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Committee on Education and Labor

U.S. House of Representatives

NCLB Testimony

September 9, 2008

Respectfully Submitted

Theodore L Hamilton

Executive Director

\(605\) 455-2678

Hamilton@gwtc.net

**Introduction**

Thank you, Chairman Kildee and Ranking Member Castle, for inviting me to
testify today. My name is Ted Hamilton and I am the executive director
of the Oceti Sakowin Education Consortium

The Oceti Sakowin Education Consortium is a consortium of fourteen
tribal schools and four tribal colleges in South and North Dakota (see
appendix 1). The Consortium provides a wide range of services to the
schools including teacher professional development, school improvement
planning, board training, special education technical assistance and
collaborative hiring, early childhood programming and supplemental
student service activities. (http://www.osdlc.org) The Consortium has
been in existence since 2000, currently has a staff of 17 and has an
annual operating budget of 2.4 million dollars.

In the past eight years, OSEC staff have provided services to schools at
the request of school superintendents and principals through a
cooperative like structure. Unlike a traditional educational cooperative
model, OSEC maintains a school needs-based model that creates annually
contracted projects specifically developed for each school\'s needs.
This process is more time-consuming and less secure than tax-funded
programs, but it does provide a clear picture of the needs of schools
and our higher education partners. I want to stress that OSEC is not an
advocacy or representative organization. The schools that are our
members own us, and we believe that our school boards and tribal
education departments should be heard in policy level discussions. We do
provide technical support as requested relating to policy-level
decisions.

I have been asked today to discuss the work our organization is doing
related to the creation of a definition of Adequate Yearly Progress for
some of our member schools, our reaction to the GAO study related to the
Bureau of Indian Affairs Office of Indian Education Program\'s
implementation of the alternative AYP process for tribes under NCLB and
to also make some comments on other issues important to our membership.

I would like to focus my remarks on four areas:

**No Child Left Behind Issues**

**Access to \"qualified\" teachers**

**Facilities and Transportation**

**BIE Restructuring/BIE and State Relationships**

**No Child Left Behind**

The Government Accountability Office Report (GAO) concerning the
alternative definition of adequate yearly progress is a good case to
point out the more general difficulties our schools are having with the
BIE system.

When No Child Left Behind was authorized there was a process defined in
the Act for tribal input called Negotiated Rulemaking. During the
Negotiated Rulemaking process which is designed to provide input into
regulations, members of the rulemaking committee were assured that
tribes would be provided support, both technical and fiscal, in
development of alternative assessments and standards. As an interim
step, schools would follow the accountability workbook of the states in
which they reside. Two members of the Negotiated Rulemaking Committee,
Dr. Roger Bordeaux of Tiospa Zina Tribal School and Deb Bordeaux of
Loneman School, argued against the use of State workbooks and their
associated standards, and finally, reluctantly, agreed to the State
standards and assessment provisions provided the BIA provide support for
the alternative adequate yearly progress process.

Upon returning home, Deb Bordeaux and Dr. Bordeaux contacted the schools
in South Dakota. Dr. Bordeaux, who was serving a term on the Oceti
Sakowin Education Consoritum board, asked OSEC help coordinate an
initial meeting in Pierre, South Dakota at the Pierre Indian Learning
Center to discuss No Child Left Behind and to explore the concept of an
alternative definition of AYP. At the end of that meeting, eight schools
had decided they would pursue an alternative definition by pooling \$
5,000.00 each to help defray the costs. OSEC was asked to manage the
process and to act as a single point of contact with the BIA on the
project. I am attaching to this document an appendix with a timeline of
our work on the AYP issue and some of the hurdles placed in front of us
by the Bureau.

The first year of our attempts to get this work done, we were told
repeatedly by the Bureau that we could not apply as a group of schools
for an alternative definition, were told that it would be too expensive
and that there was no money for this type of work. We were required to
have our school boards pass multiple resolutions agreeing to work
together through the OSEC organizational structure and we generally did
not receive any correspondence from the Bureau other than letters
telling us they did not have to help us.

In reading the No Child Left Behind Act, Tribes and Tribal Schools that
wish to waive the State definition for their own definition are required
to submit an alternative definition within 60 days of alerting the
Secretary of Interior of their intent to waive NCLB requirements. The
Secretary of Interior is then required to give a written response either
supporting or denying the waiver. This allows the Tribe or Tribes to
begin a negotiation process with Interior. After four submissions
beginning in 2005, the OSEC schools finally received their first written
response to their proposed definition in August of 2008.

A significant aspect of developing an alternative definition of adequate
yearly progress is the creation of educational standards and an
assessment tool to assess if students have mastered the standards at the
basic, proficient or advanced level. At the core of our concern about
using State AYP definitions is the lack of culturally appropriate
content standards. In the US Code of Federal Regulations (25CFR, CH 1,
Subpart C 36.1, 2008 edition) it states:

> \(1\) The school\'s language arts program shall assess the English and
> native language abilities of its students and provide instruction that
> teaches and/or maintains both the English and the primary native
> language of the school population. Programs shall meet local tribal
> approval.
>
> \(2\) The school program shall include aspects of the native culture
> in all curriculum areas. Content shall meet local tribal approval.

The State of South Dakota does not develop its educational standards to
meet the regulations above and is not bound by the regulations above.
The purpose for development of an alternative definition of AYP is to
ensure that the content being taught to our children is culturally-based
and that native language is maintained.

Our organization has asked repeatedly for funding to develop assessment
instruments for the standards we have created. We met with the BIE and
DOE officials in late November of 2007 and were told funding would be
available for assessment development. We were told to conduct a bidding
process with companies for assessment development, create a plan and
submit that plan. This was the third time we had completed this process.
We also submitted our third accountability workbook for approval at that
time. To help us, we were assigned a consultant from the Department of
Education, Mr J.P. Boudain. Mr. Boudain helped us review the bids that
we received and then helped create the final budget that we submitted on
March 4th of 2008. The BIE sent Mr. Stan Holder to South Dakota on April
8th to tell us that the BIE was willing to fund the project but at 1/3
less the amount than was requested. He also indicated that we would have
to have tribal council resolutions to proceed, once again delaying the
process contrary to NCLB regulations. We were also left unsure of
on-going funding for the project. We found this frustrating as this was
our third time for bidding this project and we built the final budget
based on the guidance from the consultant provided by the Government. We
asked for a written response to our accountability workbook and for our
request for assessment development funding.

In May 2008, we were informed that the BIE had hired a consultant to
help us with development of the accountability workbook and the
assessment development process. The person assigned this time was again
Mr.Boudain. J.P. met with our development committee via phone conference
and on June 11th we submitted our fourth accountability workbook with a
request that we receive a response for each critical element in writing.
Mr Boudain commented that the OSEC group had already done the work and
that he would have to work with the BIE to help them with an approval
process. Mr. Boudain has not met with our group again and when contacted
has indicated he has been focused on working with the BIE staff. I find
it ironic that the BIE hires a consultant to \"help\" our schools who
then spends the bulk of his time helping the BIE. We received a response
in August and have asked for a meeting on September 12th to discuss the
BIE position on the workbook. We still have not heard anything about
funding for the assessment development activities nor have we heard back
about the September 12th meeting.

In reflecting on the GAO study, it is apparent that the BIE has not
provided guidance to the tribes related to their rights under NCLB. When
our group discussed the possibilities with Dr. Pat Abeyta and other BIE
staff we were reminded that funding was not available, that it would be
too much work, and that it was the BIE responsibility to act as the
State Education Agency for the tribes. We question if tribes that chose
to not pursue their own accountability workbook did so as a reaction to
BIE staff not supporting tribal sovereignty.

We have tried to keep line officers informed of our progress and have
found that they receive very little information or guidance related to
the AYP process as the GAO study indicates. Our tribal education
departments and tribal councils depend on the Line Offices to keep them
informed of BIE policies and procedures.

We also noted the GAO study stated that there were no issues in
establishing an MOU between the State of South Dakota and the BIE. The
BIE approached the State through Bonnie Haines of the Lower Brule Line
Office who informed the Secretary that the BIE represented all funded
and operated schools. We found this to be a strange finding as the MOU
was completed without the knowledge of our school administrators, tribal
education departments and especially our tribal councils. Once the MOU
was made public, the schools and tribal council representatives held
meetings with Dr. Rick Melmer, the State Secretary of Education
expressing concern for the process and asking him to consider rescinding
the MOU.

The frustration with this situation is NCLB provides opportunities for
tribes to have significant voice on assessing the quality of education
for their children and making changes to their educational programs
based on those assessments. The manner in which the BIE has chosen to
implement NCLB has left tribes with no voice in educating their own
children, evolved into a bloating of the bureaucracy in Albuquerque, and
has bypassed the cornerstone of treaty-based obligations of the US
Government to conduct business in a government-to-government basis with
the tribes.

In general, NCLB has been poorly implemented by the BIE:

> 1\. When NCLB started, many schools were placed immediately into
> Restructuring Status. The BIE guidance document for schools in
> restructuring was distributed in July of 2007, a full five years after
> the first schools were identified in that status, and in the 2008
> school year, the BIE did not follow the 2007 guidance documentation
> regarding the development of restructuring plans.
>
> 2\. Adequate Yearly Progress (AYP) determinations were made for South
> Dakota schools in April of 2008 for the 2006-2007 school year despite
> the requirements for a start-of-school deadline for this activity. The
> \"plan\" to fix this error continues to miss deadlines and not inform
> the communities of school progress.
>
> 3\. A clear guidance process for waiving AYP provisions and
> establishing tribal provisions has not been created as has been
> documented by the recent GAO study.
>
> 4\. A State Accountability Workbook has been created for the BIE
> without consultation with the tribes and without a well-documented
> peer review process that includes local input.
>
> In the case of the BIE accountability workbook, it is unclear what
> Peer Review process was used to create the workbook. In talking with
> members of the Negotiated Rulemaking Committee, it was not their
> understanding that they had input into this process.
>
> PL 107-110 NCLB
>
> Title I, Part A, Subpart 1, Section 1111
>
> ''(e) PEER REVIEW AND SECRETARIAL APPROVAL.---
>
> ''(1) SECRETARIAL DUTIES.---The Secretary shall---
>
> ''(A) establish a peer-review process to assist in the review of State
> plans;
>
> ''(B) appoint individuals to the peer-review process who are
> representative of parents, teachers, State educational agencies, and
> local educational agencies, and who are familiar with educational
> standards, assessments, accountability, the needs of low-performing
> schools, and other educational needs of students;

The last issue, creation of an accountability workbook, places the BIE
in the role of a State Education Agency; a clear violation of the
government-to-government relationship between the US Government and the
Tribes.

North Dakota and South Dakota tribes and schools successfully brought
suit against the BIA concerning their restructuring consultation and the
establishment of the SEA, yet despite the injunctions against them, the
BIA continues to refer to themselves as the \"51st\" state, going so far
as to create a State accountability workbook which is posted on the US
Department of Education web site. The BIE has made a Memorandum of
Agreement with the US Department of Education to act on behalf of the
tribes as a State Education Agency. This means the Federal Government
has agreed to work with itself to dictate services to the Tribes.

Finally, our frustration with NCLB requirements and the way the BIE has
been implementing those requirements is the time-consuming nature of the
processes. There are significant challenges with Indian Education right
now that need to be addressed. The BIE is spending millions of dollars
monitoring a fairly small part of the educational process rather than
working with tribally-controlled schools at the school level. We have
schools in our region that are in restructuring and corrective action
status who receive little to no support from BIE while other schools
receive dollars that require extensive travel of staff and use of time.

The insistence on centralization of activity is costing the US
Government hundreds of thousands of dollars in travel because whole
school staff and administrations are being flown to the Southwest or
other locations to receive training that could and should happen at the
school level. Implementations like this have been shown in the
professional development literature to be very ineffective compared to
on-site activities that can provide on-going support to the faculty and
administrators.

**Access to \"Qualified\" Teachers**

One major area of work that needs attention is the critical shortage of
qualified teachers. A study conducted by OSEC in fall of 2007 showed for
every secondary opening there were .8 applicants. Principals at
elementary schools had an average of 1.2 applicants for every
opening[^1]. The end result of this shortage is that, for the most part,
if a person is certified to teach and applies at a tribal school, they
will get a job. The consequence for children is an end result of faculty
who may not be prepared to teach in a reservation setting, or with
Native students in off-reservation educational and/or residential
settings. The schools have relied heavily on Teach for America as a
stop-gap measure and, though the dedication of these young people should
not be disregarded, greater effort must be made for development of a
long-term (locally-based) teaching force.

Over 33% of our school administrator\'s are of retirement age and
funding for training of new school principals has been awarded to State
institutions of higher education rather than tribal colleges. This has
meant that students are learning to administer State public schools, but
are not learning to administer BIE operated or funded schools on
reservations.

**Facilities and Transportation**

Funding for school maintenance has been restrained to a point where
maintenance of facilities becomes a serious challenge. Add to this
increased transportation costs, a lack of timely construction of new
facilities and poor facilities development planning: we are looking at a
system that has been consistently failing to meet the needs of our
children. A case in point is the way in which facility square footage is
planned. Schools are being built using a formula of failure. There is an
expectation in the square footage formula that student enrollments will
grow based on previous year enrollments. With the current drop out rate
at 50%, schools face a very real problem of over-crowding if they are
successful in improving attendance and retention. I was told by a
counselor at Pine Ridge school that he was concerned that the school
only had room for 350 students but due to reform processes, the school
enrollment had reached 500 students. The implication of the conversation
was that it was too inconvenient for the school to have these extra 150
students.

Funding for transportation is so constrained that money is expended
prior to the school year and administrators are faced with spending
Indian Student Equalization Program (ISEP) funding on transportation
that is designed to pay for educational services to students. The
schools must continue to transport students and end up being placed on
\"high risk\" status with the BIE as a result of findings in their
annual audits. In a 2007 survey of parents at one BIE funded school, 50%
of parents indicated they did not have money to pay for gas to attend
parent-teacher conferences. The school, in an attempt to increase parent
involvement as recommended by the BIE, provided bus services to remote
communities in the district for the conferences and then were challenged
to pay for fuel due to rising fuel costs later in the year.

**Restructuring**

Administering schools is a time-consuming process. A school
superintendent/principal on the Pine Ridge Reservation can fully expect
to begin their working day at 7:00 in the morning and finish their day
at 5:30 in the evening. Added to this 53 hour work-week are at least 2
monthly board meetings averaging 4 hours per week and a monthly two-day
Oglala Nation Education Coalition meeting. Add to that schedule National
and regional conferences, required trips to the Southwest and the
average superintendent is getting two days off per month and works a 65
to 70 hour work week. It is little wonder that we have a high turnover
rate among administrators.

In our discussions about restructuring the BIE, it has come to our
attention that we have way too many bureaucracies to deal with. The
diagram below is an example of the funding stream for a typical school
on the Pine Ridge Reservation:

![](media/image2.wmf){width="4.5in" height="3.75in"}

The school administration must be versed on all the Federal and State
Programs, be aware of Federal legislative efforts of NIEA, NCAI, ACTS,
as well as State organizations in addition to local tribal and family
political and personal issues. This also means schools in the Dakotas
must be accredited by the State to receive funding for lunch
reimbursement which leads to a dual accreditation processes because
schools want to be accredited through Regional systems that have created
accreditation processes specifically for tribal schools and the State
for meal funding.

In addition to the complexity of managing a tribal school setting,
administrators are faced with watching large amounts of money heading to
organizations who are there to \"help\" but who fall well short of
meeting the needs of students because they are often managing grant
based or contracted activities without direct input and support of
tribal schools or colleges. In South Dakota we have seen millions of
dollars heading to off-reservations organizations in forms of Federal
grants and contracts that are supposed to assist Native students and
teachers that end up providing very minimal support with very little
tribal input.

This issue of how funding is sent to schools and reservations is
critical as Congress sees expenditures and assumes that the money they
are appropriating is getting to the people and agencies they are
attempting to help. One example of a model that is being attempted in
South Dakota is the Gear Up program. This program was developed as a
partnership between the State of South Dakota and the OSEC schools. As
is the case with all partnerships, we had challenges at the beginning
but now have a solid program serving thousands of students across nine
reservations. The key element to this program has been the care taken to
assure that all the participating school boards were made aware of the
grant requirements at the start of the grant, regular communications
between the partners and the schools and a great deal of local control
of grant activities. Unfortunately, this model is often the exception to
the rule.

**Recommendations**

We would like Congress to do the following:

**No Child Left Behind Issues:**

1\. Increase funding for development and maintenance of educational
standards and associated assessment instruments for Tribally Controlled
Schools as related to alternative AYP definitions.

2\. Direct BIE and DOE to assure NCLB oversight to be managed at the
Line Office level.

3\. Direct BIE to fund OSEC Alternative Definition including development
of all assessment instruments, management of AYP determination process
maintenance of the assessment and determination process. BIE should
provide a five (5) year plan for funding from 2008 - 2013, with budgeted
amounts for subsequent 5 years (2013-2018).

4\. Review and reverse unfair failing performance determinations based
on a faulty BIE designed and implemented AYP determination process.

**Access to Qualified Teachers**

1\. Fully fund Tribally Controlled College Act to ensure sufficient
resources to Tribal Colleges in teacher development. The Act provided
for an appropriation of 62.8 million dollars but final appropriate for
this past year was 56 million dollars. This is a constant challenge for
Tribal College funding.

2\. Congress should create assurances that grants and contracts
established to assist tribes in development of tribal faculty and
administrators be given to tribal colleges, tribal organizations as a
priority in funding and if given to off-reservation organizations that
there is clear evidence that tribes to be impacted are involved in
planning, implementation and evaluation of grant and contract
activities.

**Facilities and Transportation**

1\. Fully fund facilities maintenance so schools do not have to restrain
their expenditures. Assure that Bureau facilities and maintenance
appropriations are distributed to schools within 60 days of
appropriation.

2\. Increase appropriation for transportation to adjust to rising fuel
costs and to address community transportation needs.

3\. Direct the BIE to change construction requirements to reflect a 95%
success rate with students and to adjust to the expanding populations of
the reservations. Also, direct BIE to construct facilities that provide
access to fine arts, sporting and culturally appropriate spaces.

4\. Provide oversight to assure Negotiated Rulemaking process is
followed for facilities and construction.

**Restructuring**

1\. Appropriate funding for Tribal Education Departments as identified
in the Tribally Controlled Schools Act and No Child Left Behind Act and
to require the BIE to report regularly to Congressional Oversight
Committee of their work to establish support Tribal Education
Departments.

2\. Provide oversight to this administration and the next administration
to assure continued government to government relationships with tribes.
The current BIE reorganization has created new levels of bureaucracy
that impede tribes from timely access to decisions. It has also caused a
near tripling in expenditures for administration of programs. Our
schools are recommending removal of the Division of Performance and
Accountability from the BIE organization chart and a streamlining of
activity by strengthening the Education Line Offices on the
Reservations. Ensure that all Education Line Officers have the proper
credentials and experience in education paramount for an educational
oversight position.

3\. Funding for technical assistance should be kept at the level closest
to tribal schools. Currently funding for assistance has been sent to the
schools as part of NCLB and IDEA appropriations. This should remain as
it is and tribal schools should be allowed to work with the Line
Officers to determine appropriate assistance. BIE should be encouraged
to allow schools to work collaboratively in their regions to establish
cooperative ventures to meet technical assistance needs. Congress should
provide oversight to assure wasteful programs that require extensive
travel or large contracts to Universities in areas far removed from the
reservations is stopped.

**Appendix 1**

+----------------+------------------+-----------------+---------------+
| Oceti Sakowin  |                  |                 |               |
| Education      |                  |                 |               |
| Consortium     |                  |                 |               |
|                |                  |                 |               |
| School         |                  |                 |               |
| Membership,    |                  |                 |               |
| 2008           |                  |                 |               |
+----------------+------------------+-----------------+---------------+
| School         | Reservation      | Authority       | S             |
|                |                  |                 | uperintendent |
+----------------+------------------+-----------------+---------------+
| Tiospa Zina    | Lake Traverse    | Tribal Grant    | Dr. Frank     |
| Tribal School  |                  |                 | Paleria       |
+----------------+------------------+-----------------+---------------+
| Enemy Swim Day | Lake Traverse    | Tribal Grant    | Dr. Sherry    |
| School         |                  |                 | Johnson       |
+----------------+------------------+-----------------+---------------+
| Flandreau      | Off Reservation  | BIA Operated    | Betty Belkham |
| Indian School  | Boarding School  |                 |               |
+----------------+------------------+-----------------+---------------+
| Marty Indian   | Yankton          | Tribal Grant    | Everdell      |
| School         |                  |                 | Wright        |
+----------------+------------------+-----------------+---------------+
| St Francis     | Rosebud          | Tribal Grant    | Larry Parker  |
| Indian School  |                  |                 |               |
+----------------+------------------+-----------------+---------------+
| Todd County    | Rosebud          | South Dakota    | Dr. Margo     |
| School         |                  | Public          | Heinert       |
| District       |                  |                 |               |
+----------------+------------------+-----------------+---------------+
| Crazy Horse    | Pine Ridge       | Tribal Grant    | (Currently    |
| School         |                  |                 | Advertising)  |
+----------------+------------------+-----------------+---------------+
| Little Wound   | Pine Ridge       | Tribal Grant    | Linda Hunter  |
| School         |                  |                 |               |
+----------------+------------------+-----------------+---------------+
| Wounded Knee   | Pine Ridge       | Tribal Grant    | Marnee White  |
| District       |                  |                 | Wolf          |
| School         |                  |                 |               |
+----------------+------------------+-----------------+---------------+
| Isna Wica      | Pine Ridge       | Tribal Grant    | Deb Bordeaux  |
| Owayawa        |                  |                 |               |
+----------------+------------------+-----------------+---------------+
| Porcupine      | Pine Ridge       | Tribal Grant    | Jerry Lessert |
| School         |                  |                 |               |
+----------------+------------------+-----------------+---------------+
| Takini School  | Cheyenne River   | Tribal Grant    | Ted Roland    |
+----------------+------------------+-----------------+---------------+
| Eagle Butte    | Cheyenne River   | BIA Operated    | Sherry Farlee |
| School         |                  |                 | (ELO) /       |
|                |                  |                 | Nadine        |
|                |                  |                 | Eastman       |
|                |                  |                 | Principal     |
+----------------+------------------+-----------------+---------------+
| Little Eagle   | Standing Rock    | Tribal Grant    | Dave          |
| School         |                  |                 | Archambault   |
+----------------+------------------+-----------------+---------------+

The Oceti Sakowin Education Consortium also has tribal college members.
These include:

Little Hoop College, Spirit Lake

Lower Brule Community College, Lower Brule

Sinte Gleska University, Rosebud

Oglala Lakota College, Pine Ridge

**Appendix 2**

**Alternative AYP Timeline**

**2004**

-   **March: Initial Meeting Pierre Indian Learning Center**

-   **June 28: Video Conference, Standards Planning**

-   **July: Initial Math and Reading Standards Drafted**

    -   **Math: Dr. Eastman, Dr. Johnson**

    -   **Reading; Chris McCoy, Rebecca Williams**

-   **October: School boards approved OSEC AYP definition plans and
    authorize OSEC to negotiate with OIEP regarding adoption of
    alternative definition**

**2005**

-   **January; 1st Draft Standards aligned and presented to OSEC
    membership**

-   **January, Alert Pine Ridge Line Office of Alternative AYP
    definition activity**

-   **February: Contract with Dr. Zalud and Reins from USD to provide
    external review of standards and to align to State and National
    Standards**

-   **April Uploaded first draft to OSEC website**

-   **May 9 Initial letter requesting technical support from OIEP**

-   **June 27, Letter to Sharon Wells responding to letter regarding
    requirement for school board approval with board resolutions**

-   **August 10 Letter to Ed Parisian**

-   **October Ted Hamilton and Roger Bordeaux Travel to New Mexico**

-   **November, Pat Abeyta contacts Wounded Knee District School to
    provide TA for alternative AYP without contacting other schools and
    ignoring OSEC.**

-   **December Pat Abeyta scheduled to attend TA Meeting at LNI, does
    not make it to meeting. No reasons given.**

**2006**

-   **January 23,Congressional Delegation Letter**

-   **March 16 OIEP Reply to Congress indicating funds spent on NASIS
    system rather than assessment development**

-   **March 28 Conference Call considering brining suit to OIEP over
    Safe harbor issues and discussed alternative AYP**

-   **May School Boards send letters requesting waiver to OEIP.**

-   **November 13, Correspondence with Pat Abeyta regarding alternative
    AYP thanks to interest from Tom Dowd**

**2007**

-   **February 27 met with Pat Abeyta on AYP process**

-   **May 7 Met with Tom Dowd regarding AYP agreed to submit TA request
    in two parts.**

-   **June Submitted Part 1 AYP TA Request**

-   **June 25-27 Wrote new accountability workbook with Pat Abeyta**

-   **November 29 met with DOE/DPA/BIE staff regarding alternative AYP
    and was assigned JP Boudine as consultant. Requested development of
    a plan and budget for development of assessment**

**2008**

-   **March, Submitted Assessment Development Proposal Per BIE Request**

-   **April 8, Met with Stan Holder:**

    -   **Told we needed tribal council resolutions to do the work**

    -   **Proposed giving partial funding to proposal and asked that we
        seek money from Congress for future appropriations**

    -   **Asked if we could combine work with Navajo Nation**

    -   **Responded with letter to Mr. Holder April 11th**

-   **May Informed BIE hired J.P. Boudain to provide consultation**

-   **June Re-Submitted AYP accountability workbook (4th version)**

-   **Aug First written response to workbook**

**Appendix #3**

**OSEC Teacher Recruitment Survey**

In October of 2007 we created a simple survey to get an idea about how
teacher recruiting was happening across the consortium and how many
openings we were seeing. There were 13 respondents to the 18 surveys we
sent out. We found some interesting things and opened up even more
questions.

Two of our schools, Little Wound and Takini, are currently using an
on-line service to identify potential teachers while the other schools
are advertising locally in newspapers and through regional colleges.
Table 1 indicates the number of opening by grade level across the
schools surveyed and the number of applicants. The schools that did not
use on-line recruitment had a rate of 1.2 applicants per open position.

![](media/image3.wmf){width="4.582638888888889in"
height="2.6631944444444446in"}

Table 1

Little Wound and Takini change the data to some degree as described in
Table 2.

Takini had openings primarily in Elementary and Little Wound had High
School positions. Even with on-line recruitment Little Wound was unable
to fill all their positions at the High School level. On-line
recruitment for two schools expanded the number of applicants to
positions to 3.1. Not a large number but still larger than what we were
seeing from more standard recruitment process.

![](media/image4.wmf){width="5.936111111111111in"
height="1.6145833333333333in"}

Table 2

A second issue we were looking at was who was from out-of-state and who
was from in-state. With the exception of Little Wound and Takini, the
rest of the schools had a rate of one out-of-state application per every
4 applications (see table 3).

![](media/image5.wmf){width="4.808333333333334in"
height="2.7805555555555554in"}

Table 3

Takini and Little Wound\'s data changed this figure dramatically as
Takini had 30 out of state applications they found on-line and Little
Wound had five or six per opening from on-line sources. Most of on-line
sources are providing out-of-state placements.

We still have some questions that need to be addressed:

1\. Why are some schools tracking this data and others are not? Since
teacher quality is a significant issue with our schools, it would seem
important to have the largest recruitment pool possible for each
position.

2\. We have a significant problem with secondary positions. Our colleges
are not graduating sufficient secondary people, particularly in math and
science, to fill the positions we have. Even positions that are
traditionally easy to fill (History) are challenging on the
reservations.

3\. We did not ask, but one question that keeps coming up is how many
applicants have already taught at a tribal school and are transferring
to another tribal school?

4\. Given the declining population in South Dakota and our perception
that fewer and fewer students are selecting education as a career
option, it seems that recruitment out of state and possibly the region
is appropriate. What are the options for OSEC schools for out-of-state
recruitment?

5\. Given the needs for culturally based pedagogy, what will schools
have to do to increase out-of-state teacher quality in the area of
culturally based instruction?

**Recommendations:**

> 1\. OSEC staff can conduct in-service training on on-line recruitment
> processes, emphasizing job boards.
>
> 2\. Develop a joint openings board for the OSEC web-site to advertise
> openings.
>
> 3\. Consider schools supporting joint recruitment efforts at job fairs

OSEC has received a bid for service from Teacher-Teacher.com. This bid
would allow us to get discounts for their services. This is the service
currently used by Little Wound and Takini for on-line searching.

# Appendix 4

# ![](media/image1.png){width="2.1798611111111112in" height="1.0895833333333333in"}

Ted Hamilton • Box 731 Kyle , SD 57772 • (605) 455-2678 • (605) 455-1659
fax • <Hamilton@gwtc.net>

April 10, 2008

Stan Holder, Acting Chief

Division of Performance and Accountability

1011 Indian School Road, NW (Suite 332)

P.O. Box 829

Albuquerque, New Mexico 87103

Dear Mr. Holder:

I am writing this letter under the direction of the OSEC Alternative
Adequate Yearly Progress working team. As you are aware, you, Scott
Westerhaus, Paula Pourier and I met on Tuesday, April 8^th^ at the
Prarie Winds Casino on the Pine Ridge Reservation to discuss the funding
of development of an assessment instrument as described in the proposed
alternative AYP determination accountability workbook submitted to the
BIE in December of 2007. This letter is a response to the issues you
brought to us through the meeting on April 8^th^. The composition of the
working group is described in an attached attendance sheet to this
letter.

In our discussion on the 8^th^, you began the meeting with a concern
that your interpretation of the No Child Left Behind statute indicated
that prior to the BIE providing funds to this process it would be
necessary for the tribes involved to pass resolutions directing the BIE
to authorize one tribe as the designee to receive the funding for this
project. As we did not have the statute in front of us at the meeting,
our group reviewed the statute on Wednesday and quote below:

**Title I, Subpart 1**

**''SEC. 1116. ACADEMIC ASSESSMENT AND LOCAL EDUCATIONAL AGENCY AND
SCHOOL IMPROVEMENT.**

''(g) SCHOOLS FUNDED BY THE BUREAU OF INDIAN AFFAIRS.

''(1) ADEQUATE YEARLY PROGRESS FOR BUREAU FUNDED

SCHOOLS.

''(B) WAIVER.---The tribal governing body ***[or school board of a
school funded by the Bureau of Indian Affairs may waive]{.underline}***,
in part or in whole, the definition of adequate yearly progress
established pursuant to paragraph (A) where such definition is
determined by such body or school board to be inappropriate. If such
definition is waived, the tribal governing body or school board shall,
within 60 days thereafter, submit to the Secretary of Interior a
proposal for an alternative definition of adequate yearly progress,
consistent with section 1111

It is clear that our school boards have authority to waive the AYP
definition and that development of the related assessment instruments
under critical element 3.1 as defined in the proposed AYP Alternative
definition under the guidance of Dr. Pat Abeyta from your office is a
part of that process. The working group directed me to express the
collective frustration and disappointment with the BIE in continuing to
address this issue. Our schools sent Dr. Roger Bordeaux and myself to
Albuquerque in October of 2005 to address this issue. We met with you,
Dr. Abeyta, David Talayumpetwa, Lynn Lafferty and others in your office
to discuss this issue. At that meeting it was decided that groups of
schools could work on an alternative definition and that their school
boards had the authority to do so under NCLB provisions. To now require
the schools to go through the process of attaining tribal resolutions
will unduly postpone the development of the assessment and is viewed by
the group as a delaying action to keep the OSEC schools from completing
this important work.

Based on our review of the statute, I have completed the Department of
Education documentation for the process and am attaching it to this
letter. We will be continuing to use Little Wound School as the fiscal
agent and recipient of the funding per our discussion in December of
2007.

During our discussion of this issue and other issues on the 8^th^, you
mentioned that you and Mr. Skenandore were supportive of this process
but there were "other people" in the system who were not. Our group has
directed me to ask you to provide a list of names of those who are not
supportive of the development of the alternative definition and/or the
associated assessment instruments. It is difficult to address concerns
when we do not know who is bringing those concerns to the table and are
unable to talk directly with them.

A second issue that you brought to our discussion on the 8^th^ was a
possible collaboration between the Navajo Nation and the OSEC schools in
development of a combined assessment instrument. The OSEC schools do not
find this an acceptable proposal and do not wish to pursue this type of
collaboration for this issue. In our discussions we discussed your
statements that acculturation of students has reached a point where
cultural differences between tribes have been eroded and that there is a
"Pan-Indian" culture developing among Native people. That because of
this, the development of separate assessment instruments is not
necessary and a combined instrument would allow for combined purchasing
of teaching materials and testing materials.

Our group reached consensus that the concept of Pan-Indian is a result
of assimilation. It is our belief that the Dakota, Lakota and Nakota
speaking peoples are a unique and separate group of people in this
world. We believe that the treaties with the US government recognize
this uniqueness and that in keeping with the government-to-government
relationship our work is to help educate our children and grandchildren
to maintain this cultural perspective. It would be disrespectful on our
part, and from our perspective the part of the BIE, to assume that the
education of a child who is a member of the Oceti Sakowin is the same as
a Dine child. We recognize and support the Navajo Nation's right to
determine their own educational standards and assessments of those
standards while insisting that our communities have a right to the same.
In passing the No Child Left Behind Act as it did, Congress reinforced
the rights of tribes to self-determination of how their children are to
be educated. It is our expectation that BIE and the Federal
administration will fully fund all tribal efforts in the development of
appropriate assessment instruments for those tribes that wish to do so,
ours included. From our groups perspective, we see this as a closed
option and direct the BIE to not pursue this line of thinking on our
behalf again.

Regarding the funding amount you verbally offered us on the 8^th^ of
April. It was my understanding that we would receive 1.3 million dollars
this year with subsequent funding of 1.1 million for the following two
years. If I have misunderstood your offer I apologize but this is what
Mr Westerhaus and Ms Pourier also wrote down. In discussing these
figures with the group we found the BIE proposal to be unacceptable. I
have been directed to inform the BIE that we want the full amount funded
per our proposal. As you mentioned in our discussion, it is important
for this project to be successful as a model for other tribes.
Under-funding this process will be detrimental to its success. Our group
reminded me that the BIE has been receiving 6111 funding for assessment
development for at least four years. That it is our perspective that
these funds have been misappropriated for use in funding the NASIS
program and that the more than nine (9) million dollars spent in
previous years should be made available to our group and other groups
working on this issue. That the past practice of informing the
Department of Education that these funds were not necessary for use in
assessment development was incorrect and that BIE is responsible for
correcting this error in judgment.

In the attached proposal and Federal Budget forms we are submitting we
have done a slight adjustment to the funding proposal. We are planning a
computer based assessment and want it clearly understood that the BIE is
responsible for providing the equipment to deliver the assessment. The
OSEC organization has been working with schools to improve their
technology infrastructure and will continue to do so, but our schools
need to have computers for students to use to take the assessment.

Our purpose for an on-line assessment is two-fold. First, the results of
an on-line assessment are compiled faster. Our vendor pool indicated we
could get results in less than 48 hours. This is a significant
improvement over the past few years where Dakota Step results were not
made available to the schools until five months after the assessment and
AYP determinations were not available to schools until well into the
school year. It is our perspective that BIE is out-of-compliance with
NCLB due to reporting guidelines and we are hoping that a computer
delivered system will help bring BIE back into compliance. Our second
desire for a computer based assessment is very simply on-going cost. All
three of our vendor bids indicated we would cut on-going costs by as
much as 50% by using a computer delivered assessment.

One of the reasons our initial development costs are as high as they are
is related to the validations necessary for a computer-assisted
assessment. We will need to provide the Peer Review team the needed
documentation to assure the validity, reliability and comparability of
this assessment to the more cumbersome bubble sheet test process. Once
we get this process started, we will create a savings for BIE in
maintaining this assessment over time and should re-coop development
costs in delivery savings in a three to five year period. I am placing
the purchase of computer's into the second year of the project. You
indicated you would fund Year 1 out of this year's money and Year 2 out
of money allocated starting in July of 2008. We will need the computers
in February of 2009 for professional development with faculty on the
assessment pilots and then on-going in the process after that time. We
should expect to replace the systems every 5 years.

During our group meeting, we discussed the Peer Review Process for
approving our developed assessment. We are requesting that BIE work with
us and the Department of Education to define our peer review team. In or
initial discussions with Mr. Stevenson of DOE, we were informed that DOE
selected the Peer Review team. When we discussed our desire that the
Peers be Native people we were informed that DOE would select the team
and that their backgrounds would not likely be Native backgrounds.

In reviewing the NCLB Act, we read the following related to the Peer
Review process:

PL 107-110 NCLB

Title I, Part A, Subpart 1, Section 1111

''(e) PEER REVIEW AND SECRETARIAL APPROVAL.---

''(1) SECRETARIAL DUTIES.---The Secretary shall---

''(A) establish a peer-review process to assist in the

review of State plans;

''(B) appoint individuals to the peer-review process who

are representative of parents, teachers, State educational

agencies, and local educational agencies, and who are

familiar with educational standards, assessments, accountability,

the needs of low-performing schools, and other educational

needs of students;

In reading this section of NCLB it is our interpretation that the
process would mean peer reviewers would reflect a Native American
perspective. Our group will be building a list of people who we would
like to have as peer reviewers. We would ask BIE to inform DOE and Mr.
Stevenson that prior to the initiation of the Peer Review process we
(BIE, OSEC and DOE) get together and go over a list of who will be
reviewing the OSEC assessments. We will be particularly attentive to the
credentials and experiences of those serving on the peer review team as
they relate to familiarity with Dakota/Lakota/Nakota students.

I want to reinforce the importance of this work. As I described in our
conversation on the 8^th^ of April, the State of South Dakota has been
funding the testing for BIE operated and funded schools for the past few
years but is finding it more and more difficult to maintain that
support. The development of this assessment and subsequent on-going
maintenance will relieve the State of that responsibility and will
create a process that is equitable to the State assessment for our
students. It is our believe that it is the BIE's responsibility to pay
for the assessment of children in the schools funded through the BIE.

Finally, in our discussion the 8^th^ of April, I requested a written
response from the Secretary of Interior related to our accountability
workbook. I have reviewed NCLB and there are not specific timelines
defined in the tribal section related to this provision but in the
section for state accountability workbooks it reads:

PL 107-110 NCLB

Title I, Part A, Subpart 1, Section 1111

''(C) approve a State plan within 120 days of its submission

unless the Secretary determines that the plan does

not meet the requirements of this section;

''(D) if the Secretary determines that the State plan

does not meet the requirements of subsection (a), (b), or

(c), immediately notify the State of such determination

and the reasons for such determination;

Since the related tribal process as defined by the law does not specify
days, we are working under the interpretation that the 120 day window
applies to the Secretary of Interior and his/her requirement to
communicate with our organizations accountability workbook. As OSEC has
been directed by BIE to submit a State Accountability Workbook and we
have done so per BIE request, we will expect to hear from you in written
form a response to each of the 10 sections of the workbook we have
submitted.

The NCLB section that refers to the tribal process is as follows:

**Title I, Subpart 1 ''SEC. 1116. ACADEMIC ASSESSMENT AND LOCAL
EDUCATIONAL**

**AGENCY AND SCHOOL IMPROVEMENT.**

''(g) SCHOOLS FUNDED BY THE BUREAU OF INDIAN AFFAIRS.

''(1) ADEQUATE YEARLY PROGRESS FOR BUREAU FUNDED SCHOOLS.

''(A) DEVELOPMENT OF DEFINITION.

. The Secretary of the Interior, in consultation with the Secretary
\[Education\] if the Secretary

of Interior requests the consultation, shall approve such alternative
definition unless the Secretary determines that the definition does not
meet the requirements of section 1111(b), taking into account the unique
circumstances and needs of such school or schools and the students
served.

Our group would like a written response to the submitted accountability
workbook by Friday, April 11^th^, 2008. If we must, we can wait into the
following week, but will need to have a response as we are well past the
120-day response timeframe. Our group also is requesting that all
proposals and counter-proposals related to funding the alternative AYP
and the adoption of the alternative definition be done in writing so we
can establish a proper paper trail. I appreciate your visit to Pine
Ridge this week, but emphasize the importance of being able to document
fully development and funding of this important work. It is an operating
principle of OSEC to be transparent and open in all negotiations and I
expect that we can continue in this fashion working with BIE on this
project and other projects into the future.

It was good to see you this week.

Take Care,

Ted Hamilton

Executive Director

Cc: Gay Kingman, Aberdeen Area Tribal Chairman's Association

Roger Bordeaux, ACTS President

Lesley Kandaras: Representative Stephanie Herseth

Elli Wicks: Senator Tim Johnson

John Thune

Mary Helen Kramer, Navajo Education Department of Education

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