[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.
____________________