing to American Indian and Alaska Native students. Going 
forward, there needs to be greater coordination between the BIE, Census 
Bureau, and the Office of Management and Budget to address the 
widespread problems that plague data collection generally in Indian 
Country, and especially JOM.
    For the record, BIA/BIE's 2012 and 2014 counts--as imperfect as 
they were--made it clear that there have been increases in the number 
of students needing and being serviced by JOM since 1995. The only real 
issues in dispute today are how much of a student increase has 
occurred, and what the cost would be of adequately serving this 
population. As the number of students served by JOM has grown, so too 
must the funding in order for JOM to continue to operate and offer the 
much needed services it provides to an already underserved Native 
American population.
    In our view, at this point in time, it is clear that this data is a 
more comprehensive compilation of population data and more accurately 
reports the demographics of the client group that JOM is intended to 
serve. The BIE has more than proven that is not capable of performing 
and reporting student counts as mandated by Congress. S. 943 will 
direct the use of Census and/or other data to bridge the over 20-year 
gap since the last true JOM student count, but does serve as a 
replacement for a BIE count altogether.
    We look forward to working with BIE, the current JOM contractors 
and all new program providers in providing Congress with accurate and 
compelling justifications for increases in funding and expansion of the 
allowable-but badly needed-program activities that JOM can operate that 
will advance the attainment of the goal of enhancing the education and 
training of Indian students.
JOM Funding and Student Count History
    For over 60 years, the JOM program constituted a separate 
appropriation under the Federal budget and appropriations bills. 
However, in 1995, the Bureau of Indian Affairs moved the JOM program 
into the TPA budget category of the BIA. The TPA is a block grant to 
tribes of a number of program allocations and authorities which 
originally were separate programs. Theoretically, the TPA system allows 
tribes flexibility to move funds between activities within the program 
to meet locally, tribally designated priorities. However, as with most 
block grant schemes, the TPA has been used as a budget regulatory tool, 
with amounts for the TPA account limited and not increasing with the 
needs of various components. In fact, the TPA has allowed the Federal 
government to flat-line funds for the account for years, while the 
needs of the constituent programs have increased. The tribes and the 
JOM Indian community resisted the proposed Bureau addition of the JOM 
to the TPA. Despite tribal and educator opposition, the BIA added the 
JOM program to the TPA, creating the current program.
    Prior to the 1995 freeze, the BIA had a full time JOM Director in 
the D.C. office. This director collected the program annual reports, 
student count information, and provided technical assistance the 
programs. While there were local JOM managers in the regional BIA 
offices that oversaw the local JOM programs and provided direct 
technical assistance, the JOM program administrators had a direct line 
to the Director in D.C. The Director's primary task was to provide the 
JOM programs with their annual funding based on the student count 
received from the local JOM managers. The Director makes a funding 
distribution based on the national budget divided by the student count, 
taking into consideration the cost of living in each state. For 
example, Alaska received the highest per student cost based on the high 
cost of living in that state.
    The regional JOM managers would collect the information from the 
local JOM programs; they would put out notices of deadlines, hold JOM 
forums, and conduct annual evaluations of each program, including a 
random student certification verification and financial audit review. 
These regional managers would provide their findings of non-compliance 
to the programs and provide them a timeline to comply or funding would 
be withheld until such time as the individual program was compliant 
with federal regulations and BIA policies and procedures. Compliance 
included annual reports, student count certificates, or lack of Local 
Indian Education Committee (LIEC) involvement.
    The LIEC is comprised of parents of eligible Indian students 
enrolled in the public school district. Choices are made at the local 
level, with scarce resources going to locally determined needs. The 
regional JOM managers also reviewed each JOM program application and 
ensured that there were measurable goals and objectives based on an 
actual needs assessment that was conducted annually. In addition, the 
managers reviewed their prospective budgets before forwarding them to 
the Director in D.C. The managers collected the following from each 
program and sent them to the Director: annual needs assessment, program 
application with measurable goals and objectives, budgets, student 
count verifications, LIEC bylaws, and LIEC election process.
    In 1982, the BIA proposed eliminating the JOM, arguing duplication 
of Indian Education Act. Congress soundly refuted this reasoning, 
stating the programmatic differences in local Indian control and scope, 
and difference in student eligibility. In 1983, the Department of 
Education (DOE) proposed eliminating the Indian Education Act, arguing 
similar funding was available from DOE and the lack of accountability 
for how the funding was used.
    The U.S. Department of Education oversees the Title VII Indian 
Education Act programs and Title VIII Impact Aid funding which Congress 
considers duplicate funding sources for Indian Education. The Title VII 
program is run directly through the school districts and is not subject 
to tribal control. The tribes have no actual authority over the design 
or implementation of the Title VII programs.
    Under the JOM regulations, parents of eligible JOM Indian students 
are `vested with authority'' to design and implement local JOM 
programs. 25 Code of Federal Regulations (CFR) INDIANS, Part 273, 16-
17, states JOM programs are based on community needs assessments, not 
the needs of the school district and therefore provide specialized 
educational services to Indian students. The JOM program is the only 
Federally-funded educational program that allows for student, parent, 
and community involvement in meeting their educational needs which are 
both academic and cultural based.
    The eligibility for Title VII students is not based on students 
being an enrolled member of Federally-recognized tribe; they simply 
need to identify themselves on a DOE Form #506. Congress reacted so 
negatively to this proposal that any further debate on these two 
programs was shelved and put to rest.
    However, the effort to eliminate JOM was resurrected in 1995. The 
effort to eliminate JOM began with the reduction and eventual phasing 
out of the regional JOM manager positions, and eventually, the 
Director's position in D.C. The Director went from a full time 
coordinator, to a quarter time position, and then phased out 
altogether. At this time, there was an effort by the BIA to put more 
emphasis and efforts into the Bureau-operated schools and wanted to 
direct JOM funds to those schools.
    JOM funding has been in a state of ``suspended animation'' since 
1995. The funding formula and the movement of JOM into TPA has caused 
many tribes and other grantee/contractors under JOM to be frozen at the 
1995 student count and funding figures, indefinitely. In 1994 the 
eligible Indian student count was 272,000 and now there is an unmet 
financial need for the additional JOM students currently being served 
by public schools throughout the nation. This student count is not an 
accurate representation of the number of Indian students served today.
    Since the freeze in 1994, there has been no correlation of 
educational services with the lack of an accurate Indian student count. 
The JOM programs are not able to show due to the freeze and those 
Indian students attending public schools are being overlooked for 
services. Without a current JOM student count, there is no way to 
estimate the current percentage of JOM students being served in 
comparison to the BIE.
    Many in Indian country believe that the Department of Interior and 
the BIE have mismanaged the JOM count for over two decades, a situation 
they many contend is a clear violation of the Federal Government's 
Trust Responsibility to Indian Country. Evidence of this mismanagement 
by BIA occurred with the FY 2007 Budget submission. Lack of program 
performance accountability, duplication of other state and federal 
programs and implementation of management efficiencies were among the 
reasons given in the budget documents for the reprogramming of twenty-
five percent of JOM funds by the BIA Tribal Budget Advisory Council 
(TBAC). The BIA has not monitored the JOM program properly since 1995, 
and thus these reasons are invalid and unverifiable. The JOM program is 
the one remaining Federal program that puts the program under the 
strict control of a LIEC.
        Legislative History of JOM and the House Subcommittee on the 
        Department of the Interior FY 1993-2017

        Source: Dept. of the Interior Budget Justifications and 
        Performance Information

        
        
        
        
        
        
        
        
        
        
        
        
        
        
        
        
        
        
        
        
        
        
        
        

Conclusion
    On behalf of the over 1.0 million Indian children eligible 
for JOM, NJOMA is elated by the Committee's speedy 
consideration of S. 943, and would urge its immediate approval. 
After 25 years of waiting for any action by Congress or the 
Administration to rectify this shameful condition that the JOM 
program exists today, we are encouraged by today's hearing and 
the Committee's pending approval of this legislation.
    We are hopeful that this Committee and the Senate will take 
quick action on this bill so that the House would have the 
opportunity to also quickly act on the bill. Given the number 
of tasks that are prescribed in the bill, we pray that all this 
work can be completed and put in place in time for the 2018-
2019 school year. To meet this proposed schedule, we need this 
bill enacted and signed by the President as soon as possible.
    Thank you.

    The Chairman. Thank you, Ms. Mann.
    We will now start with five minute rounds of questions.
    My first question is for Mr. Dearman. In regard to S. 943, 
right now, I think the number is 271,884 students as the count 
from the BIE in regard to Johnson-O'Malley total eligible 
student population. We are anticipating that it could be over 1 
million.
    How do you establish the determination of eligible Indian 
students and how are you going to make sure that you get an 
accurate count?
    Mr. Dearman. Thank you for your question, Mr. Chairman.
    We have already started conversations with the National 
Johnson-O'Malley Association and talking about how we are going 
to conduct this count.
    One of the things S. 943 will assist us in doing is 
requiring all the contractors actually report current official 
counts. We have not had that up to this point. We definitely 
need that.
    The other thing is we really have to utilize our tribes 
because the tribal enrollment from each one of our tribes is 
going to have what we are looking for because right now the 
requirement to receive services from the Bureau of Indian 
Education is you have to be a member of a federally-recognized 
tribe or you have to be one-fourth blood quantum.
    Right now, we are looking forward to working with the 
National Johnson-O'Malley Association, NIEA, NCAI and our 
Department of Education.
    The Chairman. Ms. Mann, I would like some of your thoughts 
as well in terms of how that count should be conducted.
    Ms. Mann. I agree with Mr. Dearman. We have been in talks 
and would like a working group for us to be able to look at how 
we want to continue to count after we get the baseline count 
through like the Census. That is going to give us a starting 
point.
    Right now we do not have a starting point because it has 
been so long. The last two counts that were done through the 
Bureau were really just an update, so we have no real numbers 
of what we should have except what we can see in the Census.
    At that point, they are showing at least 1 million. All of 
those students could be eligible if they meet the Bureau 
requirements which are, as Mr. Dearman said, enrolled in a 
federally-recognized tribe or at least prove they are one-
quarter blood degree.
    Like he said, the tribes are going to be key in getting 
enrollment information for us. I know in some areas the Census 
numbers may even be lower than what they are. A lot of times 
the Census takers are not able to get to some places on the 
reservations. I know those numbers could be lower as well.
    The Chairman. Mr. Wharton, there is a reserve fund that 
goes with the Klamath Tribe Judgment Fund Act. If the 
legislation is repealed, what happens to the reserve fund?
    Mr. Wharton. There are four accounts held by the Bureau of 
Indian Affairs on behalf of the Klamath Tribes. One of them is 
frequently referred to as the Litigation Account. It is an 
account that was established initially in 1958 to pay for the 
cost of litigation and $350,000 of tribal funds was put into 
that account.
    As judgments were entered and paid out, the monies from 
those judgments were set aside to continue that $350,000 in the 
account. The money in the account now is about $397,000. That 
is the $350,000 plus the interest it has accrued over time.
    With the repeal of this Act, it is my belief, based on my 
reading of 1401, that having been distributed under the Act, 
the judgment that was the source of this, these funds would 
then be eligible for the tribe to determine for themselves how 
it would be spent.
    As Mr. Dearman has indicated, we need to work with the 
Office of the Special Trustee to make sure we come to an 
agreement about how those accounts can be managed.
    The Chairman. Chief Brainard, the bill, S. 1223, would help 
your tribe in securing title insurance and completing your fee 
transactions. How does it help you accomplish that?
    Mr. Brainard. By clarifying what is required from the BIA 
or not required so the title companies and the financial 
institutions are clear about how it is supposed to operate.
    The Chairman. Senator Heitkamp?
    Senator Heitkamp. Mr. Chairman, I will defer to my 
colleagues to the left.

           STATEMENT OF HON. CATHERINE CORTEZ MASTO, 
                    U.S. SENATOR FROM NEVADA

    Senator Cortez Masto. Thank you.
    Mr. Dearman, help me understand this. I am looking at your 
testimony and was listening earlier.
    If I am correct, the student data count is taken from 1995 
which identified 271,884 eligible Indian students. However, we 
know that in 2012, there was a count identifying more, 321,273, 
and then again in 2014, the count resulted in the final student 
count of 341,495.
    We know there is more than the 1995 numbers but we also 
know, according to what you are saying, that not all the JOM 
contractors submitted data.
    As a result of that, we are going back to 1995 eligibility 
numbers even though we know it is less? Is that what I am 
hearing?
    Mr. Dearman. Yes. The counts from 2012 and 2014 could not 
be verified because not all the contractors reported.
    Senator Cortez Masto. The 1995 numbers were verified?
    Mr. Dearman. That was the last official count that is on 
record.
    Senator Cortez Masto. What do you determine is 
verification?
    Mr. Dearman. I would have to go back, Senator, and ask or 
find out. I can provide to you in writing what the process was 
in 1995.
    Senator Cortez Masto. I am curious why is it taking so long 
for this to be updated, for the information to be transparent, 
for the verification to occur?
    What is the holdup, number one? Number two, once we 
hopefully pass this bill, how can it be verified that you will 
continue to provide this updated information if you cannot do 
it now?
    Mr. Dearman. By partnering with the National Johnson-
O'Malley Center, our tribes and our contractors, actually by 
improving communications with our contractors, and creating the 
partnerships that we have created, we feel that is going to 
help us bring the JOM count up to where we need to get it and 
get the assistance we need.
    I cannot really answer for what happened in 2012 or 2014, 
but I know we are looking forward to moving forward to 
collecting and getting the official counts coming up.
    Senator Cortez Masto. Can you guarantee to us that moving 
forward you will do just that?
    Mr. Dearman. I can guarantee we are going to do everything 
we can to get that count up. The tribes are going to be a big 
part of the count and working with the tribes to get tribal 
enrollments, the U.S. Census, and cross checking the student 
data that we receive to make sure they are really eligible for 
services.
    Senator Cortez Masto. Without the hearing today, would we 
even know this updated data that has existed because, to my 
understanding, there is no transparency other than what you 
just told us?
    Mr. Dearman. I believe we have been submitting some answers 
when we receive requests.
    Senator Cortez Masto. But there is nothing on the website, 
there is nothing out there that if the tribes want that 
information, parents want that information, nobody has any 
specific data on the counts you have done and the available 
numbers, is that correct?
    Mr. Dearman. To my knowledge, it is not on our website 
right now, but we are working on getting our website to where 
it is more efficient for the public.
    Senator Cortez Masto. Does BIE have any other student data 
or student outcome-related data, for example, graduation rate 
trends, absenteeism trends in BIE schools and so forth that you 
can share with the Committee?
    Mr. Dearman. That is a great question. Since taking office 
in November, we have been behind in student data for three 
years. Since we have been there, we have actually come together 
and worked hard and are getting caught up on our student data.
    One of the things we have always been hammered with or 
talked about is our low graduation rate. Looking at and 
concentrating on our data, we are showing the 2014-2015 
graduation rate, just because we have started concentrating on 
data and really correcting how we record the data at the school 
level, right now it is 67.49 percent.
    The 2015-2016 graduation rate is showing to be 
approximately 83 percent. We are starting to focus on getting 
back to the schools and working with how we are recording the 
data. We have to do a better job of giving our schools a list 
of what we are expecting to be recorded in our system.
    Senator Cortez Masto. Do you have a plan to provide that 
data on a regular basis, whether to the Committee and/or to 
anyone else asking for that data and information?
    Mr. Dearman. Absolutely. We are currently working on a 
communications plan. Right now, our website needs to be 
revamped. That will be a good place where we can share our 
data, announcements and anything else we have going on with 
BIE.
    Senator Cortez Masto. Thank you. I appreciate the 
conversation today.
    With respect to the other bills, I am supportive. I think 
what I have heard today and in the conversations I have had, it 
makes sense to me that we should be doing everything we can to 
pass those bills.
    Let me just say I do not understand why our students in 
Indian Country deserve anything less than any other student in 
our States. It just does not make sense to me.
    Why is this happening? We need to do a better job. We need 
to do a better job of calculating that data, verifying it, not 
delaying it, and making sure we are bringing the necessary 
resources to the students who are there.
    I will be watching. I look forward to working with you to 
help collect this data.
    Thank you.
    The Chairman. Senator Daines.

                STATEMENT OF HON. STEVE DAINES, 
                   U.S. SENATOR FROM MONTANA

    Senator Daines. Thank you, Mr. Chairman and Ranking Member 
Heitkamp.
    Coming from a State that probably has a strong Indian 
Country heritage, I would say that providing our Native 
students with a strong education is absolutely an essential 
part of the U.S. trust responsibility.
    In Montana, our 12 federally-recognized tribes very much 
benefit from the Johnson-O'Malley Program which is why I was 
pleased to join Senators Heitkamp and Lankford in introducing 
the Johnson-O'Malley Supplemental Indian Education Program 
Modernization Act. This legislation will help ensure full 
participation of all eligible Indian students in this program 
which addresses their unique academic as well as cultural 
needs.
    In 2012 and 2014, and most recently in 2017, Congress 
approved Interior appropriations and was directing Interior and 
the BIE to update and report a count of Indian students 
eligible for the Johnson-O'Malley Program.
    Mr. Dearman, to your knowledge, has BIA presented the 
reports suggested in the Interior appropriations bills?
    Mr. Dearman. To my knowledge, right now there have been no 
reports submitted, but we are working on completing the 
reports. We will start getting the reports turned in on time. 
Since becoming director, one thing we are working on is our 
responsiveness.
    Senator Daines. They have set the bar pretty low in the 
past, so I am sure you can beat that. The question is, without 
having the updated counts, what is the numerical count that BIE 
currently uses for Johnson-O'Malley?
    Mr. Dearman. The 1995 official count of 271,884 students.
    Senator Daines. That is deplorable.
    Mr. Dearman. It is very low.
    Senator Daines. It is stunning. Can you imagine anyone 
running a business, running a program, using data from 1995 as 
the best data?
    Let me ask this question. Are you aware how many students 
the National Congress of American Indians and the National 
Indian Education Association see as eligible for Johnson-
O'Malley based on Census data?
    Mr. Dearman. No, Senator, I am not.
    Senator Daines. The answer is 798,486 versus the number you 
gave me of 271,884. I have each of these organizations' 
documents with me here today that I can provide.
    Roughly 800,000 versus 272,000 represents a serious gap 
between students being served and those who are supposed to be 
served. Do you believe the legislation that Senators Heitkamp 
and Lankford have proposed will help fix this disparity and 
result in a more accurate number of students served?
    Mr. Dearman. Yes, Senator, I do. That is why the department 
supports S. 943.
    Senator Daines. I appreciate the support.
    In what other ways do you see this legislation as 
beneficial to the education of Native American students?
    Mr. Dearman. The biggest part I have seen that is really 
going to help us as far as continuing to update the account is 
the reporting requirement.
    As I stated in my testimony, the 2012 and 2014 counts could 
not be verified because not all of the contractors reported. By 
law, they did not have to. S. 943 requires them to report.
    Senator Daines. So we are 22 years late at the moment. 
First of all, I appreciate your comments. I appreciate your 
commitment to getting this right. My request would be that we 
actually see results. Washington, D.C. is famous for bragging 
about activity and will brag about activity in a press release 
so folks back home think something is going on.
    The bottom line is, it is the result that ultimately 
matters. The activities can be important, but that is a means 
to an end, and that is actually getting the result and getting 
the updated numbers so we can help the students out there in 
Indian Country.
    Thank you for BIE's strong support of this legislation. I 
very much look forward to getting this legislation enacted into 
law.
    Thank you, Mr. Chairman.
    The Chairman. Senator Franken.

                 STATEMENT OF HON. AL FRANKEN, 
                  U.S. SENATOR FROM MINNESOTA

    Senator Franken. Thank you, Mr. Chairman.
    I am going to support all three pieces of legislation, the 
Johnson-O'Malley piece and the two Oregon pieces.
    Director Dearman, I just wanted to ask about something else 
but something very central to education in Indian Country. 
Indian Country has a shortage of qualified educators. We have 
to support programs to get more teachers and principals to 
tribal communities.
    Would you speak to some of the specific challenges that 
Native communities face regarding teacher shortages and 
attracting educators to Indian Country?
    Mr. Dearman. Challenges, Senator?
    Senator Franken. Challenges.
    Mr. Dearman. Isolation, drug use, abuse, low economic 
status, there are a lot of challenges.
    Senator Franken. Housing?
    Mr. Dearman. Yes, housing. May I address some of the things 
we are doing to combat that?
    Senator Franken. Sure.
    Mr. Dearman. Right now, human resources came under BIE on 
January 8, 2017. That has given us control of how we advertise. 
We have actually amended our hiring practices to match the 
States in which our schools reside because we had such 
stringent hiring qualifications that it was easier to go down 
the road and get a job in a public school than it was to get a 
job within the Bureau of Indian Education. We are making 
advertisements and qualifications match the States in which our 
schools reside.
    Also, looking at the way we advertise. Coming out of 
education, North Eastern State University in Tahlequah, 
Oklahoma, I did not know about BIE because I did not go to the 
government system to look for jobs. I went to teacher websites. 
We are really looking at how we advertise, where we advertise 
and also having outreach to universities that have teacher 
education programs.
    Senator Franken. Senator Tester, Vice Chairman Udall and I 
have a bill called the Native Educator Support and Training 
Act, the NEST Act. This bill would provide new scholarships, 
Federal student loan forgiveness, teacher development courses 
to prospective or existing educators or American Indians who 
commit to teaching at schools that serve high populations of 
Native students or both and schools that have both BIE and 
local public schools that have a high population.
    I think it is critical that we find ways to recruit and 
support teachers who come to Indian Country, particularly 
because of those challenges and because of the shortages.
    I hope that my colleagues on this Committee can continue 
to, I know Senator Heitkamp and I have done this, talk to our 
caucus. We who serve on the Indian Affairs Committee get 
testimony all the time and understand the challenges that face 
Indian Country in ways that our colleagues do not, obviously.
    I think given the special nature of these challenges and 
also our obligations, this is one area where education is so 
key and that is if you have teacher shortages, if we can make 
it easier to teach in Indian Country, given all the challenges.
    The challenges are if you are a teacher and want to bring 
your spouse and family, your spouse is going to ask about 
housing. If you have kids, they are going to ask about the 
school there. If they have health care issues, they are going 
to ask about the health care there.
    All of these tend to be challenges to recruiting folks in 
any field. We hear it on Indian health and we hear it on 
everything.
    I just want to urge my colleagues to be cognizant that 
sometimes in our caucuses we are the ones that really should be 
carrying this message.
    Thank you, Mr. Chairman.
    The Chairman. Senator Lankford.
    Senator Lankford. Thank you, Mr. Chairman.
    Tony, it is good to see you again. It is good to have a 
good Oklahoman taking care of that. I would assume that good 
Oklahoman is going to fix everything and be able to get this 
all done. We look forward to getting this resolved as well in 
the days ahead.
    Can you help me understand what has prevented BIE from 
updating the Johnson-O'Malley count for the past 21 years?
    Mr. Dearman. Right now, being unable to verify the count 
and not having a bill like S. 943 to require the contractors to 
actually report the eligible students they have in their 
programs.
    Senator Lankford. Do you think this bill really solves the 
issue? My concern is that two years from now, I do not want us 
to come back and say actually we needed something different 
than what we have. Do you feel confident this will actually get 
us up to date?
    Mr. Dearman. From what I have seen right now, I think this 
is a great start. We did have some recommendations in our 
testimony and would love to sit down with you.
    Senator Lankford. I appreciate the recommendations as well. 
There were a lot of technical aspects. What I like about your 
recommendations is you are thinking through implementation, 
that when we implement it, these are the challenges we are 
going to have, so we actually have to get this stuff fixed. To 
me, that helps us make sure we actually get this done and at 
the very last minute, there is not a pushback to say it will 
not work because of this.
    The input you gave today plus any other input you have does 
nothing but help us to be able to get the bill right. It 
improves our chances that at the end everyone is going to say 
it has been looked over by everyone. We think this is going to 
be effective at the end of it.
    The GAO, as you know, has listed Indian education on their 
high risk list. Give me some background now on what is 
happening behind the scenes to be able to get it off the list 
and where you are trying to prioritize?
    Mr. Dearman. As I stated and as I testified the last time I 
was here, that has become a priority of ours, not only in BIE 
but in Indian Affairs. We have created committees and have been 
meeting to address the GAO findings. We actually have a meeting 
Monday with GAO because, as we said in the testimony, it is a 
road map to make us better. We need to be sitting at the table 
with them to improve our system. It is still a priority.
    Senator Lankford. It is a significant priority. It is tough 
for the first time for GAO to be able to look at. They will 
stay on it and evaluate progress which is helpful and what we 
asked GAO to do to be able to help us in that journey.
    They key things they will want to see and we will want to 
see is progress, to say this has been identified and here is 
the clear problem. Here are the five steps it will take to be 
able to solve this. We are working on step 1 right now of the 
five.
    If you can help us with that, within 15 years, we can get a 
turnaround. I would love to way it is within 15 months. We all 
know it is not going to be 15 months. There are significant 
issues.
    If you can help us identify here what is the problem, there 
is the place we want to go, here are the five steps to get 
there, that will help GAO in the process and their oversight 
and that will help us as well. Quite frankly, it will help a 
lot of Native American students.
    Mr. Dearman. We would be happy to provide you with an 
update of where we are since the last testimony.
    Senator Lankford. That would be terrific. I do not want to 
take you off task of actually resolving it, but as you have 
updates, we would love to be able to get them as well.
    Mr. Dearman. Okay.
    Senator Lankford. Ms. Mann, thanks for being here as well 
and for the work you have done.
    Are there other ways to reform Johnson-O'Malley you would 
recommend that are not included in this bill that you would 
specifically recommend to us?
    Ms. Mann. Thank you, Senator.
    We have reviewed this bill over and over. I think all the 
suggestions we have in here are what we think is going to help 
the program.
    We hope to have a working group afterwards with NIEA, NCAI 
and NEA, TEDNA, several of those groups, as well as the BIE, to 
look at Federal regulations and the program in general to make 
sure we are doing everything we can to get it restarted pretty 
much so that we have regular counts, and that we know how the 
funding formulas are going to turn out. There are several 
different things we would like to do.
    By doing it with this group, we feel we will hit most of 
Indian Country throughout these working meetings.
    Senator Lankford. Terrific. Any recommendations you can get 
back to me from those conversations would be appreciated very 
much. That insight filtered to myself, Senators Heitkamp, 
Udall, Daines or any of us working on this bill all the time, 
we would be glad to be able to receive that.
    Thank you, Mr. Chairman.
    The Chairman. Senator Heitkamp.
    Senator Heitkamp. Thank you, Mr. Chairman.
    Mr. Dearman, you are the person sitting in the chair 
representing years and years and years of problems, 
programmatic problems. It is really hard to get a level of 
accountability on this side because to us it seems to be unfair 
to put this back on you.
    Can you tell me, in your judgment, what is the percentage 
high school graduation rate of Native American children?
    Mr. Dearman. At this time, Senator Heitkamp, I really do 
not have that information but I can tell you we are working 
hard to get that because BIE needs to be a data-driven, 
decision-making organization based on our student data.
    Senator Heitkamp. What is the average adverse childhood 
experience of Native American children? We do not know, do we? 
We have not calibrated exact numbers on childhood trauma and 
what that experience looks like for Native children, right?
    Mr. Dearman. We have started looking at our data with that, 
again, really looking at our system of where this data has been 
recorded, and if it has been recorded. We are starting to 
address that.
    Senator Heitkamp. What is the rate of asthma and 
respiratory problems because of environmental conditions, 
including black mold, in Native American students' homes?
    Mr. Dearman. We do not have that data.
    Senator Heitkamp. What is the rate of incarceration of 
Native American students either in juvenile detention 
facilities, Federal facilities, if in fact the activity is 
undertaken, or in State facilities?
    Mr. Dearman. Senator Heitkamp, we would love to work with 
you on priorities and things you feel we need to be looking at 
as well.
    Senator Heitkamp. I want to make a point about Senator 
Franken's comments. We began this process in our caucus because 
our frustration is, we hear the concerns and we hear the 
problems.
    I am not suggesting that you are not sympathetic or even 
appalled by what we know instinctively, but not statistically, 
about the conditions of Native American students in this 
country. It is extraordinarily hard without data to drive any 
kind of resource allocation or resource decision-making or 
innovation. As a result, we end up with this incredible lack of 
coordination and lack of real basic strategy on changing 
outcomes.
    It is the reason why Senator Murkowski and I introduced the 
Commission on the Status of Native American Children. We are in 
the process of trying to get that commission established. It 
has been funded. It is a matter of getting it up and working.
    We need your help in these counts. We cannot take the 
excuse that we are trying anymore. We have to know what they 
are because I think eventually when we come down with true 
data, we, in this country, should be ashamed of the conditions 
we have allowed Native American students to experience in their 
physical plant, their educational attainment, their vocabulary 
when they come in, the lack of support, and the lack of 
technology.
    It is all there but yet we expect different outcomes. We 
are not going to get that if we do not know what the count is 
and what we need to do. It is not just failure in Indian 
schools. It is failure in schools in Grand Forks, North Dakota, 
Fargo, North Dakota, Minot, North Dakota, and Bismarck, North 
Dakota. You will see higher rates of Title I students that are 
Native American students in those schools. You would agree, 
right?
    The Commission on Civil Rights, in the 1990s, I think did 
an actual report that looked at over representation of Native 
American students in special education programs.
    There is an urgency to this because we need data and we 
need this count. We cannot let this opportunity pass. We 
decided to give everybody the benefit of the doubt, press the 
reset button and start counting.
    Start working with Ms. Mann to make sure that you get the 
count and make sure she is getting the resources. You cannot 
get resources without knowing where to deploy them and where 
the count is.
    This may seem like a bean-counting technical bill but it is 
the foundational piece for change for Native American students. 
We are committed here on this Committee and we are committed to 
expanding our knowledge among our colleagues to continue to 
build more support but we need the institutions at the level of 
administration to work with us to get those numbers.
    I want to thank you for coming and letting me vent a little 
bit about where these problems are. Just know, I am not letting 
go of this. I do not think James is going to let go. We are not 
going to let go of this. We are going to be a dog with the 
bone.
    There is going to be accountability and eventually, we are 
going to have to call out people when they are not performing.
    Good luck. Let us know. Thank you for your support of the 
legislation. I think the invitation that Senator Lankford just 
gave both of you to rethink whether this is good enough or is 
there more is a good one.
    We are committed to working to get this over to the other 
side. We have great partnerships on the other side. We should 
have been able to do it last Congress but did not. We are going 
to get it done this Congress but it had better be right.
    It had better be complied with and we had better have 
answers in two years on how many Native American students there 
are and what are the educational challenges of those students.
    Thank you, Mr. Chairman.
    The Chairman. Senator Cortez Masto, did you have other 
questions?
    Senator Cortez Masto. No, other than, Mr. Dearman, are you 
sure you want this new job?
    Let me just say this. We vented and we have frustrations. I 
would imagine you do as well. I agree with my colleagues that 
whatever we can do to assist you, let us know. Our goal, I am 
sure, is the same as yours. I would imagine you have similar 
frustrations with what you are trying to do and achieve to the 
benefit of Native American communities. Please do not hesitate 
to reach out.
    Thank you.
    The Chairman. With that, if there are no more questions 
today, I want to remind members that they may submit follow-up 
questions for the record. The hearing record will be open for 
two weeks.
    Thank you again to our witnesses. We appreciate you being 
here.
    I also want to take a moment to say thank you to Amanda 
Kelly, who served as Clerk of this Committee not once, but 
twice. I wish her the best of luck in her new role at the Ag 
Committee where we will be seeing her, so you cannot escape 
because we are both on the Ag Committee as well.
    Thanks to our witnesses and to the Senators.
    We are adjourned.
    [Whereupon, at 3:43 p.m., the Committee was adjourned.]

                            A P P E N D I X

  Prepared Statement of Hon. Russell Begaye, President, Navajo Nation
    As President of the Navajo Nation, I am submitting the following 
written testimony to the Senate Committee on Indian Affairs (SCIA) in 
response to the July 12, 2017 legislative hearing on the Senate Bill 
943 ``Johnson-O'Malley Supplemental Indian Education Program 
Modernization Act.''
Background
    The Navajo Nation is the largest land based Indian tribe in the 
United States spanning over 27,000 square miles across three states: 
Arizona, New Mexico, and Utah. We have over 300,000 enrolled tribal 
members, with nearly 180,000 members living on the Navajo Nation.
    The Navajo Nation has been a proactive stakeholder in the education 
of our children. Through the Navajo Sovereignty in Education Act of 
2005, the Department of Dine Education (DODE) and the Navajo Nation 
Board of Education (NNBOE) were created ``to promote and foster 
lifelong learning for the Navajo people, and to protect the culture 
integrity and sovereignty of the Nation.'' Currently, the Navajo Nation 
contracts with the Bureau of Indian Education (BIE) to provide Johnson 
O'Malley (JOM) services through 27 subcontracts serving over 41,000 
students annually.
    The Johnson O'Malley (JOM) program has proven to be an effective 
and essential program for Navajo students attending public school and 
contributes to the Nation's educational goals ``to protect the 
culture'' of the Navajo Nation. During the 2014-2015 School Year, JOM 
funding provided for a variety of culturally based programs including 
Navajo language classes, Navajo Knowledge Bowls, Bilingual Showcase, 
and Navajo Spelling.
Concerns
    The Navajo Nation is greatly concerned with the poor administration 
and technical assistance provided by the BIE in regards to the JOM 
program. As discussed during the July 12, 2017 hearing, an accurate 
student count is critical for JOM program administration, budget 
justification, and the delivery of student services. Since BIE has 
struggled to effectively update the student count report, tribes and 
students have been receiving funding according to outdated students 
count report numbers from 1995. The JOM program has been underfunded 
for years, forcing JOM programs to operate on meager budgets.
Current Student Eligibility
    During the 114th Congress, Senator Heitkamp introduced a similar 
bill (S. 2842) to address the outdated JOM student count. Last year, 
during our initial review of S. 2842, the Navajo Nation Washington 
Office (NNWO) requested clarification from BIE regarding the student 
eligibility definition which states:

        ``Indian students, from age 3 years through grade(s) 12, except 
        those who are enrolled in Bureau or sectarian operated schools, 
        shall be eligible for benefits provided by a contract pursuant 
        to this part if they are 1/4 or more degree Indian blood and 
        recognized by the Secretary as being eligible for Bureau 
        services.'' (25 CFR 273.12)

    Despite the regulatory definition, BIE uses various versions of the 
eligibility definition. Listed below, with emphasis, are several 
examples of BIE's use of varying definitions:

        ``Eligible American Indian and Alaska Native students are 
        enrolled members of a federally recognized tribe or at least 
        one-fourth or more degree of Indian blood descendant of a 
        member of a federally recognized Indian tribal government 
        eligible for services from the Bureau.'' (BIE website)

        ``American Indians age 3 through grade 12 who are enrolled in 
        public schools are eligible if they are at least one fourth 
        degree of Indian blood and recognized by the Secretary of 
        Interior as eligible for BIE services.'' (Dear Tribal Leader 
        Letter, July 24, 2014)

        ``American Indians age 3 through grade 12 who are enrolled in 
        public schools are eligible if they are a member of a tribe or 
        at least one fourth degree of Indian blood and recognized by 
        the Secretary of Interior as eligible for BIE services.'' (Dear 
        Tribal Leader Letter, August 19, 2014)

        ``American Indians age 3 through grade(s) 12 who are enrolled 
        in public schools are eligible if they are either a member of a 
        tribe or at least one fourth degree of Indian blood and also 
        recognized by the Secretary of Interior as eligible for BIE 
        services.'' (Dear Tribal Leader Letter, December 2, 2014)

Suggestions for Modernization of Student Eligibility Definition
    The Navajo Nation supports the overall goal of providing clarity 
within the JOM program, especially in regards to student eligibility. 
However, the proposed legislation directs DOI to conduct an initial 
determination of eligible students within existing contracts using 
multiple sources of data. We are concerned that using the various data 
sources with varying definitions of ``American Indian/Alaska Native'' 
may result in an inflated number of eligible students, while the future 
definition of student eligibility will not be finalized until 
rulemaking is conducted and may not align with data source definitions. 
To avoid potential duplicative actions, we suggest that the rulemaking 
be conducted prior to the initial determination reports for existing 
contracting parties and new applicants.
    The use of different eligibility definitions is not only 
problematic in conducting student counts, but it could also limit 
services to otherwise potentially eligible students. The Navajo Nation 
currently administers the JOM program through 27 subcontracts using the 
regulatory student eligibility definition:

        ``1/4 or more degree Indian blood and recognized by the 
        Secretary as being eligible for Bureau services''

    For the Navajo Nation, the use of a less stringent definition, such 
as the definition used within the Elementary and Secondary Education 
Act (20 USC 7491), would result in a significantly higher number of 
eligible students.
More Students, More Funding
    An updated student count and revision of the student eligibility 
definition will undoubtedly result in an increased number of eligible 
students. However, without an increase in funding for the JOM program 
for newly identified students, the efforts of Congress, the Bureau of 
Indian Education, and Tribes will be misspent. We strongly urge 
Congress to properly reinvest in the JOM program to fully serve AI/AN 
students attending public school.
Conclusion
    In conclusion, we would like to thank the Senate Committee on 
Indian Affairs for the opportunity to submit testimony and feedback on 
S. 943. As it is the goal of the Navajo Nation to ensure delivery of 
quality education for our Navajo students, we appreciate Senators 
Heitkamp, Daines, and Lankford's efforts to improve Indian education 
through the Johnson-O'Malley program.
                                 ______
                                 
 Prepared Statement of Hon. Donald C. Gentry, Chairman, Klamath Tribes
    Chairman Hoeven, Vice Chairman Udall and members of the Senate 
Committee on Indian Affairs. My name is Donald C. Gentry. I am the 
Chairman of the Klamath Tribes. This testimony is submitted in support 
of S. 1223 which will repeal The Klamath Tribe: Judgment Fund Act of 
1965, Pub. L. 89-224 (The Judgment Fund Act). The Judgment Fund Act 
seriously compromises the Klamath Tribes sovereignty and mandates 
distribution of tribal funds in a manner detrimental to the best 
interests of the Tribes and its members. It is the last remaining 
vestige of the disastrous and ill-considered legislation that in 1954 
terminated the government-to-government relationship between the 
Klamath Tribes and the United States. That relationship was restored on 
Aug. 27, 1986 by Pub. L. 99-398, by the Klamath Tribe: Restoration of 
Federal Supervision Act.
I. The Historical Context of the Judgment Fund Act
    The Klamath and Modoc Tribes and the Yahooskin Band of Snake 
Indians (now Klamath Tribes) had their government-to-government status 
as a recognized Tribe terminated in 1954 by the Klamath Tribe: 
Termination of Federal Supervision Act, (Pub. L. 86-40; 68 Stat. 718). 
This unilateral act of the United States Congress was taken without the 
consent or support of the Klamath Tribal Government. The purpose of the 
Act was to terminate Federal supervision over the trust and restricted 
property of the Tribe, and to remove from individual members their 
status as members of a ``recognized'' tribe. As a result, the lands and 
other tribal property were monetized and distributed to individual 
members of the Klamath Tribes. In order to accomplish this a ``final 
roll'' of the members of the Tribe as of midnight August 13, 1954 was 
compiled (the 1954 enrollees). There were 2133 members on that roll. 
The more complicated process of determining which of the members were 
the so-called ``withdrawn members'' and which were the so-called 
``remaining members'' isn't germane to the consideration of S. 1223.
    In addition to the reservation property of over 850,000 acres of 
prime timber and ranch lands, the Tribe also had pending before the now 
defunct Indian Claims Commission (ICC) lawsuits against the United 
States seeking compensation for the mismanagement or misappropriation 
of tribal assets; primarily timber and ranch lands. In the 1950's, and 
until 1965, claims before the ICC and later the Court of Federal Claims 
which resulted in judgments against the United States were not paid to 
the Klamath Tribe until authorized and appropriated by Congress. As a 
result, Congress determined that it would be more efficient to adopt a 
``Judgment Fund Distribution Act'' that would allow for any funds 
secured as a result of judgment against the United States and deposited 
in the United States Treasury to the credit of the Klamath Tribe to be 
distributed in accord with the specific requirements of that Act. Thus, 
Congress adopted the Judgment Fund Act on October 1, 1965.
    The Judgment Fund Act provided for distribution of funds 
appropriated in satisfaction of judgments obtained by the Tribes, and 
all other funds deposited in the United States Treasury to the credit 
of the Klamath Tribes, to the 2133 people on the Final Roll. (Sec 4 of 
Pub. L. 89-224). All funds deposited in the Treasury regardless of the 
source (e.g., payments for rights-of-way, trespass damages, or other 
revenues, together with any interest accrued) were included in the 
application of the Act.
II. The Problem With the Judgment Fund Act
    The Judgment Fund Act's limitation on distribution of funds to 
persons on the ``final roll'', or to their heirs or legatees began to 
have unintended and deleterious results. As time went on, the 2133 
members on the final roll began to pass on. Under the terms of the 
Judgment Fund Act, their share passed to their heirs or legatees. (Sec 
2 of Pub. L. 89-224). Sometimes surviving spouses, sometimes children 
or other surviving relatives. Many of the people to whom shares passed 
were not Klamath tribal members, or even of Native American descent. As 
a result, distribution pursuant to the Judgement Fund Act has four 
impacts detrimental to the Tribes.

        1.  The Tribes have no ability to determine how tribal funds 
        can be allocated to members or other tribal priorities. Indeed, 
        many tribal members are ineligible to receive any part of the 
        distribution of such funds, and the Tribes cannot designate any 
        funds for general tribal benefit or development.

        2.  Because of inter-marriage with non-members the distribution 
        of funds under the Act result in distribution of significant 
        amounts of tribal funds to non-Indians and other non-members of 
        the Tribes.

        3.  Distribution to the living 1954 enrollees, or their current 
        heirs or legatees, requires a complicated process of 
        identification and certification of each individual, 
        necessitating an extraordinarily lengthy and extremely 
        expensive process. The costs for distribution are deducted from 
        the available funds, thus significantly reducing funds 
        available for distribution.

        4.  Should there be funds in the account which the Secretary of 
        the Interior determines are insufficient to justify further 
        distribution--which could be substantial given the 
        extraordinary cost of distribution--those funds must under the 
        Act be returned to the Treasury of the United States; not held 
        for the benefit of the Tribes.

    The Judgment Fund Act did not contemplate the August 27, 1986 
Klamath Tribe: Restoration of Federal Supervision Act, Pub. L. 99-398, 
which restored the government-to-government relationship between the 
Tribes and the United States. Restoration in part reinitiated the 
enrollment of tribal members born after the compilation of the 1954 
Final Roll. It also reinvigorated the Klamath Tribes' Government which 
manages the affairs of the Tribes. Despite the restoration of many 
tribal powers the Judgment Fund Act disallows any tribal determination 
over the distribution of funds in the United States Treasury for the 
benefit of the Tribes or any members enrolled after August 13, 1954.
III. The Effect Of Repeal
    Repeal of the Judgment Fund Act would resolve these concerns and 
allow the Tribes to determine the best use of funds presently in trust 
accounts for the benefit of the Klamath Tribes. In the absence of the 
Judgment Fund Act future distributions of funds appropriated in 
satisfaction of judgments from the United States Court of Federal 
Claims--there are no further claims before the ICC--would be made 
pursuant to the Indian Tribal Distribution of Judgment Funds Use and 
Distribution Act of October 19, 1973, 25 U.S.C.  1401 (87 Stat. 466). 
That Act by its terms applies to any ``Indian Tribe'', which includes 
the Klamath Tribes. It is presently unavailable to the Klamath Tribes 
because the 1965 Judgment Fund Act preempts its application.
IV. Conclusion
    The repeal of this last vestige of the disastrous and ill-
considered Termination Act of 1954 would be a welcome and necessary 
next step in respecting the sovereignty of the Tribes and returning the 
Klamath people to their former robust self-sufficiency.
                                 ______
                                 
   Joint Prepared Statement of James Parrish, Executive Director of 
    Education and Shane Haddock, Director of JOM. Choctaw Nation of 
                                Oklahoma
    Halito, Chairman Hoeven and members of the Senate Committee on 
Indian Affairs:
    Thank you for holding a hearing to consider S. 943, a bill that 
instructs the U.S. Department of Interior to conduct an accurate count 
of Native American students in an effort to update formula allocations 
under the Johnson-O'Malley Act (JOM). JOM programming is vital to the 
continuation and success of public school systems within the Choctaw 
Nation's treaty territory. An updated student count is long overdue.
    We applaud the Senate's leadership in this endeavor and 
wholeheartedly offer our support for passage of S. 943. The Choctaw 
Nation of Oklahoma welcomes this opportunity from your committee to 
provide comments on the importance of JOM student count and programming 
for Choctaw and native students.
    Currently, there are 85 public school districts within the Choctaw 
Nation's treaty territory in southeastern Oklahoma. Of these school 
districts, 74 have JOM programs, with 12,885 verified JOM students. 
While the vast majority of these students are Choctaw citizens, 3,161 
students are from approximately 80 other federally recognized tribal 
nations. Nonetheless, the Choctaw Nation supports all of these native 
students through our JOM programming.
    Our school districts especially appreciate the flexibility of JOM 
programming and utilize this funding in many ways. One primary use is 
providing school supplies to Native American students. But this 
hallmark federal program is much more than just school supplies. JOM 
makes a difference for Native American students by providing a funding 
source that enhances Native American students' educational 
opportunities and fills in gaps that school districts cannot fill 
themselves. For example, JOM funding has supported a number of efforts 
ranging from increasing library media to providing supplemental teacher 
salaries, motivational awards, and other incentives. For some students, 
JOM funds provide a way to take ACT and SAT tests, help cover the 
expense of attending college and career events, and pay for dues and 
fees attached to almost all student extracurricular activities.
    One especially important use of JOM funding is connecting native 
youth to their culture. Choctaw Nation utilizes JOM funds to cover the 
cost of Choctaw language tutors and teachers, as well as providing 
technology to broadcast language classes into classrooms around our 
expansive treaty territory. Choctaw Nation also uses JOM funding to 
cover the cost of providing cultural education events and activities 
such as guest speakers, tribal dancers, traditional crafts, and even 
traditional meals. These items may not seem like much to some, but for 
many Native American families in Oklahoma's Indian Country, JOM is the 
only way their children will get a chance at these opportunities.
    When the student count was frozen during the 1994-1995 school year, 
Choctaw Nation's student count was 7,395. We have grown at an average 
of 275 students per year for the past 20 years with no additional 
funding to service these students. Before the student count freeze, per 
pupil funding was $125. Now it is only at $65. Due to state budget cuts 
and increasing demands on public schools' funding, JOM funding is 
needed now more than ever. As public schools in Oklahoma grasp onto 
every dollar they have, programs related to STEM, art, athletics, and 
agriculture are being discontinued for school districts to just stay 
within their annual budget as they brace for more state funding cuts.
    Adjusting the student count is an important step to improving JOM, 
but it is just the first step. With your leadership, Congress can 
implement improvements to go even beyond adjusting the student count by 
restoring JOM funding to $125 per pupil. An increase in JOM funding 
will allow Native American students to thrive in public schools through 
their partnerships with Choctaw Nation and other tribal nations. The 
JOM Program has a mission to meet educational needs of Native American 
students as they develop into successful, healthy, self-sufficient men 
and women. The passage of S. 943 would be an important step in 
continuing this mission.
    The Choctaw Nation once again is grateful for this opportunity 
provided by Chairman Hoeven and the U.S. Senate Committee on Indian 
Affairs to provide our thoughts on the importance of S. 943 and how we 
utilize JOM programming in partnerships with public school districts to 
serve our youth. We fully support the passage of S. 943 and thank you 
for your leadership and support of Native American education. Please 
reach out to the Choctaw Nation Department of Education if we can 
provide any additional information as you consider this legislation.
                                 ______
                                 
Dear Chairman Hoeven and Vice Chairman Udall:

    On behalf of the Leech Lake Band of Ojibwe, I am writing to express 
our support for the authorization of the Johnson-O'Malley Supplemental 
Indian Education Program Modernization Act (S. 943). This legislative 
effort builds upon Congress' focus on supporting Native education in 
the 21st century. S. 943 is a step in the right direction to honor the 
fiduciary trust obligation the federal government has with tribes to 
provide parity in access and equal resources to Native education.
    The Johnson-O'Malley (JOM) program is utilized to meet specialized 
and unique educational needs of Indian students attending public and 
some tribal schools through the use of supplemental education programs. 
Such supplemental programs are designed at the local level under the 
purview of a local Indian Education Committee. Eligible JOM contract 
applicants are states, school districts, tribes, and tribal 
organizations.
    The Leech Lake Band of Ojibwe is particularly supportive of the 
push to update the JOM eligible student count and to then move towards 
reconciling the per student allocation and funding afforded the 
program. For nearly 25 years and through several Administrations, the 
Department of Interior and BIE have not attempted to finalize a count 
of the numbers of Indian students currently using or the total pool of 
eligible Indian students for JOM services. Also over this period, the 
JOM program has been all but frozen: no updated student count, no 
update of the program rules, and no real increase in funding to meet 
the real-time growth in the eligible population as noted from data 
collected for other Indian education activities and the 2010 Census.
    After 25 years of waiting for any action by Congress or the 
Administration to rectify the unacceptable conditions that the JOM 
program must exist under today, we are encouraged by the Committee's 
pending approval of this legislation. We are hopeful that this 
Committee and the Senate will take quick action on this bill so that 
the House would have the opportunity to also quickly act on the bill.
    On behalf of the over 1.0 million Indian children eligible for JOM, 
the Leech Lake Band of Ojibwe is delighted by the Committee's speedy 
consideration of S. 943, and would urge its immediate approval.
        Respectfully,
     Hon. Faron Jackson, Sr., Chairman, Leech Lake Band of 
                                                     Ojibwe
                                 ______
                                 
Dear Senator Lankford,

    On behalf of the largest population of Native American students in 
the nation, I am writing to express the Oklahoma State Department of 
Education's support for the Johnson-O'Malley Supplemental Indian 
Education Program Modernization Act. This update will allow for more 
accurate counts of Johnson-O'Malley eligible students, ensuring greater 
access to vital programs and supports for our Native American youth.
    Oklahoma's public schools serve over 130,000 Native American 
students, the largest number of Native students in any state. Oklahoma 
is home to 39 federally recognized tribes, and there are 400 Title VII 
Indian Education programs operating in our public schools. While 
Oklahoma serves more Native American students than any other state, the 
Bureau of Indian Education operates only one school in Oklahoma, and 
the vast majority of Native students participate in the public school 
system. Nowhere is there a greater need for services to support the 
success of Native American students attending public schools.
    As you know, an updated annual count of students eligible for the 
Johnson-O'Malley Program has not been conducted since fiscal year 1995, 
and that count--frozen in time over twenty years ago--is still used as 
a measure of eligible students although it does not reflect two decades 
of population growth. While we know that the number of eligible 
students has grown since 1995, funding has held static due in part to 
the frozen count, and this means that the value of the supports 
available to each participating student has actually declined. The 
proposed Modernization Act would equip the Johnson-O'Malley Program to 
better serve Native American students by providing for an up-to-date 
count of those eligible for the program.
    While we remain mindful of the particular challenges that Native 
American students face in completing an education, Oklahoma's public 
school graduation rate for Native American students is consistent with 
the state's overall rate. At nearly 83 percent, our Native American 
students' graduation rate in 2014 well exceeded the nationwide rate of 
67 percent for Native students. Oklahoma school districts work hard to 
meet the needs of our Native American students, and the Johnson-
O'Malley Program provides much-needed support to participating 
districts and tribal nations.
    The Oklahoma State Department of Education is committed to 
providing a high-quality education to all students, and recognizes our 
special role in educating the largest Native American student body in 
the country. We offer our strongest endorsement for the proposed update 
to the Johnson-O'Malley Act, which will help secure appropriate support 
for the thousands of eligible Native American students attending 
Oklahoma's public schools.
                                            Joy Hofmeister,
                        State Superintendent of Public Instruction.
                                 ______
                                 
Dear Senator Heitkamp:

    On behalf of the National Indian Education Association (NIEA), the 
only national organization advocating for improved educational 
opportunities to enable Native students to thrive in the classroom and 
beyond, I write to support Senate Bill 943, the Johnson-O'Malley 
Supplemental Indian Education Program Modernization Act. Through this 
legislation, the Department of Interior (DOI) would update student 
counts to ensure that Native students are receiving critical services 
through the Johnson-O'Malley Program.
    The Federal Government has a constitutional and legal trust 
responsibility to support equitable, excellent, culture-based 
educational options for Native students. Despite many government-to-
government agreements, ongoing budget cuts have led to limited 
educational options for Native students. To fulfill its unique 
constitutional duty, Congress must ensure that Native children have 
access to the educational resources that they deserve.
    NIEA thanks you for your leadership on updating the Native student 
counts for programs authorized under the Johnson-O'Malley Program. 
Reauthorization should include language that strengthens tribal 
sovereignty in Native language programs and provides Native students 
fair and equal access to learning their culture and languages.
    Congress enacted the Johnson-O'Malley Act of 1934 in to address 
unique academic and cultural needs of Native students. The Johnson-
O'Malley Program authorizes funding for contracts to tribal 
organizations, school districts, and partner organizations, as approved 
by the Bureau of Indian Education (BIE), to provide critical resources 
to support excellent culture-based education for Native students in 
public schools.
    Inaccurate eligible student counts result in large numbers of 
unserved students through Johnson O'Malley. According to the 2010 
Census, there were 798,486 qualified American Indian and Alaska Native 
students. However, the most recent 1995 student count of Johnson-
O'Malley resulted in 271,884 eligible students. As introduced, S. 943 
would update the 1995 Johnson-O'Malley student count to include the 66 
percent of eligible Native students that remain underserved by the 
Johnson-O'Malley program.
    Thank you for your efforts to provide Native students access to 
excellent and culture based education options. NIEA urges Congress to 
fulfill the federal trust responsibility by passing the Johnson-
O'Malley Supplemental Indian Education Program Modernization Act: we 
support your work on this legislation to provide brighter futures for 
Native students across the United States.
        Sincerely,
                                             Yatibaey Evans
    President, National Indian Education Association (NIEA)
                                 ______
                                 
                              United Tribes of North Dakota

Dear Senator Heitkamp:

    Our Board of Directors for United Tribes of North Dakota, the 
unincorporated association of all of the federally recognized Tribes in 
North Dakota, has recently passed this letter in support of the effort 
to modernize and reauthorize legislation establishing the Johnson 
O'Malley (JOM) program. This program is often overlooked and subject to 
being cut in the appropriations process, but it is a program that has 
assisted thousands of children and their parents from pre-school 
through high school who are enrolled in public schools.
    JOM is a program allowing school administrators to provide some 
benefits to Native American children whose families may not be able to 
provide basic school supplies to their children, and that can help 
parents be a more active part of their children's school activities by 
being part of an Indian Education Committee associated with the schools 
where their children attend classes. At United Tribes Technical College 
(UTTC) over the years, JOM funds have provided children with school 
supplies, allowed the establishment of an all-Indian school board for 
the elementary school at UTTC, and more recently assisted the pre-
school to have special programs recognizing the accomplishments of the 
preschoolers. These kinds of activities help get parents involved in 
the education of their children, something that has been shown to be 
vital to future success of American Indians involved in education.
    We urge you to assist all of the American Indians in the United 
States and be a co-sponsor of the legislation that will modernize the 
JOM program and that will actually acknowledge the numbers of American 
Indian children that will benefit from the program. I am certain that 
the national JOM association representatives, and our Tribal leaders 
from North Dakota, will be speaking to you about this issue, have 
further ideas and possibly a draft of the legislation, and will work 
with you as the legislation goes forward.
    We thank you again for your continued leadership in promoting the 
interests of American Indian children. I look forward to seeing you 
soon on this and other issues.
        Sincerely,
                                                Dave Flute,
                                             Chairman of the Board.
                                 ______
                                 
                           Department of Public Instruction

Dear Senator Heitkamp:

    On behalf of the more than 12,000 Native American students who are 
part of North Dakota's five federally recognized American Indian 
tribes, I am writing to offer the North Dakota Department of Public 
Instruction's enthusiastic support for S. 943, the ``Johnson-O'Malley 
Supplemental Indian Education Program Modernization Act.''
    During the 2016-17 school year, North Dakota had 12,272 Native 
American students, or 10.4 percent of our total number of students in 
grades kindergarten through 12. Of those 12,272 Native students, 
10,262, or 83.6 percent, attended North Dakota public schools.
    Johnson-O'Malley funds are distributed to federally recognized 
tribes and state public school districts to bolster vitally important 
programs and support for our Native students. These funds have been 
used to pay for tutoring, afterschool programs, school supplies, and 
materials for culturally relevant instruction.
    The Johnson-O'Malley Act awards supplemental assistance to benefit 
eligible Native students. This is an important reason why the Act 
urgently needs to be rewritten. The Bureau of Indian Affairs now uses a 
1995 count of JOM eligibles to determine money distributions. The 1995 
count underestimates the number of eligible students by up to two-
thirds, and the Bureau of Indian Education has been unable to provide a 
suitable updated number.
    S. 943 would help to remedy this problem. Its language would 
authorize a more accurate count of the number of Native students 
eligible for Johnson-O'Malley benefits. It would empower the Interior 
Secretary to identify potential sources of JOM funding, and encourage 
all eligible students to take part in the program. It would update the 
program's funding formula and eligibility definitions, and require a 
yearly accountability report to Congress.
    The Johnson-O'Malley Supplemental Indian Education Program 
Modernization Act would buttress the North Dakota Department of Public 
Instruction's commitment to providing a high-quality education to all 
students, including the thousands of Native American students in our 
public schools. Thank you for sponsoring this important legislation.
        Sincerely,
                                           Kirsten Baesler,
                              Superintendent of Public Instruction.
                                 ______
                                 
                      National Congress of American Indians

Dear Chairman Hoeven and Vice-Chairman Udall:

    On behalf of the National Congress of American Indians (NCAI), the 
oldest and largest organization of American Indian and Alaska Native 
tribal governments, we write in support of the Johnson-O'Malley 
Supplemental Indian Education Program Modernization Act (S. 943). The 
legislation directs the Secretary of Department of Education to 
determine the number of eligible Indian students, how to reconcile and 
the use the data of the student count, and to reform the funding to 
conduct the Indian student count. We understand that the Committee will 
be considering it in your hearing tomorrow and we urge the Committee to 
support this legislation. In 2013, NCAI membership passed a resolution 
in support of the program, entitled #REN-13-013, ``Supporting Use of 
Accurate Student Numbers to Create a Sustainable Johnson O'Malley 
Supplemental Indian Education Program''.
    S. 943, the Johnson-O'Malley Supplemental Indian Education Program 
Modernization Act would modernize the ability of accounting for Indian 
students attending Public Schools. The funding of the Johnson-O'Malley 
Program (JOM) is determined by the certified student count. However the 
certified student count has been stationary at 1995 levels and has not 
accounted for the significant increase in the past 20 years of Indian 
students that attend Public Schools. NCAI understands the importance of 
ensuring the accuracy of student count of Indian students, and supports 
the use of the accurate annual student counts so that JOM programs 
continue to foster and provide these important culturally sensitive 
education programs. The JOM programs are critical to the development of 
Indian students in their academics, and provide students the tools 
succeed in post-secondary education.
    Native students count, and this legislation would ensure that the 
Nation's education policy reflects that.
        Sincerely,
                                           Jacqueline Pata,
                                                Executive Director.
                                 ______
                                 
     Tribal Education Departments National Assembly (TEDNA)

Dear Chairman Hoeven and Vice Chairman Udall:

    The Tribal Education Departments National Assembly (TEDNA) writes 
in support of S. 943, the Johnson-O'Malley Supplemental Indian 
Education Program Modernization Act. TEDNA is the national membership 
organization for the Education Departments, Divisions and Agencies of 
American Indian and Alaska Native (AI/AN) Tribes. Virtually all of 
TEDNA's members and the tribal students that they serve are assisted by 
or eligible for assistance from Johnson-O'Malley (JOM) programs around 
the country.
    For over 80 years, Congress has provided JOM funding for hundreds 
of thousands of AI/AN students in K-12 schools. Today, JOM is a well-
established supplemental program intended to meet eligible AI/AN 
students' specialized and unique educational needs. While JOM programs, 
services, and activities generally are defined by federal law and 
regulation to include such things as academic support, teacher support, 
transportation, and school supplies, they also are tailorable to meet 
the specific needs of students, families and communities at the local 
level.
    JOM funds flow from the U.S. Department of the Interior annual 
appropriations to states, public school districts, tribes and tribal 
organizations, and some tribal schools. Like many federal education 
programs, JOM funding is based on a set formula, which includes a 
determination of eligible students. But unlike other federal education 
programs, the student count for JOM funding has been frozen for 
decades--the Bureau of Indian Affairs last determined eligible JOM 
students in 1995. The over-20-year-old count of 278,000 students is 
well under half of the K-12 AI/AN student population of almost 800,000 
as reflected in the 2010 Census. TEDNA knows of no other federal 
education program that has endured such disparity and inequity 
primarily due to outdated and inaccurate basic information maintained 
by a federal agency.
    Administrative and other efforts to address this unacceptable 
situation have failed. S. 943 would correct the JOM program's 
incongruence and injustice by ``directing the Secretary of the Interior 
to conduct an accurate comprehensive student count for the purpose of 
calculating formula allocations for [JOM] programs.'' TEDNA 
unequivocally supports immediate passage of S. 943 as the legislative 
solution to the full participation of AI/AN students in the schools 
they attend.
        Very Respectfully,
                                                Gloria Sly,
                                                         President.
                                 ______
                                 
                                    Muscogee (Creek) Nation

Dear Chairman Hoeven and Vice Chairman Udall;

    On behalf of the Muscogee (Creek) Nation, I am writing to express 
our support for the authorization of the Johnson-O'Malley Supplemental 
Indian Education Program Modernization Act (S. 943). This legislative 
effort builds upon Congress' focus on supporting Native education in 
the 21st century. S. 943 is a step in the right direction to honor the 
fiduciary trust obligation the Federal Government has with tribes to 
provide parity in access and equal resources to Native education.
    The Johnson-O'Malley (JOM) program is utilized to meet specialized 
and unique educational needs of Indian students attending public and 
some tribal schools through the use of supplemental education programs. 
Such supplemental programs are designed at the local level under the 
purview of a local Indian Education Committee. Eligible JOM contract 
applicants are states, school districts, tribes, and tribal 
organizations.
    The Muscogee (Creek) Nation JOM program office provides services to 
the following:

  11 Oklahoma Counties

  45 School Districts (of which one program is community based)

  17,363 Students

  103 Federally Recognized Tribes

    As a nation we strive to provide a comprehensive program that 
encumbers academic education. cultural aWareness and community 
involvement. Technical assistance is provided to JOM eligible school 
sites to facilitate parental involvement as well as a partnership that 
contributes to the academic success of all Native American students.
    The Muscogee (Creek) Nation is particularly supportive of the 
bill's push to determine a new per student allocation. In 1995 when the 
program was all but frozen in place, the individual student allocation 
was approximately $125.00 per student. However, based on the 278,000 
student count used since 1996, the current allocation has dropped to 
nearly $43.00 per student at a time when any reasonable measurement of 
the true costs of the goods, services, personnel and transportation 
costs and types of assistance needed by JOM eligible students would 
show a clear need for additional funding.
    After 25 years of waiting for any action by Congress or the 
Administration to rectify the unacceptable conditions that the JOM 
program must exist under today, we are encouraged by the Committee's 
pending approval of this legislation. We are hopeful that this 
Committee and the Senate will take quick action on this bill so that 
the House would have the opportunity to also quickly act on the bill.
    On behalf of the over 1.0 million Indian children eligible for JOM, 
the Muscogee (Creek) Nation is delighted by the Committee's speedy 
consideration of S. 943, and would urge its immediate approval.
        Sincerely,
                                            James R. Floyd,
                                                   Principal Chief.
                                 ______
                                 
                                The Nez Perce Tribe (Tribe)

Dear Chairman Hoeven and Vice Chairman Udall:

    The Nez Perce Tribe (Tribe) would like to express its support for 
the avthorization of the Johnson-O'Malley Supplemental Indian Education 
Program Modernization Act (S. 943). This legislative effort builds upon 
Congress' focus on supporting Native education in the 21st century. S. 
943 is a step in the right direction toward honoring the fiduciary 
trust obligation the Federal Government has with tribes to provide 
parity in access and equal resources to Native education.
    The Johnson-O'Malley (JOM) program is used to meet specialized and 
unique educational needs of Indian students attending public and some 
tribal schools through the use of supplemental education programs. Such 
supplemental programs are designed at the local level under the purview 
of a local Indian Education Committee. Eligible JOM contract applicants 
are states, school districts, tribes, and tribal organizations.
    The Tribe is particularly supportive of the bill's acknowledgement 
that the JOM rules, as reflected in Title 25, Code of Federal 
Regulations, are desperately outdated and lacking in the kind of 
guidance generally needed by JOM contracting parties. Many of the 
needed rule updates are to provisions that have not been reviewed or 
amended since the 1970s, or are in areas where courts have rendered 
decisions that require JOM rules to be brought into compliance with a 
court's findings. S. 943 instructions require the Director of the 
Bureau of Indian Education to undertake and complete a rulemaking 
process to determine how the regulatory definition of ``eligible Indian 
stuaent'' may be revised to clarify eligibility requirements for 
contracting parties; determine, as neoessary, how the funding formula 
may be clarified and revised to ensure full participation of 
contracting parties, provide clarity on the funding process; and 
otherwise reconcile and modernize the rules guiding the JOM program.
    After 25 years of waiting for any action by Congress or the 
Administration to rectify the unacceptable conditions that the JOM 
program must exist under today, we are encouraged by the Committee's 
pending approval of this legislation. The Tribe is hopeful that this 
Committee and the Senate will take quick action on this bill so that 
the House would have the opportunity to act quickly on the bill as 
well.
    On behalf of the over one million Indian children eligible for JOM, 
the Nez Perce Tribe is delighted by the Committee's prompt 
consideration of S. 943 and would urge its immediate approval.
        Sincerely,
                                           Mary Jane Miles,
                                                          Chairman.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Heidi Heitkamp to 
                              Tony Dearman
    Questions. Mr. Dearman, is the student count for the Johnson-
O'Malley program used for any other programs? Do you expect that once 
BEE has completed an updated, verified student count, that it would be 
used for any other purposes? Can you describe the process and number of 
staff you have who would be involved in compiling BIE's student count 
number for JOM?

    Answer. The current 1995 Johnson O'Malley (JOM) student count is 
utilized specifically for JOM programmatic funding distribution. As the 
Bureau of Indian Education (BIB) works to increase its focus on data 
across the organization, it will analyze the possibility of utilizing 
JOM data for other purposes, contingent on various programmatic 
eligibility requirements.
    Regardless, an updated count will help BIE identify need and allow 
us to better allocate resources where appropriate.
    The BIE acknowledges the need for improved coordination and 
outreach for attaining an accurate JOM student count. To that end, the 
BIE continues to work to fill the vacant Program Specialist (JOM) 
position. The JOM position will work to conduct outreach with tribes, 
Native organizations, and contractors in the fall 2017, when schools 
are in session, regarding the reconciliation of existing BIE, 
Department of Education, and Census Bureau data as well as the future 
collection of student count information. In the interim, BIE has 
detailed staff to provide outreach and carry out the position's 
functions prior to filling the vacancy.
    BIE looks forward to working with Members of the Senate Indian 
Affairs Committee and key stakeholders to reconcile existing data as 
well as implement regular and accurate student counts going forward.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Heidi Heitkamp to 
                               Carla Mann
    Questions. Can you provide a brief description of how the JOM 
student count process operated prior to 1995, and how that compared to 
the actions BIE undertook in 2012, 2014 and 2016? Would you suggest 
that BIE use the same process utilized prior to 1995 to conduct and 
prepare the updated JOM student count required by S. 943?

    Answer.

  JOM Student Count Procedures

  The JOM Student count process prior to 1995 was conducted 
        annually by the Tribes, School Districts and Native Serving 
        Organizations holding JOM contracts with BIE during the month 
        of October.

  The first full week of October was generally observed as 
        ``JOM Count Week,'' all schools would endeavor to count JOM 
        students on their highest enrollment day.

  Notice of the Annual Student count was published [30-45 days] 
        in advance of ``count week'' in the Federal Register by BIE.

  Instructions detailing the count and reporting processes were 
        detailed in the Federal Register Notice.

  All students were verified eligible for services, by 
        utilizing individual Certificates of Indian Blood (CIB's).

  Once certified, the count numbers were sent to our local BIA, 
        and the BIA Line Officer at the Regional Bureau of Indian 
        Affairs.

  Each regional BIA office compiled the numbers reported in 
        their region, and then sent them to the BIA Central office, in 
        Washington DC.

    Post 1996 JOM Student Count Activities

    [Note: Despite the ending of formal JOM counts, many tribes still 
count the first full week of October, so that they can get updated 
numbers and to certify all eligible students.]

  FY 2012 Count

  The above detailed process was not followed in 2012 in part, because 
        Congress only directed the BIE ``update'' the student numbers 
        from 1996.'' BIE did publish a Notice in the Federal Register 
        in May 2013 calling for all current contractors to report their 
        current student enrollment but little additional effort was 
        expended to alert or advertise the announcement of this count.
  Sadly, many of the reporting contractors only reported numbers based 
        on their ``contracted count level'' verses the actual number of 
        students currently ``eligible for JOM services.'' In the rare 
        cases where contractors did report a true count of their 
        enrolled students, there was no effort made to determine if the 
        current student population being served represented a count of 
        all the students eligible for services [this was particularly 
        noted in School districts where new schools have been added 
        since 1996, and their 1996 contracts only authorized services 
        in previously approved school sites]. Also, as you might 
        assume, most school personnel and tribal JOM Directors do not 
        read the Federal Register, and were not aware of the May 2013 
        request. In fact, most schools were already out of school or, 
        preparing for the end of the school year.

  FY 2014

  In 2014, the language from the Omnibus bill directed BIE to conduct a 
        ``comprehensive count of all eligible JOM students 
        nationwide''. The BIE was given (in the January 2014 Omnibus 
        appropriations bill) until 9/30/14 to complete this count. On 
        July 27 BIE began mailing letters to all Tribal Leaders 
        requesting that they report their JOM student counts to BIE 
        Headquarters via form made available only on the BIE website. 
        Again, this process was directed when school is out of session, 
        and contractors, other than Tribal Leaders, were not notified. 
        In some instances, not all Tribal leaders received the letter, 
        or the information was not received by the JOM offices that are 
        responsible for the count.

  FY 2016

  The count directive from the Omnibus bill in 2016, has not yet been 
        complied with the BIE.

    Question. Would NJOMA want to follow the same process that was 
followed prior to 1995?
    Answer. NJOMA, would say no.
    The counts from 2012 and 2014 show that the BIE is not capable of 
doing a comprehensive count that identifies the true size of the JOM 
``eligible student population'' across the nation. The downsizing of 
BIE and other reorganizational activities have had a significantly 
negative impact on BIE's data management capabilities. We would also 
question BIE's baseline ability to design, construct and conduct the 
kind of data collection effort that would bridge the 21 year gap in 
collection of any data that would track the growth in Native American 
and Alaskan Native populations shown in the broader society. For this 
reason, NJOMA is supportive of S.943's intent to direct BIE to utilize 
widely accepted population/demographic data to create a new ``model 
baseline count of all JOM eligible students.' We believe that once a 
new baseline projection and count is accomplished, that appropriate 
steps can then be taken to reconcile actual student counts, and further 
steps can then be taken to conduct annual counts that would be more 
routine for contractors and the BIE.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Heidi Heitkamp to 
                           Donald R. Wharton
    Questions. S. 943 directs the Secretary of the Interior to report 
annually to Congress on all contracts performed under JOM. Should we 
(Congress) feel confident that the annual reporting provisions in S. 
943 for the JOM program are sufficient? If not, what changes would you 
recommend? What tools exist in federal law or court decisions to 
enforce this provision?
    Answer. Thank you for the invitation to respond to the question. 
Since S. 943 does not have any provision concerning reporting under JOM 
the Klamath Tribes offer no opinion on this issue.

                                  [all]