[Congressional Record Volume 164, Number 195 (Tuesday, December 11, 2018)]
[House]
[Pages H10039-H10041]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 JOHNSON-O'MALLEY SUPPLEMENTAL INDIAN EDUCATION PROGRAM MODERNIZATION 
                                  ACT

  Mr. ESTES of Kansas. Mr. Speaker, I move to suspend the rules and 
pass the bill (S. 943) to direct the Secretary of the Interior to 
conduct an accurate comprehensive student count for the purposes of 
calculating formula allocations for programs under the Johnson-O'Malley 
Act, and for other purposes, as amended.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                                 S. 943

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Johnson-O'Malley 
     Supplemental Indian Education Program Modernization Act''.

     SEC. 2. INDIAN EDUCATION PROGRAM STUDENT COUNT UPDATE.

       The Act of April 16, 1934 (25 U.S.C. 5342 et seq.) 
     (commonly referred to as the Johnson-O'Malley Act) is amended 
     by adding at the end the following:

     ``SEC. 7. COMPUTATION OF STUDENT COUNT.

       ``(a) Definitions.--For the purposes of this Act, the 
     following definitions apply:
       ``(1) Contracting party.--The term `contracting party' 
     means an entity that has a contract through a program 
     authorized under this Act.
       ``(2) Eligible entity.--The term `eligible entity' means an 
     entity that is eligible to apply for a contract for a 
     supplemental or operational support program under this Act, 
     as outlined in section 1.
       ``(3) Existing contracting party.--The term `existing 
     contracting party' means a contracting party that has a 
     contract under this Act that is in effect on the date of 
     enactment of the JOM Modernization Act.
       ``(4) JOM modernization act.--The term `JOM Modernization 
     Act' means the Johnson-O'Malley Supplemental Indian Education 
     Program Modernization Act.
       ``(5) New contracting party.--The term `new contracting 
     party' means an entity that enters into a contract under this 
     Act after the date of enactment of the JOM Modernization Act.
       ``(6) Secretary.--The term `Secretary' means the Secretary 
     of the Interior.
       ``(b) Determination of the Number of Eligible Indian 
     Students.--
       ``(1) Initial determinations.--
       ``(A) In general.--The Secretary shall make an initial 
     determination of the number of eligible Indian students 
     served or potentially served by each eligible entity in 
     accordance with subparagraph (B).
       ``(B) Process for making the initial determination.--
       ``(i) Preliminary report.--Not later than 180 days after 
     the date of enactment of the JOM Modernization Act, the 
     Secretary shall publish a preliminary report describing the 
     number of eligible Indian students served or potentially 
     served by each eligible entity, using the most applicable and 
     accurate data (as determined by the Secretary in consultation 
     with eligible entities) from the fiscal year preceding the 
     fiscal year for which the initial determination is to be made 
     from--

       ``(I) the Bureau of the Census;
       ``(II) the National Center for Education Statistics; or
       ``(III) the Office of Indian Education of the Department of 
     Education.

       ``(ii) Data reconciliation.--To improve the accuracy of the 
     preliminary report described in clause (i) prior to 
     publishing, the Secretary shall reconcile the data described 
     in the preliminary report with--

       ``(I) each existing contracting party's data regarding the 
     number of eligible Indian students served by the existing 
     contracting party for the fiscal year preceding the fiscal 
     year for which the initial determination is made; and
       ``(II) identifiable tribal enrollment information.

       ``(iii) Comment period.--After publishing the preliminary 
     report under clause (i) in accordance with clause (ii), the 
     Secretary shall establish a 60-day comment period to gain 
     feedback about the preliminary report from eligible entities, 
     which the Secretary shall take into consideration in 
     preparing the final report described in clause (iv).
       ``(iv) Final report.--Not later than 120 days after 
     concluding the consultation described in clause (iii), the 
     Secretary shall publish a final report on the initial 
     determination of the number of eligible Indian students 
     served or potentially served by each eligible entity, 
     including justification for not including any feedback gained 
     during such consultation, if applicable.
       ``(2) Subsequent academic years.--For each academic year 
     following the fiscal year for which an initial determination 
     is made under paragraph (1) to determine the number of 
     eligible Indian students served or potentially served by a 
     contracting party, the Secretary shall determine the number 
     of eligible Indian students served by the contracting party 
     based on the reported eligible Indian student count numbers 
     identified through the reporting process described in 
     subsection (c).
       ``(c) Contracting Party Student Count Reporting 
     Compliance.--
       ``(1) In general.--For each academic year following the 
     fiscal year for which an initial determination is made under 
     subsection (b) to determine the number of eligible Indian 
     students served or potentially served by a contracting party, 
     the contracting party shall submit to the Secretary a report 
     describing the number of eligible Indian students who were 
     served using amounts allocated to such party under this Act 
     during the previous fiscal year. The report shall also 
     include an accounting of the amounts and purposes for which 
     the contract funds were expended.
       ``(2) Failure to comply.--A contracting party that fails to 
     submit a report under paragraph (1) shall receive no amounts 
     under this Act for the fiscal year following the academic 
     year for which the report should have been submitted.
       ``(3) Notice.--The Secretary shall provide contracting 
     parties with timely information relating to--
       ``(A) initial and final reporting deadlines; and
       ``(B) the consequences of failure to comply outlined in 
     paragraph (2).
       ``(4) Technical assistance.--The Secretary, acting through 
     the Director of the Bureau of Indian Education, shall provide 
     technical assistance and training on compliance with the 
     reporting requirements of this subsection to contracting 
     parties.
       ``(d) Annual Report.--
       ``(1) In general.--The Secretary shall prepare an annual 
     report, including the most recent determination of the number 
     of eligible Indian students served by each contracting party, 
     recommendations on appropriate funding levels for the program 
     based on such determination, and an assessment of the 
     contracts under this Act that the Secretary--
       ``(A) may include in the budget request of the Department 
     of the Interior for each fiscal year;
       ``(B) shall submit to--
       ``(i) the Committee on Indian Affairs of the Senate;
       ``(ii) the Subcommittee on Interior, Environment, and 
     Related Agencies of the Committee on Appropriations of the 
     Senate;
       ``(iii) the Committee on Education and the Workforce of the 
     House of Representatives; and
       ``(iv) the Subcommittee on Interior, Environment, and 
     Related Agencies of the Committee on Appropriations of the 
     House of Representatives; and
       ``(C) shall make publicly available.
       ``(2) Manner of preparation.--The Secretary shall prepare 
     the report under paragraph (1) in a manner so as to prevent 
     or minimize new administrative burdens on contracting parties 
     receiving funds under this Act.
       ``(e) Hold Harmless.--
       ``(1) Initial hold harmless.--
       ``(A) In general.--Except as provided under subparagraph 
     (B) and subject to subparagraphs (C) and (D), for a fiscal 
     year, an existing contracting party shall not receive an 
     amount under this Act that is less than the amount that such 
     existing contracting party received under this Act for the 
     fiscal year preceding the date of enactment of the JOM 
     Modernization Act.
       ``(B) Exceptions.--
       ``(i) In general.--An existing contracting party shall 
     receive an amount under this Act for a fiscal year that is 
     less than the amount that the existing contracting party 
     received under this Act for the fiscal year preceding

[[Page H10040]]

     the date of enactment of the JOM Modernization Act, if 1 or 
     more of the following conditions is met:

       ``(I) Failure to report.--The existing contracting party 
     failed to submit a complete report described in subsection 
     (c) that was most recently due from the date of the 
     determination.
       ``(II) Violations of contract or law.--The Secretary has 
     found that the existing contracting party has violated the 
     terms of a contract entered into under this Act or has 
     otherwise violated Federal law.
       ``(III) Student count decrease.--The number of eligible 
     Indian students reported by such existing contracting party 
     under subsection (c) has decreased below the number of 
     eligible Indian students served by the existing contracting 
     party in the fiscal year preceding the date of enactment of 
     the JOM Modernization Act.

       ``(ii) Amount of funding reduction for existing contracting 
     parties reporting decreased student counts.--A reduction in 
     an amount pursuant to clause (i)(III) shall not be done in 
     such a manner that the existing contracting party receives an 
     amount of funding per eligible Indian student that is less 
     than the amount of funding per eligible Indian student such 
     party received for the fiscal year preceding the date of 
     enactment of the JOM Modernization Act.
       ``(C) Ratable reductions in appropriations.--If the funds 
     available under this Act for a fiscal year are insufficient 
     to pay the full amounts that all existing contracting parties 
     are eligible to receive under subparagraph (A) for the fiscal 
     year, the Secretary shall ratably reduce those amounts for 
     the fiscal year.
       ``(D) Sunset.--This paragraph shall cease to be effective 4 
     years after the date of enactment of the JOM Modernization 
     Act.
       ``(2) Maximum decrease after 4 years.--Beginning 4 years 
     after the date of enactment of the JOM Modernization Act, no 
     contracting party shall receive for a fiscal year more than a 
     10 percent decrease in funding per eligible Indian student 
     from the previous fiscal year.
       ``(f) Funding Allocation and Reform.--
       ``(1) Funding reform.--The Secretary may make 
     recommendations for legislation to increase the amount of 
     funds available per eligible Indian student through contracts 
     under this Act to equal to or greater than the amount of 
     funds that were available per eligible Indian student through 
     contracts under this Act for fiscal year 1995, and attempt to 
     identify additional sources of funding that do not reallocate 
     existing funds otherwise utilized by Indian students served--
       ``(A) by the Bureau of Indian Education; or
       ``(B) under title VI of the Elementary and Secondary 
     Education Act of 1965 (20 U.S.C. 7401 et seq.).
       ``(2) Increases in program funding.--
       ``(A) In general.--Subject to subsection (e) and 
     subparagraph (B), for any fiscal year for which the amount 
     appropriated to carry out this Act exceeds the amount 
     appropriated to carry out this Act for the preceding fiscal 
     year, the excess amounts shall--
       ``(i) be allocated only to those contracting parties that 
     did not receive their full per student funding allocation for 
     the previous fiscal year; and
       ``(ii) be allocated first to new contracting parties that 
     did not receive their full per student funding allocation for 
     the previous fiscal year.
       ``(B) Parity in funding.--Subparagraph (A) shall have no 
     effect after the first fiscal year for which each contracting 
     party receives their full per student funding allocation.
       ``(g) Increased Geographical and Tribal Participation in 
     the Johnson-O'Malley Supplementary Education Program.--To the 
     maximum extent practicable, the Secretary shall consult with 
     Indian tribes and contact State educational agencies, local 
     educational agencies, and Alaska Native organizations that 
     have not previously entered into a contract under this Act--
       ``(1) to determine the interest of the Indian tribes, State 
     educational agencies, local educational agencies, and Alaska 
     Native organizations, in entering into such contracts; and
       ``(2) to share information relating to the process for 
     entering into a contract under this Act.
       ``(h) Rulemaking.--
       ``(1) In general.--Not later than one year after the date 
     of enactment of the JOM Modernization Act, the Secretary, 
     acting through the Director of the Bureau of Indian 
     Education, shall undertake and complete a rulemaking process, 
     following the provisions of subchapter II of chapter 5 of 
     title 5, United States Code, to--
       ``(A) determine how the regulatory definition of `eligible 
     Indian student' may be revised to clarify eligibility 
     requirements for contracting parties under this Act;
       ``(B) determine, as necessary, how the funding formula 
     described in section 273.31 of title 25, Code of Federal 
     Regulations (as in effect on the day before the date of 
     enactment of the JOM Modernization Act) may be clarified and 
     revised to ensure full participation of contracting parties 
     and provide clarity on the funding process under this Act; 
     and
       ``(C) otherwise reconcile and modernize the rules to 
     comport with the activities of the contracting parties under 
     this Act as of the date of enactment of the JOM Modernization 
     Act.
       ``(2) Report.--Not later than 30 days after the date the 
     rulemaking under paragraph (1) is complete, the Secretary 
     shall submit a report to Congress describing the results of 
     such rulemaking and necessary recommendations to ensure the 
     full implementation of such rulemaking.
       ``(i) Student Privacy.--The Secretary shall ensure that 
     data is collected and each report is prepared under this 
     section in a manner that protects the rights of eligible 
     Indian students in accordance with section 444 of the General 
     Education Provisions Act (commonly referred to as the Family 
     Educational Rights and Privacy Act of 1974) (20 U.S.C. 
     1232g).
       ``(j) GAO Report.--Not later than 18 months after the final 
     report described in subsection (b)(1)(B)(iv) is published, 
     the Comptroller General shall--
       ``(1) conduct a review of the implementation of this 
     section during the preceding two-year period, including any 
     factors impacting--
       ``(A) the accuracy of the determinations of the number of 
     eligible Indian students under this section;
       ``(B) the communication between the Bureau of Indian 
     Education and contracting parties; and
       ``(C) the efforts by the Bureau of Indian Education to 
     ensure accurate and sufficient distribution of funding for 
     Indian students;
       ``(2) submit a report describing the results of the review 
     under paragraph (1) to--
       ``(A) the Committee on Indian Affairs of the Senate;
       ``(B) the Subcommittee on Interior, Environment, and 
     Related Agencies of the Committee on Appropriations of the 
     Senate;
       ``(C) the Subcommittee on Indian, Insular and Alaska Native 
     Affairs of the Committee on Natural Resources of the House of 
     Representatives; and
       ``(D) the Subcommittee on Interior, Environment, and 
     Related Agencies of the Committee on Appropriations of the 
     House of Representatives; and
       ``(3) make such report publicly available.
       ``(k) Effect.--Nothing in this section--
       ``(1) creates a new program or duplicates program 
     activities under this Act; or
       ``(2) replaces or diminishes the effect of regulations to 
     carry out this Act existing on the day before the date of 
     enactment of the JOM Modernization Act, unless expressly 
     provided in this section.''.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Kansas (Mr. Estes) and the gentleman from Arizona (Mr. Grijalva) each 
will control 20 minutes.
  The Chair recognizes the gentleman from Kansas.


                             General Leave

  Mr. ESTES of Kansas. Mr. Speaker, I ask unanimous consent that all 
Members may have 5 legislative days in which to revise and extend their 
remarks and include extraneous material on S. 943.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Kansas?
  There was no objection.
  Mr. ESTES of Kansas. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, I rise today in support of S. 943, the Johnson-O'Malley 
Supplemental Indian Education Program Modernization Act.
  The Johnson-O'Malley Program was first established in 1934 to support 
the unique educational needs of American Indian students. Through the 
program, Native students have access to tutoring, Native language 
classes, cultural activities, afterschool programming, books and 
supplies, and other programs and items to support their educational 
pursuits.
  For American Indian students, this program could be a lifeline. The 
Johnson-O'Malley Program has the ability to make the difference in a 
student's life, and it is essential that we take strides to make this 
program as efficient and effective as possible. As it turns out, there 
is much work to be done.
  The Bureau of Indian Education contracts with Tribes, Tribal 
organizations, and sometimes States and public school districts to 
distribute program funds. The Johnson-O'Malley Act stipulates that 
funds be distributed to contractors based on the count of American 
Indian students and average per-pupil operating costs. The formula 
makes sense, except for the fact that the most recent student counts 
are from 1995.
  After the 1995 freeze, the BIE ceased collecting student data and all 
information regarding Johnson-O'Malley projects and program outcomes. 
This has allowed contractors to collect funds based on data from over 
20 years old. This kind of program mismanagement deprives students of 
educational opportunity in schools where student populations have grown 
and wastes taxpayer dollars in schools where student counts have 
declined.
  Since fiscal year 2012, Congress has directed the BIE to count the 
actual

[[Page H10041]]

number of students who are eligible for and participating in the 
Johnson-O'Malley Program and recommend a methodology to distribute 
funds in the future. Yet, to date, the BIE has not conducted an 
accurate student count.
  S. 943 amends the Johnson-O'Malley Act to require the Department of 
the Interior to update its count of students who are served by the 
Johnson-O'Malley Program each year. The legislation strengthens program 
accountability and oversight by requiring program contractors to report 
the amounts and purposes for which funds are spent. This will provide 
sufficient information to conduct the necessary oversight of the 
program.
  The bill also directs program facilitators to submit an annual 
program assessment report to Congress, and establishes a consultation 
process between the Secretary of the Interior and Tribal schools so 
that students may be better served.
  We owe it to Native students to make this well-intentioned program as 
effective as it can be, and I urge my colleagues to support this 
legislation.
  Mr. Speaker, I reserve the balance of my time.
  Mr. GRIJALVA. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I also rise in support of S. 943, the Johnson-O'Malley 
Supplemental Indian Education Program Modernization Act.
  The abysmal conditions and status of education attainment and 
achievement of American Indian children and students continues. This 
educational gap for American Indian students continues to lag behind 
all other students in this country.
  This bill would require the Department of the Interior to annually 
update the count of American Indian and Alaska Native students so the 
Department can more accurately distribute Johnson-O'Malley funds which 
supplement Indian education. The bill would also require grantees to 
report how funds are being used, helping to ensure Federal dollars 
support Native students' education.
  The Federal Government has a responsibility to provide parity in 
resources to Native education. Currently, the Department is prevented 
from updating the count because of an effort, from over 20 years ago, 
to cut spending through the use of block grants.
  Congress, at the time, determined one way to reduce funding for 
Indian education was to freeze efforts to count the number of Native 
students. As a result, the Department of the Interior continues to use 
the 1994 number of 272,000 Native students, even though it is 
estimated, based on Census reports, that there are now more than 
750,000 Native students. This policy is just another in a long list of 
the second-class treatment of American Indians by our government.
  I want to thank my colleague, Betty McCollum, for introducing this 
version of the legislation and my Republican colleagues,  Tom Cole and  
Don Young, for providing bipartisan support. My hope is that the 
passage of this bill is a first step, however small it may be, to 
righting a wrong to American Indian students.
  Mr. Speaker, I urge my colleagues to support S. 943, and I yield back 
the balance of my time.
  Mr. ESTES of Kansas. Mr. Speaker, I yield myself the balance of my 
time.
  Mr. Speaker, as I mentioned, the last official count of eligible 
students was conducted in 1995, which determined that there were nearly 
272,000 American Indian students who were qualified for the Johnson-
O'Malley Program. However, in 2017, the Congressional Budget Office 
estimated that there were an additional 80,000 students who would 
qualify. Clearly, this bill is needed and overdue.
  Currently, the program receives $14.9 million, annually, in funding. 
Modernization of this act will cost an estimated $13 million over the 
next 4 years. This is an important investment in the future of our 
country, and those students deserve our support.
  This legislation improves and strengthens the Johnson-O'Malley 
Program, and I urge my colleagues to support S. 943.
  Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Kansas (Mr. Estes) that the House suspend the rules and 
pass the bill, S. 943, as amended.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill, as amended, was passed.
  A motion to reconsider was laid on the table.

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