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26–823 PDF 2017

S. HRG. 115–76 

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

HEARING 

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

JULY 12, 2017 

Printed for the use of the Committee on Indian Affairs 

( 

(II) 

COMMITTEE ON INDIAN AFFAIRS 

JOHN HOEVEN, North Dakota, Chairman 

TOM UDALL, New Mexico, Vice Chairman 

JOHN BARRASSO, Wyoming 

JOHN MCCAIN, Arizona 

LISA MURKOWSKI, Alaska 

JAMES LANKFORD, Oklahoma 

STEVE DAINES, Montana 

MIKE CRAPO, Idaho 

JERRY MORAN, Kansas 

MARIA CANTWELL, Washington 

JON TESTER, Montana, 

AL FRANKEN, Minnesota 

BRIAN SCHATZ, Hawaii 

HEIDI HEITKAMP, North Dakota 

CATHERINE CORTEZ MASTO, Nevada 

T. MICHAEL ANDREWS, Majority Staff Director and Chief Counsel 

JENNIFER ROMERO, Minority Staff Director and Chief Counsel 

(III) 

C O N T E N T S 

Page 

Hearing held on July 12, 2017 ............................................................................... 1 

Statement of Senator Barrasso ............................................................................... 4 

Statement of Senator Cortez Masto ....................................................................... 34 

Statement of Senator Daines .................................................................................. 36 

Statement of Senator Franken ............................................................................... 37 

Statement of Senator Heitkamp ............................................................................. 2 

Prepared statement .......................................................................................... 4 

Statement of Senator Hoeven ................................................................................. 1 

Statement of Senator Lankford .............................................................................. 5 

Statement of Senator Merkley ................................................................................ 5 

WITNESSES

Brainard, Hon. Warren, Chief, Confederated Tribes of Coos, Lower Umpqua 

and Suislaw Indians of Coos Bay ....................................................................... 11 

Dearman, Tony, Director, Bureau of Indian Education, U.S. Department of 

the Interior ........................................................................................................... 7 

Prepared statement .......................................................................................... 8 

Mann, Carla, President, National Johnson-O’Malley Association (NJOMA) ...... 15 

Prepared statement .......................................................................................... 16 

Wharton, Donald R., Senior Attorney, Native American Rights Fund ............... 12 

Prepared statement .......................................................................................... 13 

APPENDIX

Begaye, Hon. Russell, President, Navajo Nation, prepared statement ............... 43 

Gentry, Hon. Donald C., Chairman, Klamath Tribes, prepared statement ........ 44 

Parrish, James, Executive Director of Education and Shane Haddock, Director 

of JOM. Choctaw Nation of Oklahoma, joint prepared statement ................... 46 

Letters submitted for the record by: ......................................................................

Kirsten Baesler ................................................................................................. 49 

Yatibaey Evans ................................................................................................. 48 

Hon. James R. Floyd ........................................................................................ 51 

Hon. Dave Flute ................................................................................................ 49 

Joy Hofmeister .................................................................................................. 47 

Hon. Faron Jackson, Sr. ................................................................................... 47 

Mary Jane Miles ............................................................................................... 52 

Jacqueline Pata ................................................................................................ 50 

Gloria Sly .......................................................................................................... 50 

Response to written questions submitted by Hon. Heidi Heitkamp to: 

Tony Dearman .................................................................................................. 52 

Carla Mann ....................................................................................................... 53 

Donald R. Wharton ........................................................................................... 54 

(1) 

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

WEDNESDAY, JULY 12, 2017 

U.S. SENATE, COMMITTEE ON INDIAN AFFAIRS, Washington, DC. 

The Committee met, pursuant to notice, at 2:30 p.m. in room 

628, Dirksen Senate Office Building, Hon. John Hoeven, 

Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. JOHN HOEVEN, 

U.S. SENATOR FROM NORTH DAKOTA 

The CHAIRMAN. I call the meeting to order. 

Good afternoon to our witnesses. Thank you for being here and 

of course also all of our Committee members. Senator Heitkamp is 

sitting in for Senator Udall as our Vice Chairman. I think he is 

having a little dental work done, so I am guessing he would rather 

be here but we understand that is important. 

Welcome, Senator Heitkamp. 

Today, the Committee will examine three bills: S. 943, the Johnson-O’Malley Supplemental Indian Education Program Modernization Act; S. 1223, the Klamath Tribe Judgment Fund Repeal Act; 

and S. 1285, the Oregon Tribal Economic Development Act. 

On April 26, 2017, Senator Heitkamp, along with Senators 

Daines and Lankford, introduced S. 943, the Johnson-O’Malley 

Supplemental Indian Education Program Modernization Act. 

Pursuant to the Johnson-O’Malley Act, the Bureau of Indian 

Education assists the Indian children enrolled in public schools 

where more than 90 percent of them attend. In my home State of 

North Dakota, during the 2016–17 school year, 10,262 Native children, 83.6 percent of the Native children in grades K–12, attended 

North Dakota public schools. 

The types of services include dropout prevention, culturally relevant instruction assistance, and academic assistance such as tutorial services and school supplies. In some cases, the JohnsonO’Malley program may be the only means of academic assistance 

for even basic items such as school supplies. 

However, to date, the Bureau of Indian Education has not conducted an accurate or verifiable student count for program funding 

and distribution since 1995, more than 20 years ago. It is estimated that up to two-thirds of the Indian children may not be receiving assistance due to the lack of a current official student 

count. Since this program may be a lifeline for some Indian chilVerDate Mar 15 2010 11:14 Sep 25, 2017 Jkt 026823 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\DOCS\26823.TXT JACK
2 

dren, it is incumbent upon Congress and the Administration to do 

everything we can to support and improve it. 

The bill, S. 943, amends the Johnson-O’Malley Act to direct the 

Secretary of the Interior to provide for the full participation of all 

qualified Indian students eligible for this program. This bill would 

require the Secretary of the Interior to provide a more accurate 

student count of Indian students. 

The bill would further require the Government Accountability 

Office to provide a review and report on the implementation of this 

Act. It would also mandate the Department of the Interior to engage in negotiated rulemaking regarding the funding formula and 

eligibility definitions. 

I will note that North Dakota’s Superintendent of Public Instruction, Ms. Kirsten Baesler, has sent a letter of support, and I will 

make that letter part of the record. 

On May 25, 2017, Senator Merkley introduced S. 1285, the Oregon Tribal Economic Development Act. It is co-sponsored by Senator Wyden. This legislation would allow five Indian tribes in Oregon to purchase, sell, lease, or otherwise convey fee land, without 

further congressional approval or oversight. In addition, S. 1285 

provides that none of its provisions apply to land held in trust by 

the United States for the benefit of these tribes. 

The third bill the Committee will examine is S. 1223, the Klamath Tribe Judgment Fund Repeal Act. This legislation was introduced on May 24, 2017 by Senator Merkley and is co-sponsored by 

Senator Wyden. S. 1223 repeals the Klamath Tribe Judgment Fund 

Act, which set forth a claim settlement distribution process for the 

Klamath Tribe. 

The bill is intended to allow distribution of claim settlements 

against the United States for the Klamath Tribe to proceed under 

the less cumbersome process in the Indian Tribal Judgment Funds 

Use or Distribution Act. 

I would now like to turn to Acting Vice Chairman, Senator 

Heitkamp, for her statement. 

STATEMENT OF HON. HEIDI HEITKAMP, 

U.S. SENATOR FROM NORTH DAKOTA 

Senator HEITKAMP. Thank you, Chairman Hoeven, for calling 

this legislative hearing today to consider S. 943, S. 1223 and S. 

1285. As said earlier, Senator Udall was unable to attend this 

afternoon and graciously offered me this opportunity to preside in 

his absence. 

I want to first thank all the witnesses for traveling so far today 

to present your important testimony. We know that comes at some 

cost to your organizations and tribes. We always appreciate it when 

we can hear something here in the United States Congress other 

than beltway speak. 

First, these are remarks written by my friend, Tom Udall. ‘‘S. 

943 was introduced by my colleague, Senator Heitkamp, alongside 

Senators Lankford and Daines, that would help ensure that the 

Johnson-O’Malley Program, which is so critical, would serve all Native children. The Johnson-O’Malley Program was designed by parent committees and grantees to suit local individual needs of Native students.’’ 

3 

‘‘It plays a critical role in supporting educational needs of Indian 

students by making sure Native students have school supplies, culturally-based extracurricular opportunities, academic tutoring and 

other critical tools to ensure a comprehensive learning environment. I look forward to this Committee working together to support 

programs like Johnson-O’Malley that provide all Native students 

with resources and opportunities so they have the same chance at 

quality education as other students.’’ 

‘‘We owe Indian Country nothing less and we owe our Native 

youth nothing less. To that end, we need to work openly and directly with Native communities to reconcile available data and develop new eligibility student count structures. The two remaining 

bills that are the subject of this hearing, S. 1223 and S. 1285, are 

non-controversial. They were introduced by our friend and colleague, Senator Merkley. These bills tie together to important topics, tribal sovereignty and economic development. S. 1223 would repeal the Klamath Tribal Judgment Fund Act. It is a remnant of the 

termination era that today limits the tribe’s ability to direct how 

its own funds are actually spent.’’ 

‘‘S. 1228 would allow five tribes in Oregon to have more control 

over land they own. This legislation will potentially free up much 

needed private capital for investment back into those tribal communities. Together these bills give the tribes more autonomy over 

their own internal tribal affairs.’’ 

‘‘I look forward,’’ meaning Tom, but I do also, ‘‘to working with 

Senator Merkley to mark up these bills and move them forward for 

our consideration. Again, thank you to all the witnesses today. I 

look forward to hearing the testimony.’’ 

Mr. Chairman, for the record, I would like to introduce my opening statement, especially as it relates to Johnson-O’Malley. 

The CHAIRMAN. Absolutely. 

Senator HEITKAMP. Thank you. 

I just want to thank my co-sponsors, Senators Lankford and 

Daines. Senator Lankford and I work together a lot on government 

accountability. This is a program that drives us crazy. We cannot 

get a count, so we need to fix this problem. 

I also want to ask that the record include the statement by the 

National Congress of American Indians in support of our bill; the 

National Indian Education Association’s letter in support of our 

bill; the Tribal Education Department’s National Assembly’s support of our bill; the North Dakota United Tribes of North Dakota’s 

letter in support of our bill; the support of the North Dakota Department of Public Instruction, as Senator Hoeven said; and the 

Muscogee (Creek) Nation’s letter in support of the JohnsonO’Malley bill being introduced and heard today. 

Senator FRANKEN. And the Senate Red Head Caucus. 

Senator HEITKAMP. Thank you. That is our deal. 

With that, Mr. Chairman, I thank you for calling this hearing 

and I again thank the witnesses. 

[The prepared statement of Senator Heitkamp follows:] 

4 

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

DAKOTA

Thank you Chairman Hoeven for holding this hearing on my bill and others 

today. I also want to thank Senators Daines and Lankford for joining me in working 

to update student counts to better express the amount of resources needed for Native students that are served by the Johnson O’Malley or JOM program. 

As this Committee has so often heard, data is lacking across Indian Country. Because state agencies and policies continue to leave American Indians and Alaska 

Natives out of data collection efforts, data reporting, and analysis, Indian Country 

has become what the National Congress of American Indians calls the ‘‘Asterisk Nation’’. 

The Bureau of Indian Education has not been able to collect accurate data for Native students served by the JOM program for more than 20 years. It’s time to make 

much needed updates so this program can successfully serve our Native youth. The 

bill I introduced would utilize Census data and other existing information to assist 

the Bureau of Indian Education in overcoming this obstacle that has plagued the 

JOM program since 1995. Even though the U.S. Census Bureau stated there were 

nearly 800,000 qualified American Indian and Alaska Native students in the JOMeligible age group in 2010, we continue to use the 1995 student count of just over 

271,000 Native students. This disparity illustrates a substantial portion of unserved 

students. 

Since the 1934 enactment of the Johnson-O’Malley (JOM) act, funds under the 

program have provided critical support to Native students and their cultures in public schools—where more than 90 percent of Native students attend. Unfortunately, 

funding has been diminishing over time due to the lack of official and verified data, 

freezing the estimated number of eligible students to 1995 levels. 

As one of the fastest growing demographics, we must ensure that Native children 

receive the resources needed to achieve and sustain their cultures. These children 

deserve to be represented by accurate, verified data, not simply an asterisk. 

Now is the time to examine different methods, so that we can accurately portray 

need and then concentrate on getting essential resources to our country’s most vulnerable students. 

Thank you again, and I look forward to finding solutions to this issue as well as 

any insights for strengthening the legislation so that it can best address the outdated student count and ensure that this program is able to achieve what it was 

intended to do. 

The CHAIRMAN. I want to acknowledge that Senator Merkley has 

joined us. We will offer him an opportunity to comment on his bill, 

but I would ask if other Senators would like to make opening statements? We will start with Senator Barrasso. 

STATEMENT OF HON. JOHN BARRASSO, 

U.S. SENATOR FROM WYOMING 

Senator BARRASSO. Thank you very much, Mr. Chairman. 

I welcome the opportunity today to welcome back to the Senate 

one of today’s witnesses from my home State of Wyoming, Ms. 

Carla Mann, who is here today to represent the National JohnsonO’Malley Association. She is a resident of Ft. Fort Washakie, Wyoming and the Wind River Reservation. 

She has visited my office a number of times over the last several 

years and has testified before this very Committee. In fact, she testified before the Committee last year on a previous version of Senators Heitkamp and Lankford’s Johnson-O’Malley bill. 

Ms. Mann, I appreciate your willingness to come to Washington 

to be with us today, and to lend your voice and experience to these 

important matters. 

Education, especially in Indian Country, deserves the attention 

of this Committee and the Bureau of Indian Education. 

5 

Mr. Chairman, Ms. Mann is a tireless advocate on these issues 

and I am so pleased to help you welcome her to the Committee 

again, today. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Barrasso. 

Are there other opening statements? Senator Lankford. 

STATEMENT OF HON. JAMES LANKFORD, 

U.S. SENATOR FROM OKLAHOMA 

Senator LANKFORD. I would like to jump in on the JohnsonO’Malley conversation as well. I appreciate Senators Heitkamp, 

Daines and all of our staff and how much work has gone into this 

and the ongoing conversation about how to be able to make sure 

this is right. 

The Johnson-O’Malley Program is extremely important for the 

people of my State and people around the Country. In fact, two of 

my staff members were recipients of the Johnson-O’Malley Program when they were in school. 

Let me tell you the value of this in Oklahoma and what it really 

means. As the Chairman mentioned, due to the lack of count and 

it being updated over the last 21 years, the Oklahoma Department 

of Education estimates we have 130,000 Indian students in my 

State; 11,000 of them are currently eligible for Johnson-O’Malley 

based on the fact the count has not been done in 21 years. That 

is a pretty large disparity. 

While we work through this process of trying to fix something 

that is unacceptable, I look forward to actually passing it through 

this Committee, getting it on the Floor, getting it passed, and getting this done. 

This is one of those things that should have been resolved a long 

time ago. I am glad we are doing more than talking about it and 

wishing it was different. I am glad we are working through the 

process of actually making sure it is different. 

I would like to ask unanimous consent to enter letters from the 

Choctaw Nation of Oklahoma in support of the Johnson-O’Malley 

bill and from our State School Superintendent, Joy Hofmeister, in 

support of what has been done with this. 

I would ask unanimous consent that they be included in the 

record. 

The CHAIRMAN. Are there other Senators wishing to make opening comments? Senator Merkley. 

STATEMENT OF HON. JEFF MERKLEY, 

U.S. SENATOR FROM OREGON 

Senator MERKLEY. Thank you very much, Chairman Hoeven, for 

including these two bills that were introduced in partnership with 

Senator Wyden. 

I would like to acknowledge Chief Warren Brainard of the Confederated Tribes of Coos, Lower Umpqua and Suislaw Indians, who 

made a trip from Coos Bay to testify in support of S. 1285, the Oregon Tribal Economic Development Act. 

I would also like to acknowledge Don Wharton who is representing the Klamath Tribe. He will provide background on the 

need for the Klamath Tribe Judgment Fund Repeal Act. 

6 

The Oregon Tribal Economic Development Act is about tribal 

sovereignty and economic development. Several months ago, the 

tribe reached out to my office about a problem they had in obtaining a commercial mortgage for a self storage property they purchased. 

The tribe had to pay out-of-pocket to purchase the facility, which 

is not sustainable for the tribe or for most tribes. At issue was an 

interpretation of the Indian Non-Intercourse Act that would require 

tribes to get Federal approval to purchase, sell or lease fee lands 

owned by federally-recognized tribes. 

The Department of the Interior does not make this type of determination for non-trust lands. It is impractical to expect a tribe to 

get approval from Congress each time they want to obtain a mortgage for non-trust property. 

The bill does not impact trust lands. It simply grants the authority to tribes in Oregon to buy, sell or lease their non-trust-owned 

land without further approval from the Federal Government. 

I look forward to working with the members of the Committee 

to move this bill forward. 

Let me turn to the Klamath Tribe Judgment Fund Repeal Act. 

The Klamath Tribe was a victim of the termination era that cruelly 

severed their trust relationship with the Federal Government. 

Even after formal termination, the Klamath people held on to a 

stake in future claim awards against the government including inadequate compensation for ceding ancestral lands. This led to enactment of the Klamath Tribe Judgment Fund Act in 1965 which 

specified that any award be distributed based on the final membership roll when the tribe was terminated in 1954. 

This Act is a relic of the termination era and assumed that the 

tribe would cease to exist in the Federal Government’s eyes. That 

is clearly not the case as the tribe was restored in 1986. Without 

repealing this Act, the tribe is rightly concerned that any money 

left over from past awards or any award they may receive in the 

future would have to be distributed based on the 1954 roll, including heirs who are not members of the tribe or even Native American. 

The cost to identify heirs and determine eligibility, which could 

be substantial, would be borne by the tribe. The tribe deserves 

more from us. This legacy artifact is unworkable. That is why this 

bill is an important bill. 

I hope the Committee will work with the tribe and with Senator 

Wyden and myself to give back the tribe’s ability to determine for 

themselves how the funds should be used. 

Thank you for the chance to testify and again, thank you for 

holding this hearing on these two bills. 

The CHAIRMAN. Do any other Senators wish to make opening 

statements? If not, we will proceed with our witnesses. 

They are: Mr. Tony Dearman, Director, Bureau of Indian Education, U.S. Department of the Interior, Washington, D.C.; The 

Honorable Warren Brainard, Chief, Confederated Tribes of Coos, 

Lower Umpqua and Suislaw Indians of Coos Bay; Mr. Don Wharton, Senior Attorney, Native American Rights Fund, Boulder, Colorado; and Ms. Carla Mann, President, National Johnson-O’Malley 

Association of Tulsa, Oklahoma. 

7 

Welcome to all of you. I would remind you that your written testimony in its entirety will be made a part of the record. I would 

ask that you keep your opening statement to five minutes or less. 

We will start with Mr. Dearman. 

STATEMENT OF TONY DEARMAN, DIRECTOR, BUREAU OF 

INDIAN EDUCATION, U.S. DEPARTMENT OF THE INTERIOR 

Mr. DEARMAN. Good afternoon, Chairman Hoeven, Acting Vice 

Chairman Heitkamp, and members of the Committee. It is good to 

be back with you. Thank you for the invitation to appear today to 

provide a statement and recommendations on behalf of the Department regarding S. 943, S. 1223 and S. 1285. 

Regarding S. 943, the Johnson-O’Malley Supplemental Indian 

Education Program Modernization Act, the Department supports 

the bill and recommends some technical changes. Most recently, 

BIE performed student counts, as required by Congress in 2012 

and 2014, which surveyed JOM eligible students served by current 

and prospective contractors. 

Currently allowable under law, not all JOM contractors submitted data to the BIE which affected our ability to officially verify 

and formally update the data from the 1995 official count. That 

said, a total of 448 eligible entities submitted student count data 

in 2012 which identified more than 321,000 eligible students as 

compared to the 1995 official county which identified roughly 

272,000 students. 

The 2014 count resulted in more than 341,000 students for the 

399 eligible entities that submitted student data. An accurate 

count of students served by the JOM Program is essential to illustrate local need. It is critical that the department utilizes funding 

in a way that diminishes waste and supports programs that can accurately portray need. 

The legislation works to accomplish this while ensuring accountability for BIE as well as contractors and reporting. To that end, 

the department supports S. 943 and offers the following recommendations. 

Section 7(a)(4) defines New Applicants as an entity that applies 

to participate in a contract ‘‘not later than 240 days’’ in coordination with S. 943’s reporting requirements for the Bureau. The department believes this provision could potentially limit prospective 

applicants due to the period mentioned. We would be happy to 

work with you regarding language that clarifies that new applicants will not be restricted from applying as contractors. 

Section 7(f) assumes sufficient funding will be available to meet 

the hold harmless requirement. The department believes the provision does not carve out an exception for potential funding reductions and recommends adding language that the hold harmless provision is contingent upon available funding. 

I also want to note that the legislation directs the department to 

cross-check student count data with that from the U.S. Census Bureau, National Center for Education Statistics and the U.S. Department of Education’s Office of Indian Education. 

While we understand the need to analyze all sets of data to determine accuracy and potential need, there may be issues with 

comparing such data due to varying eligibility requirements and 

8 

legal definitions of eligible students. For example, the Department 

of Education’s Title VI formula grants are based on student eligibility that is broader than the current JOM eligibility. 

Regarding S. 1223, a bill to repeal the Klamath Tribe Judgment 

Fund Act, the department takes no position on this legislation at 

this time. The Klamath Tribe Judgment Fund Act, enacted October 

1, 1965, authorizes the Secretary of Interior to establish and apply 

appropriated dollars to a judgment fund for the Klamath and 

Modoc Tribes. 

At this time, the department needs to better understand how the 

repeal of this Act will impact our trust responsibility to the tribes 

but looks forward to working with the sponsors on this proposal. 

Regarding S. 1285, the Oregon Tribal Economic Development Act, 

which would allow the leasing or transferring of certain lands not 

held in trust by the United States, the Department supports this 

bill. 

S. 1285 would expressly allow each of the tribes to lease, sell, 

convey, warrant or transfer all or any portion of its interest in any 

real property not held in trust status for the benefit of the tribe. 

Under S. 1285, further approval, ratification or authorization by 

the United States is not required in order to validate the land 

transaction. 

Members of the Committee, thank you for the opportunity to 

present testimony today. The department looks forward to working 

with the sponsors and the Committee on these legislative proposals. 

I would be honored to answer any of your questions. 

[The prepared statement of Mr. Dearman follows:] 

PREPARED STATEMENT OF TONY DEARMAN, DIRECTOR, BUREAU OF INDIAN

EDUCATION, U.S. DEPARTMENT OF THE INTERIOR

Good afternoon Chairman Hoeven, Vice Chairman Udall, and Members of the 

Committee. It is good to see you again. As Director of the Bureau of Indian Education (BIE), I am here today to provide the Department of the Interior’s (Department) views regarding S. 943, the Johnson-O’Malley (JOM) Supplemental Indian 

Education Program Modernization Act. 

The Department supports the goals of S. 943 and recommends some technical 

changes. 

Background 

The supplemental educational JOM Program is authorized by the JohnsonO’Malley Act of 1934 and the implementing regulations are provided in Part 273 

of Title 25 of the Code of Federal Regulations. As amended, this Act authorizes contracts for the education of eligible Indian students not enrolled in Bureau- or sectarian-operated schools. A local JOM program operates under a BIE approved individual educational plan. JOM education plans include objectives designed to address 

the educational needs of eligible American Indian and Alaska Native students, offering students various opportunities, which may include cultural enrichment, tribal 

language support, academic assistance, and dropout prevention programs. 

We understand that Indian students have unique educational and cultural needs, 

which include learning their languages, cultures, and histories. The supplemental 

JOM program has historically worked to address this need by assisting Indian students who often enter public school with an academic skills deficit. In short, JOM 

functions to help Indian students thrive in an environment suited to their strengths. 

Tribal organizations, Indian corporations, school districts, or states may be eligible to receive such funds once they establish an Indian Education Committee. The 

role of such committees is to approve supplementary support programs. American 

Indian and Alaska Native students are eligible if they are members of a federallyrecognized Indian tribe or one-fourth or more degree of Indian blood and recognized 

9 

by the Secretary as being eligible for services from the Bureau. In addition, students 

must be age three through grade 12. 

Student Counts 

Most recently, BIE performed a student count as required by Congress in Fiscal 

Years (FYs) 2012 and 2014. After formal consultation with representatives from 

tribes, public schools, tribal organizations, and parents, a total of 448 entities submitted student count data. The FY 2012 JOM count identified 321,273 eligible Indian students as compared to the last official count from 1995, which identified 

271,884 eligible Indian students. The FY 2014 count resulted in a final student 

count of 341,495 for the 399 JOM contractors that submitted data. Allowable under 

law, not all current JOM contractors submitted student count data to the BIE, 

which affected our ability to officially verify and update the student count. As such, 

the current official count of JOM-eligible students continues to be based on the 

number from 1995. 

S. 943 

An accurate illustration of need for students served by the JOM program is essential. To that end, the Department supports S. 943. For too long, the count has been 

considered inaccurate and therefore difficult to confirm true local needs of students 

served by the supplemental education program. As the BIE focuses on its core institutional mission—providing for the direct operation of schools and supporting classroom instruction for Indian students—we must ensure taxpayer dollars are being 

used efficiently and effectively. As such, it is critical that the Department utilizes 

funding in a way that minimizes waste and supports programs that can accurately 

portray need. This legislation works to accomplish this while ensuring accountability for contractors in reporting their number of students served under the program. 

The Department has the following recommendations regarding S. 943, the JOM 

Supplemental Indian Education Program Modernization Act: 

• New Applicants. Section 7(a)(4) defines ‘‘New Applicants’’ as an entity that applies to participate in a contract ‘‘not later than 240 days. . .’’ in coordination 

with S. 943’s reporting requirements for the Bureau. The Department believes 

this provision could potentially limit prospective applicants due to the period 

mentioned and suggests language that clarifies that new applicants will not be 

limited to a particular timeframe. 

• Hold Harmless. Section 7(f) assumes sufficient funding will be available to meet 

the hold harmless requirement. The Department is concerned that the provision 

does not carve out an exception for potential appropriation reductions and recommends adding language that the hold harmless provision is contingent upon 

available funding. 

• Student Count Data. Section 7(c)(1)(B)(i) directs the Department, through the 

BIE Director, to cross-check student count data with data from the U.S. Bureau 

of Census, the National Center for Education Statistics (NCES) in the U.S. Department of Education’s Institute for Education Sciences, and the U.S. Department of Education’s Office of Indian Education (OIE). The Department assumes 

that the bill is referring to the student count used for OIE formula grant payments under Title VI of the ESEA (formerly Title VII). 

If that is the case, it should be noted that Title VI formula grants are based 

on student eligibility that is broader than the JOM eligibility, as OIE’s count 

includes members of state-recognized tribes, and children and grandchildren of 

members of federally recognized tribes without regard to blood quantum. The 

Department is also concerned that U.S. Census Bureau data will include selfidentified individuals who may not be eligible for services because BIE jurisdiction extends only to members of federally-recognized tribes or students who are 

identified as eligible under the Act. We look forward to working with the committee to ensure that the bill adequately protects the privacy rights of Indian 

students and their families. 

Conclusion 

Thank you for the opportunity to present testimony today on such important legislation. The Department and BIE look forward to continuing our work with this 

Committee, Indian tribes, and our important stakeholders. We also look forward to 

working with the sponsors of the legislation to address the aforementioned recommendations. Thank you for your time, and I would be honored to answer any 

questions you may have. 

10 

Thank you for the opportunity to present testimony on behalf of the Department 

regarding S. 1223, the Klamath Tribe Judgement Fund Repeal Act, which would repeal Public Law 89–224, commonly known as the Klamath Tribe Judgement Fund 

Act. The Department is still reviewing the legislation and cannot take a position at 

this time. 

The Klamath Tribe Judgement Fund Act, enacted on October 1, 1965, authorizes 

the Secretary of the Interior to establish and apply appropriated dollars to a judgement fund for the Klamath and Modoc Tribes and Yahooskin Band of Snake Indians, better known as the Klamath Tribe. 

Background 

The Klamath Indian Reservation, located in southern Oregon, was established by 

the Treaty of October 14, 1864. The reservation was managed under the supervision 

of the Federal Government and headquartered at the Klamath Agency. In 1954, the 

federal trust responsibility for the reservation was terminated by the passage of the 

Western Oregon Indian Termination Act. Upon formal termination, the Klamaths 

were provided an opportunity to remain tribal members or withdraw from their tribal membership. Those opting to withdraw their memberships forfeited their share 

of some tribal assets, and those who remained retained ownership of tribal assets. 

Both groups were able to keep any interests in future awards claims. 

Docket 100 

The Aboriginal Title Claim case was settled when the Indian Claims Commission 

issued an order on January 31, 1964, which granted a judgement fund award of 

$2,500,000. This settled amount was to serve as fair payment for lands in Oregon 

ceded under the Treaty of 1864. Legislation authorizing distribution was not enacted by Congress until October 1, 1965. Payment began in 1966 and each of the 

2,133 members on the membership roll received $1,124.00 resulting in a total of 

$2,351,250.14 paid out, and the remaining balance supported attorney fees and expenses. 

Docket l00A 

In September of 1969, the Klamath Tribe successfully claimed additional compensation for lands ceded by Treaty of October 14, 1864. The claim, better known 

known as ‘the boundary claim’ involved 621,824 acres that were excluded from inclusion in the reservation boundaries. Docket 100A was completed on September 2, 

1969, with the sum of $4,162,992.82 being granted in favor of the Klamaths. Payment began in 1970 with each member receiving $1,841.45. Historically, the Bureau 

of Indian Affairs consulted with the Klamath Tribe to prepare proposed distribution 

of judgment funds remaining in the various Klamath accounts, pursuant to Klamath 

Tribal Resolution 96–15, dated March 6, 1996. 

It is important to make clear that the Klamath Tribe Judgement Fund Act is the 

appropriate vehicle for distributing this funding. We have concluded that the Judgement Fund Distribution Act, which was signed into law in 1973, does not apply to 

the Klamath Tribe Judgement Fund, as its ability to apply dollars that were appropriated and authorized for use and distribution precedes 1973. 

In 1983 and 1996, funds were disbursed for each tribal member on the 1954 

Klamath roll. The Klamath Tribe currently has 188 Individual Indian Money (IIM) 

accounts for tribal members. An estate account was set up for deceased tribal members. These accounts are still open due to lack of information, no death certificates, 

no birth certificates, and Whereabouts Unknown. These funds will remain as IIM 

accounts with the Office of the Special Trustee (OST). 

Conclusion 

At this time, the Department needs to better understand the impact the repeal 

of this fund will have on our actions moving forward and the trust responsibility 

we have to the Tribe, and therefore takes no position on the legislation. Again, 

thank you for the opportunity to testify on the S. 1223, the Klamath Tribe Judgement Fund Repeal Act. I would be glad to answer any questions the Committee may 

have. 

Thank you for the opportunity to provide a statement on behalf of the Department 

of the Interior (Department) on S. 1285. This legislation would allow the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians, the Confederated 

Tribes of the Grand Ronde Community of Oregon, the Confederated Tribes of Siletz 

Indians of Oregon, the Confederated Tribes of Warm Springs, and the Cow Creek 

Band of Umpqua Tribe of Indians to lease or transfer certain lands. The Department supports S. 1285. 

11 

The Department is aware that the Tribes listed in this legislation wish to lease, 

sell, convey, warrant, or otherwise transfer all or any part of their interests in any 

real property that is not held in trust by the United States for the benefit of the 

Tribes without further approval, ratification, or authorization by the United States. 

As the language in the bill indicates, such lands do not include any lands held in 

trust by the United States for the benefit of the Tribes. 

The Tribes have expressed their opinion that they cannot lease, sell, convey, warrant, or otherwise transfer all or any part of its interests in any real property not 

held in trust by the United States unless authorized by Congress. The Tribes presumably are referring to federal law, 25 U.S.C. § 177, which prohibits any ‘‘purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, 

from any Indian nation or tribe of Indians.’’ 

S. 1285 would expressly allow each of the Tribes to lease, sell, convey, warrant, 

or transfer all or any portion of its interest in any real property not held in trust 

status by the United States for the benefit of the Tribe. Under S. 1285, further approval, ratification, or authorization by the United States is not required in order 

to validate the land transaction. The legislation also clearly states that S. 1285 does 

not authorize the Tribe to lease, sell, convey, warrant, or otherwise transfer all or 

any portion of any interest in any real property that is held in trust by the United 

States for the benefit of the Tribe. Given these clear lines, the Department supports 

S. 1285 and believes this authority should be extended to all Tribes for fee simple 

lands. 

Mr. Chairman and members of the Committee, thank you for the opportunity to 

appear before you today. I am happy to answer any questions you may have. 

The CHAIRMAN. Thank you, Director Dearman. 

Now, I would like to call on the Honorable Warren Brainard. 

STATEMENT OF HON. WARREN BRAINARD, CHIEF, 

CONFEDERATED TRIBES OF COOS, LOWER UMPQUA AND 

SUISLAW INDIANS OF COOS BAY 

Mr. BRAINARD. Good afternoon. My name is Warren Brainard 

and I serve as Chief of the Confederated Tribes of the Coos, Lower 

Umpqua and Suislaw Indians. We are located along the beautiful 

rural Oregon coast, a long way from Washington, D.C. 

I am honored to testify today about S. 1285 and its importance 

to my people. I am accompanied here today by Teresa Spangler, 

who serves as Vice Chair of the Tribes. 

This bill would remove barriers that hinder our effort to create 

economic development opportunities and jobs not only for our tribal 

community but also for surrounding communities. These barriers 

stem from the overly broad interpretation of the Non-Intercourse 

Act and by certain title companies and financial institutions in Oregon. 

The bill would give us the right to buy, sell or lease property like 

any other American. It would make it clearer that no approval is 

required from the U.S. for real estate property transactions on our 

fee lands. The bill would also assist four other tribes in Oregon in 

this regard. 

Further, I would like to emphasize the bill would not affect any 

trust land and does not relate to gaming. 

We thank Senator Merkley for introducing S. 1285 and Senator 

Wyden for co-sponsoring this bill. We appreciate their efforts on 

our behalf. We also appreciate the Committee’s efforts. 

The Indian Non-Intercourse Act is a series of Acts from 1790 to 

1834 and was intended to establish the Federal Government as the 

sole authority over Indian affairs in order to maintain peaceful and 

stable relations with tribes and prevent the loss of Indian lands 

from colonial encroachment. 

12 

The Acts prevent the sale, lease, transfer or other conveyance of 

Indian land without Federal approval. Typically, the Act has not 

prevented the tribe from being able to engage in fee land transactions. 

However, some of the companies and financial institutions are interpreting the Act to require Federal approval for tribes for these 

types of transactions. The Department of Interior does not seek 

such determination for fee land transactions for tribes. Seeking 

congressional approval for every fee land transaction by a tribe is 

clearly impracticable. 

Over the past 200 years, the application of the Act has varied depending on the time period and location resulting in a confusing set 

of judicial, legislative and administrative decisions. In 2014, we encountered this problem. We sought to purchase a self storage facility in Coos Bay, Oregon using a commercial mortgage. 

However, the title company’s underwriters determined the Act 

required the transaction be approved by the BIA and refused to 

issue title insurance. We were unable to obtain a commercial mortgage to purchase this facility and had to do all that we could to 

put together enough cash to acquire the facility. 

Although we were able to complete the transaction, we do not 

have the means to execute all of our fee land transactions in cash. 

Without passage of this bill, we will continue to encounter this 

problem and will be unable to obtain mortgages, sell or lease existing fee lands. This would severely hamper our efforts to engage in 

economic development, create jobs and acquire some of our ancestral lands. We seek passage of the bill to address this problem. 

Thank you for your efforts and working with us to enact this bill 

into law. I appreciate this opportunity to testify and would be 

happy to answer any questions. 

Thank you. 

The CHAIRMAN. Thank you, Chief Brainard. Thank you also for 

your service. I understand your son is a Colonel in the Air Force 

as well. We appreciate your service and his. 

Mr. BRAINARD. Thank you. 

The CHAIRMAN. Next is Mr. Wharton. 

STATEMENT OF DONALD R. WHARTON, SENIOR ATTORNEY, 

NATIVE AMERICAN RIGHTS FUND 

Mr. WHARTON. Good afternoon, Mr. Chairman and members of 

the Committee. Thank you for the opportunity to be here today. 

I especially want to thank Senators Merkley and Wyden for introducing this legislation. I think Senator Merkley gave a very good 

synopsis of it, so I will try to limit my comments to additional 

issues. 

I want to point out that this legislation, as pointed out, was part 

of and is vestige of the Termination Act of 1954, disastrous and illconsidered legislation that had very adverse effects on the tribe 

and its people. In 1965 when this was adopted, there were 2,133 

members on the final roll who were the distributees identified 

under this Act. 

To give you one example of the inequities that flow from this, a 

woman of the tribe married a non-Indian man. She passed away 

and he, of course, was heir to her estate. Her son watched as he 

13 

then passed along his interest to his children, non-Indians, 

watched as distributions came down and they received money and 

he did not. 

To understand how this actually operates is to understand how 

inequitable it is and how disastrous it is for the tribe. This legislation denigrates sovereignty; it disallows a tribe the ability to determine the distribution and the allocation of its own assets. It deprives significant numbers of tribal members born after 1954 from 

sharing in any of that estate unless they are an heir or legatee. 

Just being a descendant does not necessarily guarantee that. 

Current members of the tribe cannot share in the distribution if 

they were born after 1954 and are not an heir. 

It is very expensive to distribute this money. The last distribu- tion cost in the neighborhood of $300,000, because you have to 

identify every single heir and legatee. You have to know who they 

are, what their share is, where they live and how to get a check 

to them. 

That is not always successful but that is a very expensive process 

for which the Bureau charges money and deducts that money from 

the money in the account, therefore diminishing the distribution. If 

the money cannot be distributed and it costs more than it would 

be worth to distribute it, under this Act, that money then goes back 

to the United States. It is not held for the benefit of the tribe, 

which I think is, again, a serious inequity to the tribe. Repeal of 

this Act would help to rectify that problem. 

Future judgments, by the way, it is not just judgment money. 

This Act specifically requires that it applies to the judgment fund 

and all other funds deposited to the credit of the Klamath Tribes 

in the United States Treasury. It is not just judgment fund money. 

It covers every resource that gets deposited to the Treasury. It is 

important to understand this Act has serious inequities and would 

rectify a longstanding wrong to the tribe as a result of the Termination Act. 

I understand the Office of Trust Services would like to better understand what is going on and we would very much like to facilitate the possibility of doing that. We would be glad to work with 

you to help that happen. 

If this repealed distribution of judgment funds would be pursuant to 1401, the other Judgment Fund Act, that provision in the 

Judgment Fund Act also provides if monies have been distributed 

and have not all been distributed, those funds under 1401(b) would 

be held for the benefit of the tribe. 

That would be a significant step forward in rectifying this inequity and serving the long term benefit of the tribe and honoring 

its sovereignty. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Wharton follows:] 

PREPARED STATEMENT OF DONALD R. WHARTON, SENIOR ATTORNEY, NATIVE

AMERICAN RIGHTS FUND

Chairman Hoeven, Vice Chairman Udall and members of the Senate Committee 

on Indian Affairs. My name is Donald R. Wharton. I represent the Klamath Tribes 

as an attorney with the Native American Rights Fund. This testimony is submitted 

in support of S. 1223 which will repeal The Klamath Tribe: Judgment Fund Act of 

1965, Pub. L. 89–224 (The Judgment Fund Act). The Judgment Fund Act seriously 

14 

compromises the Klamath Tribes sovereignty and mandates distribution of tribal 

funds in a manner detrimental to the best interests of the Tribes and its members. 

It is the last remaining vestige of the disastrous and ill-considered legislation that 

in 1954 terminated the government-to-government relationship between the Klamath Tribes and the United States. That relationship was restored on Aug. 27, 1986 

by Pub. L. 99–398, by the Klamath Tribe: Restoration of Federal Supervision Act. 

I. The Historical Context of the Judgment Fund Act 

The Klamath and Modoc Tribes and the Yahooskin Band of Snake Indians (now 

Klamath Tribes) had their government-to-government status as a recognized Tribe 

terminated in 1954 by the Klamath Tribe: Termination of Federal Supervision Act, (Pub. L. 86–40; 68 Stat. 718). This unilateral act of the United States Congress was 

taken without the consent or support of the Klamath Tribal Government. The purpose of the Act was to terminate Federal supervision over the trust and restricted 

property of the Tribe, and to remove from individual members their status as members of a ‘‘recognized’’ tribe. As a result, the lands and other tribal property were 

monetized and distributed to individual members of the Klamath Tribes. In order 

to accomplish this a ‘‘final roll’’ of the members of the Tribe as of midnight August 

13, 1954 was compiled (the 1954 enrollees). There were 2133 members on that roll. 

The more complicated process of determining which of the members were the socalled ‘‘withdrawn members’’ and which were the so-called ‘‘remaining members’’ 

isn’t germane to the consideration of S. 1223. 

In addition to the reservation property of over 850,000 acres of prime timber and 

ranch lands, the Tribe also had pending before the now defunct Indian Claims Commission (ICC) lawsuits against the United States seeking compensation for the mismanagement or misappropriation of tribal assets; primarily timber and ranch lands. 

In the 1950s, and until 1965, claims before the ICC and later the Court of Federal 

Claims which resulted in judgments against the United States were not paid to the 

Klamath Tribe until authorized and appropriated by Congress. As a result, Congress determined that it would be more efficient to adopt a ‘‘Judgment Fund Distribution Act’’ that would allow for any funds secured as a result of judgment 

against the United States and deposited in the United States Treasury to the credit 

of the Klamath Tribe to be distributed in accord with the specific requirements of 

that Act. Thus, Congress adopted the Judgment Fund Act on October 1, 1965. 

The Judgment Fund Act provided for distribution of funds appropriated in satisfaction of judgments obtained by the Tribes, and all other funds deposited in the 

United States Treasury to the credit of the Klamath Tribes, to the 2133 people on 

the Final Roll. (Sec 4 of Pub. L. 89–224). All funds deposited in the Treasury regardless of the source (e.g., payments for rights-of-way, trespass damages, or other revenues, together with any interest accrued) were included in the application of the 

Act. 

II. The Problem With the Judgment Fund Act 

The Judgment Fund Act’s limitation on distribution of funds to persons on the 

‘‘final roll’’, or to their heirs or legatees began to have unintended and deleterious 

results. As time went on, the 2133 members on the final roll began to pass on. 

Under the terms of the Judgment Fund Act, their share passed to their heirs or 

legatees. (Sec 2 of Pub. L. 89–224). Sometimes surviving spouses, sometimes children or other surviving relatives. Many of the people to whom shares passed were 

not Klamath tribal members, or even of Native American descent. As a result, distribution pursuant to the Judgement Fund Act has four impacts detrimental to the 

Tribes. 

1. The Tribes have no ability to determine how tribal funds can be allocated 

to members or other tribal priorities. Indeed, many tribal members are ineligible to receive any part of the distribution of such funds, and the Tribes cannot 

designate any funds for general tribal benefit or development. 

2. Because of inter-marriage with non-members the distribution of funds under 

the Act result in distribution of significant amounts of tribal funds to non-Indians and other non-members of the Tribes. 

3. Distribution to the living 1954 enrollees, or their current heirs or legatees, 

requires a complicated process of identification and certification of each individual, necessitating an extraordinarily lengthy and extremely expensive process. The costs for distribution are deducted from the available funds, thus significantly reducing funds available for distribution. 

4. Should there be funds in the account which the Secretary of the Interior determines are insufficient to justify further distribution—which could be substantial given the extraordinary cost of distribution—those funds must under the 

15 

Act be returned to the Treasury of the United States; not held for the benefit 

of the Tribes. 

The Judgment Fund Act did not contemplate the August 27, 1986 Klamath Tribe: 

Restoration of Federal Supervision Act, Pub. L. 99–398, which restored the government-togovernment relationship between the Tribes and the United States. Restoration in part reinitiated the enrollment of tribal members born after the compilation 

of the 1954 Final Roll. It also reinvigorated the Klamath Tribes’ Government which 

manages the affairs of the Tribes. Despite the restoration of many tribal powers the 

Judgment Fund Act disallows any tribal determination over the distribution of 

funds in the United States Treasury for the benefit of the Tribes or any members 

enrolled after August 13, 1954. 

III. The Effect of Repeal 

Repeal of the Judgment Fund Act would resolve these concerns and allow the 

Tribes to determine the best use of funds presently in trust accounts for the benefit 

of the Klamath Tribes. In the absence of the judgments from the U.S. Court of Federal Claims—there are no further claims before the ICC—would be made pursuant 

to the Indian Tribal Distibution of Judgment Funds Use and Distribution Act of October 19, 1973, 25 U.S.C. § 1401 (87 Stat. 466). That Act by its terms applies to any 

‘‘Indian Tribe’’, which includes the Klamath Tribes. It is presently unavailable to the 

Klamath Tribes because the1965 Judgment Fund Act preempts its application. 

IV. Conclusion 

The repeal of this last vestige of the disastrous and ill-considered Termination Act 

of 1954 would be a welcome and necessary next step in respecting the sovereignty 

of the Tribes and returning the Klamath people to their former robust self-sufficiency. 

The CHAIRMAN. Thank you, Mr. Wharton. 

Ms. Mann, your testimony. 

STATEMENT OF CARLA MANN, PRESIDENT, NATIONAL 

JOHNSON–O’MALLEY ASSOCIATION (NJOMA) 

Ms. MANN. Thank you for the honor of speaking before you again 

today. 

As you know, the National Johnson-O’Malley Association speaks 

for the JOM programs across the Nation asking for the unfreezing 

of the JOM Program. For approximately 16 years, we have come 

to Congress asking for that to be done. In the last four years, we 

have changed our direction. 

When NJOMA began the pursuit of legislation to modernize and 

reform the Johnson-O’Malley Program, we established four primary 

goals for this legislation. First, we are seeking for the JOM Modernization Act to obtain a complete update of the student count for 

the number of Indian students eligible for JOM services and assistance. 

Second, we wanted to initiate and conclude an open, honest and 

reality-based discussion about the true cost and funding needed to 

provide these types of supplemental learning and educational services and assistance needed by Indian students in today’s educational and career environment. 

Third, we wanted to obtain a general update and modernization 

of JOM’s rules as reflected in Title 25, Code of Federal Regulations. 

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

When we wanted to update the student count, we looked in different directions for how we were going to complete that. One suggestion was to utilize the count from the Census which is one of 

the accepted U.S. Government datasets, as well as the National 

16 

Center for Education Statistics and Office of Indian Education, Department of Education. 

A recently published article shows that the Native population 

has increased by 26.7 percent across the Nation. The children we 

count right now are approximately 272,000. According to the Census, we have nearly 1 million reported. 

NJOMA hopes to be able to continue working with this Committee, our other congressional supporters, the Department of Interior, and the BIE to fully identify and extend JOM services and assistance to the full Indian student population JOM is intended to 

reach. 

In 1995, when the JOM was frozen, the students received ap- proximately $125 per student. Right now, in today’s dollars, we are 

getting $63. Effectively, that is around $43 per student. It can be 

much less for those tribes who count all students regardless of the 

number they are receiving money for. 

On behalf of over 1 million Indian children eligible for JOM, 

NJOMA is overjoyed by the Committee’s speedy consideration of S. 

943 and would urge immediate approval. After 20-some years of 

waiting for any action by Congress or the Administration to rectify 

this shameful condition, that the JOM Program exists today, we 

are encouraged by today’s hearing and the Committee’s pending 

approval of this legislation. 

We are hopeful that this Committee and the Senate will take 

quick action on this bill so that the House would have the opportunity to also quickly act on the bill. Given the number of tasks 

prescribed in the bill, we pray that all this work can be completed 

and put into place in time for the 2018–2019 school year. 

Each school year that passes is one more year that our students 

are not receiving the benefits they should be receiving through 

treaty rights to further their education. To meet the proposed 

schedule, we need this bill enacted and signed by the President as 

soon as possible. 

I thank you for your time and am open to any questions. 

[The prepared statement of Ms. Mann follows:] 

PREPARED STATEMENT OF CARLA MANN, PRESIDENT, NATIONAL JOHNSON-O’MALLEY

ASSOCIATION (NJOMA) 

Mr. Chairman and Members of the Committee, I am pleased to represent the National Johnson-O’Malley Association (NJOMA) before you today in support of S. 943, 

the Johnson-O’Malley Supplemental Indian Education Program Modernization Act 

of 2017; legislation developed to direct the completion of necessary updates to the 

Johnson-O’Malley Supplemental Indian Education program (JOM) operated by the 

Department of Interior, Bureau of Indian Education (BIE). 

Mr. Chairman, as I have testified before, NJOMA has for nearly 25 years and 

through several Administrations advocated for actions to reverse the Department of 

Interior and BIE’s ‘‘determined unwillingness’’ to complete the necessary work to be 

able to finalize a count of the numbers of Indian students ‘‘eligible’’ for JOM services. In 2012, 2014, 2016 and again in 2017, Members of Congress approved language in the Interior appropriations bills directing the Department and BIE to update and report to the Congress a count of the eligible Indian students for the JOM 

program. Given this unacceptable situation, I come here again today on behalf of 

the over 1 million Indian children asking this Committee and the Congress to quickly approve S. 943 so that these children can rightfully obtain the kinds of supplemental educational services and assistance they need to become productive American citizens. 

We are extremely pleased and thankful that Senators Heidi Heitkamp, James 

Langford, Steve Danes have stepped up to reintroduce legislation to direct the SecVerDate Mar 15 2010 11:14 Sep 25, 2017 Jkt 026823 PO 00000 Frm 00020 Fmt 6633 Sfmt 6621 S:\DOCS\26823.TXT JACK
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retary of Interior to acknowledge the 20 plus year gap in data collection for the JOM 

program, and to select and use one of the widely accepted government data sets 

such as Census Bureau and/or National Center for Education Statistics (NCES) 

data, to develop a reasonably reliable projection of the current JOM-eligible student 

population. This bill will authorize the Secretary to use one these data sets to establish a new baseline count of eligible Indian students for use in help BIE and 

NJOMA build a modern, more accurate, and uniform allocation funding formula; establish a data reconciliation process-like the one used by HUD in the Indian Housing Block Grant program to work with Tribes, public school districts and other organizations to refine, and establish on an ongoing basis, the requirement for BIE to 

keep the count accurate and report this information to the Congress on an annual 

basis. 

When NJOMA began our pursuit of legislation to modernize and reform the Johnson-O’Malley program, we established four primary goals for this legislation: 

• First, we are seeking the Johnson-O’Malley Modernization Act to obtain a complete update of the student count for the number of Indian students ‘‘eligible 

for JOM services and assistance’’; 

• Second, we wanted to initiate and conclude an open, honest and reality based 

discussion about the true cost and funding needed to provide the types of supplemental learning and educational services and assistance needed by Indian 

students in today’s educational and career environment; 

• Third, we wanted to obtain a general update and modernization of JOM’s Rules, 

as reflected in Title 25, Code of Federal Regulations; and 

• Finally, we wanted to codify the objective of increasing geographic and Tribal 

participation in the Johnson-O’Malley Supplementary Education Program. 

Updating the JOM Student Count 

For nearly 25 years and through several Administrations, the Department of Interior and BIE have been unable, or in some peoples’ opinion, unwilling to do the necessary work needed to finalize a count of the numbers of Indian students currently 

enrolled or calculate the true total count of Indian students eligible for JOM services. It should be noted once again that the JOM program has been all but frozen 

in time since 1995: no updated student count, no update of the program rules, and 

no real increase in funding to meet the real-time growth in the eligible population 

as noted from data collected for other Indian education activities and the 2010 Census (and its bi-annual Community Population updates). 

Once again, I would remind the Committee that in 2012, 2014, 2016, and again 

in 2017, the Congress approved language in the Interior appropriations bills directing the Department and BIE to update and report to the Congress a count of the 

eligible Indian students for the JOM program. Given what I believe we would all 

agree is a totally unacceptable situation, we firmly believe that the ‘‘total eligible 

student population’’ for JOM when projected using the accepted factors of ‘‘enrollment in a Federally recognized Indian tribe or 1⁄4 blood quantum’’ that the eligible 

JOM Indian student count is well over 1 million Indian children verses the 272,000 

students counted in 1995, and still in use for funding and allocation purposes today. 

NJOMA is totally supportive of the authorization contained in S. 943 that provides the Secretary of Interior with direct authorization to select and use one or 

more of the widely accepted government data sets such as Census, National Center 

for Education Statistics (NCES), and data collected by the Office of Indian Education of the Department of Education to develop a reasonably reliable projection 

of the currently enrolled JOM-eligible student population. We hope to be able to continue working with this Committee, our other Congressional supporters and the Department of the Interior and BIE to fully identify and extend JOM services and assistance to the full Indian student population JOM is intended to reach. 

Determining True Cost and Funding to Provide Supplemental Learning 

and Educational Services and Assistance Needed by Indian Students in 

Today’s Educational and Career Environment 

Under currently utilized JOM regulations (Title 25 Code of Federal Regulations 

(CFR) INDIANS, Part 273, 16–17), JOM programs are based on community and student needs assessments, not the needs of the school district and therefore provide 

specialized educational services to Indian students. As you may know, the JOM program is the only Federally-funded Indian educational program that allows for student, parent, and community involvement in meeting their educational needs which 

are both academically, culturally and geographically based. 

In 1995 when JOM was frozen, the per student allocation amount funded was approximately $125.00 per student, based on the then 272,000 counted students. A reVerDate Mar 15 2010 11:14 Sep 25, 2017 Jkt 026823 PO 00000 Frm 00021 Fmt 6633 Sfmt 6621 S:\DOCS\26823.TXT JACK
18 

view of the nearly 22 years of frozen funding for JOM appearing later in this testimony shows that today’s JOM per student allocation is effectively $43.00 per student; an amount that is not based on any accepted measurement of the true costs 

of the goods, services, personnel and transportation costs and types of assistance 

needed by JOM eligible students. 

NJOMA is pleased that S. 943 directs the Secretary to establish, in consultation 

with contracting parties, a present day per student funding allocation that shall 

serve as a funding ‘‘target baseline’’ for the JOM program going forward. This baseline will enable all of us to remain focused on insuring that the commitments make 

as far back as the early 1800s, and codified in the 1934 Johnson-O’Malley Act, to 

‘‘ensure that Indian children received the educational opportunities that would not 

otherwise be provided’’ are kept. 

We are also pleased that S. 943 requests that the Secretary make recommendations for legislation to logically increase the amount of funds available per eligible 

Indian student through contracts, at amounts equal to or greater than the amount 

of funds that were available per eligible Indian student for fiscal year 1995, and to 

identify additional sources of funding that do not reallocate existing funds otherwise 

utilized by Indian students served by JOM. 

Finally, NJOMA is also supportive of the provisions that establish ‘‘Hold Harmless’’ funding conditions in S. 943, and are pleased that they accommodate the need, 

should it occur, for JOM Contracting Parties to adjust their program and services 

over a period to accommodate a decrease in enrolled students should it fall below 

the number of eligible Indian students identified in the initial eligible student count 

for that program entity. 

Updating and Modernization of JOM’s Rules 

The program operating rules for JOM are terribly outdated and lacking in the 

kind of guidance generally needed by JOM Contracting Parties. Many of the needed 

Rule updates are to provisions that have not been reviewed or amended since the 

1970s, or are in areas where the Courts have rendered decisions that require JOM 

Rules to be brought into compliance with the Court’s findings such as the definition 

of ‘‘eligible Indian student’’ as ruled by the Ninth Circuit Federal District Court in 

Diane Zarr v. Earl Barlow, 800 F.2d 1484 (9th Cir. 1986). S. 943 instructs the Director of the Bureau of Indian Education to undertake and 

complete a rulemaking process to determine how the regulatory definition of ‘eligible 

Indian student’ may be revised to clarify eligibility requirements for contracting parties; determine, as necessary, how the funding formula may be clarified and revised 

to ensure full participation of contracting parties and provide clarity on the funding 

process; and otherwise reconcile and modernize the rules guiding the JOM program. 

NJOMA looks forward to working with BIE and other JOM stakeholders to improve and update the JOM program Rules; and are hopeful that this effort will be 

conducted via a fully engaged and consultative process. 

Increasing Geographic and Tribal Participation in the JOM Program 

S. 943 instructs the BIE to consult with Indian tribes and contact State educational agencies and local educational agencies that have not previously entered 

into a contract to determine the interest of the Indian tribes and State educational 

agencies and local educational agencies in entering into contracts, and to share information relating to the process for entering into a contract. This mandate is justified because in 1996, BIE stopped accepting and processing applications from Tribes 

and other potential JOM program contractors, even as inquiries continued to flow 

into the Bureau from school districts, Tribes and other eligible entities. 

NJOMA strongly believes that as the true impact of the likely ‘‘total eligible student population’’ for JOM of well over 1 million Indian children and that the need 

to increase the number of JOM Contractors, expand resources and otherwise raise 

funding for this U.S. Government ‘‘Trust Responsibility’’ program will be self-evident. We likewise believe it is important that these and other outreach efforts are 

critically needed to insure also that ‘‘No Indian Child is Left Behind.’’ 

What Does the Census Data Tell Us? 

In previous testimony NJOMA has spoken to the issues of using widely acknowledged data and a reconciliation process to better determine and establish a viable 

estimate of the number of JOM eligible Indian students. The Native American population that has been one of the demographic groups experiencing positive population 

growth for the last 40 plus years. According to the 2010 census, 5.2 million people, 

or 1.7 percent of all people in the United States, identified as American Indian and 

Alaska Native, either alone or in combination with one or more races. This population alone grew by 27 percent from 2000 to 2010. In the 2010 census, those who 

reported being American Indian and Alaska Native alone totaled 2.9 million, an inVerDate Mar 15 2010 11:14 Sep 25, 2017 Jkt 026823 PO 00000 Frm 00022 Fmt 6633 Sfmt 6621 S:\DOCS\26823.TXT JACK
19 

crease of 18 percent from 2000 to 2010. The multiple race American Indian and 

Alaska Native population, as well as both the alone and alone-or-in-combination 

populations, all grew at a faster rate than the total U.S. population, which increased 

by 9.7 percent from 2000 to 2010. The data also shows us the steady growth that 

has occurred and is forecast to continue to happen within the ages 3–12 years old 

demographic, and the forecasts up to and beyond 2020 present this same picture. 

In 2014, the U.S. Census Bureau provided Representative Tom Cole (R–OK) with 

census data regarding American Indian and Alaska Native child populations. The 

information provided included data tables that reflect American Indian and Alaska 

Native population aged 3 to 18 years by selected tribe from the 2000 Census, the 

2006–2010 American Community Survey, the 2010 Census, and the 2008–2012 

American Community Survey. In addition, the Census Bureau provided population 

projections of the American Indian and Alaska Native population aged 3 to 18 years 

for 2010 through 2020. According to the most reliable numbers available from the 

2010 Census, there are at least 798,000 Indian and Alaskan Native students who 

are counted as having been enrolled in a single, federally recognized tribe. That 

number is over 1.0 million eligible Indian children who, based on meeting the current JOM 1/4thquantum requirement, and attending Public Schools who we believe, 

should also be receiving JOM services today. 

Because of bureaucratic fumbling and Administration neglect, JOM’s student 

count has been frozen at 272,000 students since 1994. The Senate Indian Affairs 

Committee stated in its 2012 Report accompanying S. 1262 (Senate Report 112– 

262), ‘‘[that] currently, 620,000 or 93 percent of Native students attend public 

schools and approximately 45,000, or 7 percent, attend BIE schools.’’ It was clear 

then, and remains true, that there are many JOM-eligible students being denied or 

deprived of services that they are legally entitled to, amounting to a failure of the 

Federal Government to meet its trust responsibility. 

NJOMA has lead an effort—that we are pleased that the BIE has now embraced—to temporarily set-aside BIE’s once used annual student count process, and 

replace their count with U.S. Census or other data to build a new baseline count 

of JOM Indian students. We have argued that Census data is reliable, comprehensive information that is provided without any additional funding or resources for the 

Bureau. There are many federally funded programs, including ones specifically for 

Native American populations, which use U.S. Census data for the apportionment of 

funds. Census information is reliable data upon which Congress and the Administration regularly rely including for the Reading First State Grants (Dept. Ed), Career and Technical Education—Basic Grants to States (Dept. Ed), Tech-Prep Education (Dept. of Ed), Safe and Drug-Free Schools and Communities State Grants 

(Dept. Ed), Water and Waste Disposal Systems for Rural Communities (USDA), 

Grant Program to Establish a Fund for Financing Water and Wastewater Projects 

(USDA), Special Programs for the Aging Title VI, Part A, Grants to Indian Tribes 

Part B, Grants to Native Hawaiians (HHS), Urban Indian Health Services (HHS), 

Low-Income Home Energy Assistance (HHS), Head Start (HHS), Family Violence 

Prevention and Services/Grants for Battered Women’s Shelters Grants to States and 

Indian Tribes (HHS), Preventive Health and Health Services Block Grant (HHS), 

Violence Against Women Formula Grants (DOJ), State Public Water System Supervision (EPA), Water Pollution Control State, Interstate, and Tribal Program Support 

(EPA), Nonpoint Source Implementation Grants (EPA), Economic Adjustment Assistance (DOC), National Fire Plan—Wildland Urban Interface Community Fire Assistance (DOI), Americorps (CNCS), Native American Employment and Training 

(DOL). 

The Federal Government, including the Department of Interior and the Bureau 

of Indian Affairs use Census data for other Indian programs including tribal housing, tribal roads, law enforcement, and labor force reports. BIA currently uses Census data for its American Indian Population and Labor Force Reports and Congress 

regularly uses this data to inform policymaking decisions. Census data is also widely used locally for planning and program purposes to identify appropriate economic 

development approaches and gauge particular community needs and resources. Another critical use of this data is to determine levels of federal funding for tribes 

under the Workforce Investment Act, the Indian Housing Block Grant program, the 

BIA Tribal Transportation program, and many other Indian programs. Using Census data would reduce duplicitous spending by BIA to perform a count for which 

data already exists. Any significant changes to data collection (or lack thereof) and 

the continued non-collection of data impact the ability of tribal governments to adequately provide for their citizens, and affect the federal government from carrying 

out its trust responsibility in essential social and economic areas. 

In 1997, OMB issued a Federal Register notice regarding revisions to the standards for the classification of federal data on race and ethnicity. OMB developed race 

20 

and ethnic standards in order to provide ‘‘consistent data on race and ethnicity 

throughout the Federal Government. The development of the data standards stem 

in large measure from new responsibilities to enforce civil rights laws.’’ Among the 

changes, OMB issued the instruction to ‘‘mark one or more races’’ after noting evidence of increasing numbers of interracial children and wanting to capture the diversity in a measurable way and having received requests by people who wanted 

to be able to acknowledge their or their children’s full ancestry rather than identifying with only one group. Prior to this decision, the Census and other government 

data collections asked people to report only one race. 

The OMB states, ‘‘many federal programs are put into effect based on the race 

data obtained from the decennial census (i.e., promoting equal employment opportunities; assessing racial disparities in health and environmental risks). Race data are 

also critical for the basic research behind many policy decisions. States require these 

data to meet legislative redistricting requirements. The data are needed to monitor 

compliance with the Voting Rights Act by local jurisdictions’’. 

While BIE has traditionally relied on tribes to provide data for the student count, 

tribes should not bear sole or primary responsibility for providing quality data with 

little to no resources, training, or other support from the Bureau to do so. It is clearly essential that student count data be available for monitoring the quality of services that the BIE and JOM contractors are responsible for providing to American 

Indian and Alaska Native students. Going forward, there needs to be greater coordination between the BIE, Census Bureau, and the Office of Management and Budget 

to address the widespread problems that plague data collection generally in Indian 

Country, and especially JOM. 

For the record, BIA/BIE’s 2012 and 2014 counts—as imperfect as they were— 

made it clear that there have been increases in the number of students needing and 

being serviced by JOM since 1995. The only real issues in dispute today are how 

much of a student increase has occurred, and what the cost would be of adequately 

serving this population. As the number of students served by JOM has grown, so 

too must the funding in order for JOM to continue to operate and offer the much 

needed services it provides to an already underserved Native American population. 

In our view, at this point in time, it is clear that this data is a more comprehensive compilation of population data and more accurately reports the demographics 

of the client group that JOM is intended to serve. The BIE has more than proven 

that is not capable of performing and reporting student counts as mandated by Congress. S. 943 will direct the use of Census and/or other data to bridge the over 20- 

year gap since the last true JOM student count, but does serve as a replacement 

for a BIE count altogether. 

We look forward to working with BIE, the current JOM contractors and all new 

program providers in providing Congress with accurate and compelling justifications 

for increases in funding and expansion of the allowable-but badly needed-program 

activities that JOM can operate that will advance the attainment of the goal of enhancing the education and training of Indian students. 

JOM Funding and Student Count History 

For over 60 years, the JOM program constituted a separate appropriation under 

the Federal budget and appropriations bills. However, in 1995, the Bureau of Indian 

Affairs moved the JOM program into the TPA budget category of the BIA. The TPA 

is a block grant to tribes of a number of program allocations and authorities which 

originally were separate programs. Theoretically, the TPA system allows tribes flexibility to move funds between activities within the program to meet locally, tribally 

designated priorities. However, as with most block grant schemes, the TPA has been 

used as a budget regulatory tool, with amounts for the TPA account limited and not 

increasing with the needs of various components. In fact, the TPA has allowed the 

Federal government to flat-line funds for the account for years, while the needs of 

the constituent programs have increased. The tribes and the JOM Indian community resisted the proposed Bureau addition of the JOM to the TPA. Despite tribal 

and educator opposition, the BIA added the JOM program to the TPA, creating the 

current program. 

Prior to the 1995 freeze, the BIA had a full time JOM Director in the D.C. office. 

This director collected the program annual reports, student count information, and 

provided technical assistance the programs. While there were local JOM managers 

in the regional BIA offices that oversaw the local JOM programs and provided direct 

technical assistance, the JOM program administrators had a direct line to the Director in D.C. The Director’s primary task was to provide the JOM programs with their 

annual funding based on the student count received from the local JOM managers. 

The Director makes a funding distribution based on the national budget divided by 

the student count, taking into consideration the cost of living in each state. For exVerDate Mar 15 2010 11:14 Sep 25, 2017 Jkt 026823 PO 00000 Frm 00024 Fmt 6633 Sfmt 6621 S:\DOCS\26823.TXT JACK
21 

ample, Alaska received the highest per student cost based on the high cost of living 

in that state. 

The regional JOM managers would collect the information from the local JOM 

programs; they would put out notices of deadlines, hold JOM forums, and conduct 

annual evaluations of each program, including a random student certification 

verification and financial audit review. These regional managers would provide their 

findings of non-compliance to the programs and provide them a timeline to comply 

or funding would be withheld until such time as the individual program was compliant with federal regulations and BIA policies and procedures. Compliance included 

annual reports, student count certificates, or lack of Local Indian Education Committee (LIEC) involvement. 

The LIEC is comprised of parents of eligible Indian students enrolled in the public 

school district. Choices are made at the local level, with scarce resources going to 

locally determined needs. The regional JOM managers also reviewed each JOM program application and ensured that there were measurable goals and objectives 

based on an actual needs assessment that was conducted annually. In addition, the 

managers reviewed their prospective budgets before forwarding them to the Director 

in D.C. The managers collected the following from each program and sent them to 

the Director: annual needs assessment, program application with measurable goals 

and objectives, budgets, student count verifications, LIEC bylaws, and LIEC election 

process. 

In 1982, the BIA proposed eliminating the JOM, arguing duplication of Indian 

Education Act. Congress soundly refuted this reasoning, stating the programmatic 

differences in local Indian control and scope, and difference in student eligibility. In 

1983, the Department of Education (DOE) proposed eliminating the Indian Education Act, arguing similar funding was available from DOE and the lack of accountability for how the funding was used. 

The U.S. Department of Education oversees the Title VII Indian Education Act 

programs and Title VIII Impact Aid funding which Congress considers duplicate 

funding sources for Indian Education. The Title VII program is run directly through 

the school districts and is not subject to tribal control. The tribes have no actual 

authority over the design or implementation of the Title VII programs. 

Under the JOM regulations, parents of eligible JOM Indian students are ‘vested 

with authority’’ to design and implement local JOM programs. 25 Code of Federal 

Regulations (CFR) INDIANS, Part 273, 16–17, states JOM programs are based on 

community needs assessments, not the needs of the school district and therefore 

provide specialized educational services to Indian students. The JOM program is the 

only Federally-funded educational program that allows for student, parent, and community involvement in meeting their educational needs which are both academic 

and cultural based. 

The eligibility for Title VII students is not based on students being an enrolled 

member of Federally-recognized tribe; they simply need to identify themselves on a 

DOE Form #506. Congress reacted so negatively to this proposal that any further 

debate on these two programs was shelved and put to rest. 

However, the effort to eliminate JOM was resurrected in 1995. The effort to eliminate JOM began with the reduction and eventual phasing out of the regional JOM 

manager positions, and eventually, the Director’s position in D.C. The Director went 

from a full time coordinator, to a quarter time position, and then phased out altogether. At this time, there was an effort by the BIA to put more emphasis and efforts into the Bureau-operated schools and wanted to direct JOM funds to those 

schools. 

JOM funding has been in a state of ‘‘suspended animation’’ since 1995. The funding formula and the movement of JOM into TPA has caused many tribes and other 

grantee/contractors under JOM to be frozen at the 1995 student count and funding 

figures, indefinitely. In 1994 the eligible Indian student count was 272,000 and now 

there is an unmet financial need for the additional JOM students currently being 

served by public schools throughout the nation. This student count is not an accurate representation of the number of Indian students served today. 

Since the freeze in 1994, there has been no correlation of educational services 

with the lack of an accurate Indian student count. The JOM programs are not able 

to show due to the freeze and those Indian students attending public schools are 

being overlooked for services. Without a current JOM student count, there is no way 

to estimate the current percentage of JOM students being served in comparison to 

the BIE. 

Many in Indian country believe that the Department of Interior and the BIE have 

mismanaged the JOM count for over two decades, a situation they many contend 

is a clear violation of the Federal Government’s Trust Responsibility to Indian 

Country. Evidence of this mismanagement by BIA occurred with the FY 2007 BudgVerDate Mar 15 2010 11:14 Sep 25, 2017 Jkt 026823 PO 00000 Frm 00025 Fmt 6633 Sfmt 6621 S:\DOCS\26823.TXT JACK
22 

et submission. Lack of program performance accountability, duplication of other 

state and federal programs and implementation of management efficiencies were 

among the reasons given in the budget documents for the reprogramming of twentyfive percent of JOM funds by the BIA Tribal Budget Advisory Council (TBAC). The 

BIA has not monitored the JOM program properly since 1995, and thus these reasons are invalid and unverifiable. The JOM program is the one remaining Federal 

program that puts the program under the strict control of a LIEC. 

Legislative History of JOM and the House Subcommittee on the Department of 

the Interior FY 1993–2017 

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


712a1.eps
23 


712a2.eps

rosnmony 

, .• , f'V1996 

j, I 

'I' i 

tban lo; f'Y 1996 requo't 

&mm; ]OM luntls were tr.m.sferred to selfgovornanco comporu. 

I,. 'Li 
24 


712a3.eps

., 

I''' 

"' 

1.'" 
25 


712a4.eps

o.rn SO~Rc~·:._ :: ~~~~:~iio : · #-ST~DENTS NOTES CIT!'tTION 

flit!Diill• 

HIA Hudgot PI 2001 Actuolo tlot ~iS<US>c.l . To jUSlify coWns)OM f<Ln~< in holf, ~lA Pgs. BIA·TPA 

Justiftca~on $1G,666,000 SBJS Its roro responslblllcy Is to oporato ~1-23 

~¥2006 fotlerally ftmdod .ohools; in l~ht of FY 2005 ""'''<Liy, IliA wonts to cut down on 

Enoctod: 

$16,510,000 

.upplomontal education funding. 

1"!2006 2005 RequeS'I: 

$7,777,000 

"" . BIA o;<plolnsthotJOM "grants for Jnd!on PHs.lB, 74 TesUmony chil<lron Mtendin~ pnlolic schools tlo not 

ru: FY2006 ourron~y add•~-" a lnOIJS<d go"! for 

aoademlc achlevomontond dupllcato 

similar fundinu modo avoilablo by tho 

Deportment ofEducallnn." 

. Il:<:lmplo of <iuplicato fimtline: DOE hes 

$150 nnlliou m funi.ling 'P«ifi"lly 

taTgotcd to Indian studonts attondlng 

public schools. 

. Rom;oinine]OM funding will ~otaward 

"the h!ghest-pr!ar!ty campononc<" of~>o 

program 

o.rn SOURCE AM(/UNT, nsTUQENTS NOTES CITATION 

"' UESTED. foUNDED. BIA Budget l'Y 2005 No,dismssNl . "These grnnts l'gs, BIA-SUMJu•tiftoatlon Enactod; .,, duplicou•e oratl>or retlernl and smto 12,13: 

FY2007 $!6,51D,OOO assl<tance progt-anL< and do not addt·oo• • BJA-~D-1 

focnsNl 1'\'2006 gaol far O<<>dcrnicachicvcmcnt Eliminatin~ 

Enactod' tho $16.4 million ]OM grants allows tl1e $16,37!,000 Bureau to realign funds and !oCIJs =our= 

on \he T'<'guirements of rho Burcou Funded F\'2007 school system, while also •·educln~ 

Roquo.-n rctlundancy with other 

'" l'ede1·al I'll tam8." 

"" . Sen. !Jorgon [D-NO) osks wby JOM lscuL, Part 5, pg. 71 1"-<limony soys thlsts a mlstoi<o, points om tiM! rooF¥ 2007 DilL dO<s notocom tl> incronso oOut'O~on 

~006 spel\dlng elsewho,•e so "-' \0 "refo""" 

lt!elf. 

. lliiL oxpl al us <loa< it is phosin& uu ll 0 M 

because DOE pru~t'Oil'-' can llDW provide 

thc><~mo cs ohonts. 
26 


712a5.eps

DATE SOURCE 

R:~~E~D #STllDE~TS )/Q'J'e$ Cl'l'A'riON 

FUNDED 

SIIIBUdBOt fYi!006 Nol\li~c~c<l "The FY 2Q08 roquo;t ~ropo;"" •-orrospondin~ P~I~-TG-l; 

jus@ca~on E!naotod rod notions ru Solf-Governon•o Comp""' and IA-EDUC-1 

lorfV200S t!M7l.OOO Coru:olldated Trlbol Gou,rnm•nt Programs 

funding relatud to )OM_ Tills rodu"ton 

I'\'2007CR:$Q oliminmsS6.7 n1111i0n from Self-Governn"'' 

Comp.act< 

FY2008 Publlosd>ool district.• will rontlt>ue to rorelvo 

Request: SO lundhlgond '"' oligihlo IOI' gren!S >imiloc w 10~1 unctor Tille VII or tl" I milan ll<IU<'<tiu~ Act 

(rul>lie ~ow l07-1lO)thrnuEh the US 

Dep01·tment of Ed<1<:atTon. Title VII funding 

addrosse. thespeolol oo.dem!oond cultot-ally 

l'elevont edu,atlon t>eod• of hldtan d>lldl~n " 

"" . Testlmonyfrom UmoHlla: Restoro JOM to 2QQ1lovol.< Pss 1g4, 195-

To.Hmony . Umatilla questiQtts BIA'o argument lil•t )OM vra>du~lioative -of 91.292,329. 2007 ,.., F~ zaaa 1'ido VII funding '""iloille throush DOE, soying that jOM monies 358,36~. 

go to tribe> whor"">Ti~o VII mome> am man11,1led by non-Indian 

sdtool disOicts. 

. U "'"-uJ lo om•ibu~~ u ndorp o rform~nc' of it:: >tutlon!l: to lock <>f 

]OM pro~'~"'' 

. Confu<loratod Tribes of the Warm ~prlngs l\esOTVatlon In Oregon 

oho ">tiftos, asks that BTA re>tore )OM to U7 million 

. Warm Springs: "ijOM)Is the only tool ovallollle to our Tribe to 

directly portidpute In the K-12 edutotlon of our ohUdcen." 

. fond dn l<lc B ' n d ' JOM not duplicatcvc; unlil<C o thw p rog•~rns • 

JOM l»d a oulturol enrlohmentonJ Nmivo lon~uogo co>npon~ut 

unovoltahlo cl'o"hore flsi<S lhot nJA ""'""" fo>ll fumling." 

. NCAI• )OM not duplloatlvo: voluoblo booau<o" sovo trib" o 

foothold in tho K-12 publk>ehool 'Y'hm"' 

. Nisquolly; "While we •upportthe 

adlninistmtion's initiatiVe to improve pel'fOI'Jnonco<>t iliA 

"'"""''' wo '""""' ''~1101'1 baloncing th&>~; inorou>uswith cut> thatw<n1ld hmn children attending public school• ond our 

youth who arc pursuin~ a collogo o~umtion." As its that EJA 

''"''""')OM toS16.3M. 

. Puyallupo ~ostore !OM lumlin~ to Si6 million . 

. Sli<l~],.:,n,_B,nno'k Fort Hall: Rc>torc )OM funclin~ to S16.4 

m<llion 

. Sl<ekomish; jOM koy to tho trlbe'sabillty to tt·ock student.s' 

ac'adomk ro'""'' 
27 


712a6.eps

"m SO~RCE AMOUNT #,SlllDENl'S NOTJ<S CITATION 

RE UESJ'IiO · ru'NDBD 

BIABudEet I'YZ0~7 Notdl«:o«<d . RIA jU,tlfic< olim10a~o" uf)O~I. points out I'!; IA-OVW-0; 

)usOITc-1~on Opomtin~ ~ud~ot u,.,, DOE'' Offitt: uf!n<l1on Edo<e"i\tlon IA-ODU-~ 

for I'\' ZOO~ for]OM, I"""Vide• c-ultural ond cduMiumol >1lppurt S19,7D0,000 tot.l akin"' ]OM'>- . Grant<o . Roports that in zooa. DOE's Dffico of $12,000,000 Indian Educa~on admlnl>ter<d $11~.6 

. ForSell· mnllon In gmnts for lonprovlng Indian 

Gov.;rnonco studontochlevemellt SJ>oclal programs, 

Tribes: and rc.oao~h "'""i'Y 

$6,6M,ODD 

. ,., 2008 Consoliillkd 

Tribal 

Programs: 

Sl,Oll,OOD 

FY 2008 Request: 

" 

FYL008 Enootod 

$21,341.000 toO>! 

. Gr.>nt>< 

$13,782,000 

. SeiHiov: 

$~.570,000 

. Con.•nlldotcd 

Tribal 

"'"~"''"'" "" FVZOO~ 

Reque;toSO 

"" . When asked n bout th e olim 1 no~ o n of J 0 M. Se cret:ny Pg.l%, 222, 

To<~mony Kcmpthorne said tlmtsuoh funding could be l'oplaccd 291,325,309, 

''" FY2009 througll DOE. 374-75,3H 

. lllomo NoVOJO School Boot<l' BlA'' ''"'sooin~ foe mtHngJOM 4{1~.113,415, 

is unsub>lanlialotl; oultin~ JOM moans lellin~ go of a staff 453, 400, 454, 

member inl<gral to Indian learnln~. 

. Umotillo; Some informa~on as prov:!ous yeat· • 

. Fond du Loo:)OM key to hoi ping loJEau ld<l< l<cop up With_tho 

adllevementgools of No Child Loft Hohiuli. 

. )nmestownS'JGollom• Rostoro )OM to $21 4 million . 

. Lac Du rlambeou,)OM rtlnds help lfiball<l<i> make tho 

trnn>ltlon from onlndlan·n>Ojadly olomont»ry oohuul inru • 

predominately white hlghsol1ool; I'"'"" <>Ul th•l DOB ha> not incrcosed I<S funding faJ·Indlan progmlll-' illyoor.<. 

. Lummi: Re"o1-e]Olll to$21.4M . 

. NCII.I·. "Wh,. is different ,.,0111: ]OM l<d>at IL< "spo~''l •nd 

nni no nooM' "' dotermlnod not b dlo .<<hnnl boords. hu< 
28 


712a7.eps 712a8.eps

DATE I SOURCE 

BIABudBot 

Ju;~[kation 

fur2010 

200~ 

"" Tostimony 

re: l'Y2010 

instea<l throu~h paront committees that each ]OM pro!:f11m Is 

roquirocl to have ... ": Restore ]OM to ~Z1.1 million. 

Puyoll up: Restore )OM to S16M. 

Qolnaelt Restor< )OM tn S2I.4M 

Skok<>mi>h; '"remain disappuint•d" ,-o: <uttins )OM. 

Sq,.._,in l•l,ml: R•>iuro JOM to 521.4 M. 

Stondin Rock: 0 osos OM cut>. 

flMOUNT REQUESTED NOTES 

FY 200B ~na<ted: $13,782,000 . E:<~lalru that)OM can bo "'"" fm·small expenses such a~ scl>ool _, u p pU " FY 2009 l>n><ted: $13,797,000 . P,iority given to o-rhool> on or adjacent to 

FY 2009 Funding lndion re<ot'lotions or >d10ols that arc Ohlolloma- or Al~sko-I>Ored 521,420,000 tolill 

. . Appendi> "''" region-by-mgiotl Educotion: Sl3,589,000 breok<l01•n orJOM funds dl>ttibuUon . Self-gov: $6,882,000 

. Cousolldatod Tribal Progo<>oos: 

$951,000 

I'Y2010Roquost 

Sl3 5U~ 000 

. Sen. Dlcl<s [D-Woslllngton) sol~ JOM wos • corrm:tect" the p r<vious yeat· tlmJugh a 

bipartisan effort. 

. L<lmml: Restore fOM to S21,4 on!llion 

. NCAI: Supports $24.3 million prupOEod fo1· 

. '"" NationollnJian i><lou:ation A»llclatiom 

C<~lls for pOp<LiaOon ru-oonntsoas to 

r<:t'ormulato program dollars; rep or"' that 

]OM prow<'m' holp lndlon studon"' build 

<elf-ostoom throush various moanosuoh as 

pmvldlna oy•alasso;, r«Un" review, et<. 

Warm Sprmll"' R'"'toro IDM at ~25 million: 

10 M i mpornmt b ocnnse It givO< tr lbos n soy 

inp10bl10><:hools 

. National Indian ~ducotlonA,oolatlon: 

Pro~ram dollars neeol updatln~ bee>use of 

~rowth in Oklah~ma 

Nov'JO N•tioo: Re'''"'' ]OM otS:l4.3 mill1~n to fooror in "'inflat1onat11 oost< o[ 

,,d<litionol snodents;" 50,000 Navojo 

snodent.< '"""""d by ]OM, 

. Chcml<eo Natlo"' montlooL< )OM En P'"';"H 

. Notion•IJOM Aseocionon [Harold 

DUstybL<II): Con!rosssa\'Crl )OM; )OM 

dfottivo b""'""" it is so fiex!bl~ )OM 

ftmd> ""'d to be smbillzcd to avoid midyear ru-•olju,tmcn~ at least 300,000 

rtudents <ovmd by )OM 

SaultS\0. Mario Tribo of Chippewa lndion<o 

lift the funding Frco,o, restore )OM to jl4 

million 

(:OOk lnlot' ]OM fund< ooro ourrlrulultl. 

inoludlngcolrulu<: dl'""'~ po.oltl"" 

corroi•Mn between ]OM !>'tti<ip•ti<n •nd 

GPM. 

. Stletz Tt;be: restore ]OM to $24.3 ml!lon; 

!B3,000 of)OM funds not enough fur 

tMhe"s neeJs. which spon 11 coun~« 

Fond du loo' Continue funding )OM 

be"""'' it addre""" u nique nee<•. 

S uaxin: $21.4 million fur OM 

CITATION 

IA-EDU-25 

Part?, 2, 18, 78, 

92·93, 90·97. 

!45,209.217, 

255-57,340. 

8+1,356.800, 

943, 
29 


712a9.eps

DATE 

2010 

SOURCE AMOUNT REQUESTED 

BIA Budgot FY 2009 Onamd, 513.797.000 [rPA) 

Jus~Hoatlon 

for fY 1011 H 20!0 P.nocte<l: 513.589,000 [TPA) 

"" ros!imony 

ro:FY 201l 

FY ZOll Request: 

$21,.273,000 tot!il 

Edut"Jtion: $JM3*.000 

Solf-Govornanco. $7,074,000 

Consolld•ted Tribal Programs: S 

705,000 

NOTES 

So me in formallon os J>I'O'>'iO "" l"'"''· Doo.< not montion how many srudonl!; 

bonont 

Comm ltteo on Approprlo~o n.< ""I"' ASIA 

Laroy Eclm Hawk about~" futuro of 

)0~1; l'<ho i'law~say.< ho is")ust Slai'Lin~ 

to I'"'" more" oboul the pro~r;,m's 

>1gnifioanco: mcogni•o• thot progr.1m 

dolla rs do not match groWJng student 

po~ulotlon 

Lummi Na~""' $2L4mllllon far)OM 

Warm S~<in~ sz; million for JOM; 

cdtidzes $1~.4 million'"~""'"" forTPA 

in f'\' 2011; '"ll!;"i> )OM can counter 

dropontrall><. 

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30 


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32 

Conclusion 

On behalf of the over 1.0 million Indian children eligible for JOM, NJOMA is elated by the Committee’s speedy consideration of S. 943, and would urge its immediate 

approval. After 25 years of waiting for any action by Congress or the Administration 

to rectify this shameful condition that the JOM program exists today, we are encouraged by today’s hearing and the Committee’s pending approval of this legislation. 

We are hopeful that this Committee and the Senate will take quick action on this 

bill so that the House would have the opportunity to also quickly act on the bill. 

Given the number of tasks that are prescribed in the bill, we pray that all this work 

can be completed and put in place in time for the 2018–2019 school year. To meet 

this proposed schedule, we need this bill enacted and signed by the President as 

soon as possible. 

Thank you. 

The CHAIRMAN. Thank you, Ms. Mann. 

We will now start with five minute rounds of questions. 

My first question is for Mr. Dearman. In regard to S. 943, right 

now, I think the number is 271,884 students as the count from the 

BIE in regard to Johnson-O’Malley total eligible student population. We are anticipating that it could be over 1 million. 

How do you establish the determination of eligible Indian students and how are you going to make sure that you get an accurate 

count? 

Mr. DEARMAN. Thank you for your question, Mr. Chairman. 


712a12.eps
33 

We have already started conversations with the National Johnson-O’Malley Association and talking about how we are going to 

conduct this count. 

One of the things S. 943 will assist us in doing is requiring all 

the contractors actually report current official counts. We have not 

had that up to this point. We definitely need that. 

The other thing is we really have to utilize our tribes because the 

tribal enrollment from each one of our tribes is going to have what 

we are looking for because right now the requirement to receive 

services from the Bureau of Indian Education is you have to be a 

member of a federally-recognized tribe or you have to be one-fourth 

blood quantum. 

Right now, we are looking forward to working with the National 

Johnson-O’Malley Association, NIEA, NCAI and our Department of 

Education. 

The CHAIRMAN. Ms. Mann, I would like some of your thoughts 

as well in terms of how that count should be conducted. 

Ms. MANN. I agree with Mr. Dearman. We have been in talks 

and would like a working group for us to be able to look at how 

we want to continue to count after we get the baseline count 

through like the Census. That is going to give us a starting point. 

Right now we do not have a starting point because it has been 

so long. The last two counts that were done through the Bureau 

were really just an update, so we have no real numbers of what 

we should have except what we can see in the Census. 

At that point, they are showing at least 1 million. All of those 

students could be eligible if they meet the Bureau requirements 

which are, as Mr. Dearman said, enrolled in a federally-recognized 

tribe or at least prove they are one-quarter blood degree. 

Like he said, the tribes are going to be key in getting enrollment 

information for us. I know in some areas the Census numbers may 

even be lower than what they are. A lot of times the Census takers 

are not able to get to some places on the reservations. I know those 

numbers could be lower as well. 

The CHAIRMAN. Mr. Wharton, there is a reserve fund that goes 

with the Klamath Tribe Judgment Fund Act. If the legislation is 

repealed, what happens to the reserve fund? 

Mr. WHARTON. There are four accounts held by the Bureau of Indian Affairs on behalf of the Klamath Tribes. One of them is frequently referred to as the Litigation Account. It is an account that 

was established initially in 1958 to pay for the cost of litigation and 

$350,000 of tribal funds was put into that account. 

As judgments were entered and paid out, the monies from those 

judgments were set aside to continue that $350,000 in the account. 

The money in the account now is about $397,000. That is the 

$350,000 plus the interest it has accrued over time. 

With the repeal of this Act, it is my belief, based on my reading 

of 1401, that having been distributed under the Act, the judgment 

that was the source of this, these funds would then be eligible for 

the tribe to determine for themselves how it would be spent. 

As Mr. Dearman has indicated, we need to work with the Office 

of the Special Trustee to make sure we come to an agreement 

about how those accounts can be managed. 

34 

The CHAIRMAN. Chief Brainard, the bill, S. 1223, would help your 

tribe in securing title insurance and completing your fee transactions. How does it help you accomplish that? 

Mr. BRAINARD. By clarifying what is required from the BIA or 

not required so the title companies and the financial institutions 

are clear about how it is supposed to operate. 

The CHAIRMAN. Senator Heitkamp? 

Senator HEITKAMP. Mr. Chairman, I will defer to my colleagues 

to the left. 

STATEMENT OF HON. CATHERINE CORTEZ MASTO, 

U.S. SENATOR FROM NEVADA 

Senator CORTEZ MASTO. Thank you. 

Mr. Dearman, help me understand this. I am looking at your testimony and was listening earlier. 

If I am correct, the student data count is taken from 1995 which 

identified 271,884 eligible Indian students. However, we know that 

in 2012, there was a count identifying more, 321,273, and then 

again in 2014, the count resulted in the final student count of 

341,495. 

We know there is more than the 1995 numbers but we also 

know, according to what you are saying, that not all the JOM contractors submitted data. 

As a result of that, we are going back to 1995 eligibility numbers 

even though we know it is less? Is that what I am hearing? 

Mr. DEARMAN. Yes. The counts from 2012 and 2014 could not be 

verified because not all the contractors reported. 

Senator CORTEZ MASTO. The 1995 numbers were verified? 

Mr. DEARMAN. That was the last official count that is on record. 

Senator CORTEZ MASTO. What do you determine is verification? 

Mr. DEARMAN. I would have to go back, Senator, and ask or find 

out. I can provide to you in writing what the process was in 1995. 

Senator CORTEZ MASTO. I am curious why is it taking so long for 

this to be updated, for the information to be transparent, for the 

verification to occur? 

What is the holdup, number one? Number two, once we hopefully 

pass this bill, how can it be verified that you will continue to provide this updated information if you cannot do it now? 

Mr. DEARMAN. By partnering with the National JohnsonO’Malley Center, our tribes and our contractors, actually by improving communications with our contractors, and creating the 

partnerships that we have created, we feel that is going to help us 

bring the JOM count up to where we need to get it and get the assistance we need. 

I cannot really answer for what happened in 2012 or 2014, but 

I know we are looking forward to moving forward to collecting and 

getting the official counts coming up. 

Senator CORTEZ MASTO. Can you guarantee to us that moving 

forward you will do just that? 

Mr. DEARMAN. I can guarantee we are going to do everything we 

can to get that count up. The tribes are going to be a big part of 

the count and working with the tribes to get tribal enrollments, the 

U.S. Census, and cross checking the student data that we receive 

to make sure they are really eligible for services. 

35 

Senator CORTEZ MASTO. Without the hearing today, would we 

even know this updated data that has existed because, to my understanding, there is no transparency other than what you just told 

us? 

Mr. DEARMAN. I believe we have been submitting some answers 

when we receive requests. 

Senator CORTEZ MASTO. But there is nothing on the website, 

there is nothing out there that if the tribes want that information, 

parents want that information, nobody has any specific data on the 

counts you have done and the available numbers, is that correct? 

Mr. DEARMAN. To my knowledge, it is not on our website right 

now, but we are working on getting our website to where it is more 

efficient for the public. 

Senator CORTEZ MASTO. Does BIE have any other student data 

or student outcome-related data, for example, graduation rate 

trends, absenteeism trends in BIE schools and so forth that you 

can share with the Committee? 

Mr. DEARMAN. That is a great question. Since taking office in November, we have been behind in student data for three years. Since 

we have been there, we have actually come together and worked 

hard and are getting caught up on our student data. 

One of the things we have always been hammered with or talked 

about is our low graduation rate. Looking at and concentrating on 

our data, we are showing the 2014–2015 graduation rate, just because we have started concentrating on data and really correcting 

how we record the data at the school level, right now it is 67.49 

percent. 

The 2015–2016 graduation rate is showing to be approximately 

83 percent. We are starting to focus on getting back to the schools 

and working with how we are recording the data. We have to do 

a better job of giving our schools a list of what we are expecting 

to be recorded in our system. 

Senator CORTEZ MASTO. Do you have a plan to provide that data 

on a regular basis, whether to the Committee and/or to anyone else 

asking for that data and information? 

Mr. DEARMAN. Absolutely. We are currently working on a communications plan. Right now, our website needs to be revamped. 

That will be a good place where we can share our data, announcements and anything else we have going on with BIE. 

Senator CORTEZ MASTO. Thank you. I appreciate the conversation today. 

With respect to the other bills, I am supportive. I think what I 

have heard today and in the conversations I have had, it makes 

sense to me that we should be doing everything we can to pass 

those bills. 

Let me just say I do not understand why our students in Indian 

Country deserve anything less than any other student in our 

States. It just does not make sense to me. 

Why is this happening? We need to do a better job. We need to 

do a better job of calculating that data, verifying it, not delaying 

it, and making sure we are bringing the necessary resources to the 

students who are there. 

I will be watching. I look forward to working with you to help 

collect this data. 

36 

Thank you. 

The CHAIRMAN. Senator Daines. 

STATEMENT OF HON. STEVE DAINES, 

U.S. SENATOR FROM MONTANA 

Senator DAINES. Thank you, Mr. Chairman and Ranking Member Heitkamp. 

Coming from a State that probably has a strong Indian Country 

heritage, I would say that providing our Native students with a 

strong education is absolutely an essential part of the U.S. trust responsibility. 

In Montana, our 12 federally-recognized tribes very much benefit 

from the Johnson-O’Malley Program which is why I was pleased to 

join Senators Heitkamp and Lankford in introducing the JohnsonO’Malley Supplemental Indian Education Program Modernization 

Act. This legislation will help ensure full participation of all eligible 

Indian students in this program which addresses their unique academic as well as cultural needs. 

In 2012 and 2014, and most recently in 2017, Congress approved 

Interior appropriations and was directing Interior and the BIE to 

update and report a count of Indian students eligible for the Johnson-O’Malley Program. 

Mr. Dearman, to your knowledge, has BIA presented the reports 

suggested in the Interior appropriations bills? 

Mr. DEARMAN. To my knowledge, right now there have been no 

reports submitted, but we are working on completing the reports. 

We will start getting the reports turned in on time. Since becoming 

director, one thing we are working on is our responsiveness. 

Senator DAINES. They have set the bar pretty low in the past, so 

I am sure you can beat that. The question is, without having the 

updated counts, what is the numerical count that BIE currently 

uses for Johnson-O’Malley? 

Mr. DEARMAN. The 1995 official count of 271,884 students. 

Senator DAINES. That is deplorable. 

Mr. DEARMAN. It is very low. 

Senator DAINES. It is stunning. Can you imagine anyone running 

a business, running a program, using data from 1995 as the best 

data? 

Let me ask this question. Are you aware how many students the 

National Congress of American Indians and the National Indian 

Education Association see as eligible for Johnson-O’Malley based 

on Census data? 

Mr. DEARMAN. No, Senator, I am not. 

Senator DAINES. The answer is 798,486 versus the number you 

gave me of 271,884. I have each of these organizations’ documents 

with me here today that I can provide. 

Roughly 800,000 versus 272,000 represents a serious gap between students being served and those who are supposed to be 

served. Do you believe the legislation that Senators Heitkamp and 

Lankford have proposed will help fix this disparity and result in a 

more accurate number of students served? 

Mr. DEARMAN. Yes, Senator, I do. That is why the department 

supports S. 943. 

Senator DAINES. I appreciate the support. 

37 

In what other ways do you see this legislation as beneficial to the 

education of Native American students? 

Mr. DEARMAN. The biggest part I have seen that is really going 

to help us as far as continuing to update the account is the reporting requirement. 

As I stated in my testimony, the 2012 and 2014 counts could not 

be verified because not all of the contractors reported. By law, they 

did not have to. S. 943 requires them to report. 

Senator DAINES. So we are 22 years late at the moment. First 

of all, I appreciate your comments. I appreciate your commitment 

to getting this right. My request would be that we actually see results. Washington, D.C. is famous for bragging about activity and 

will brag about activity in a press release so folks back home think 

something is going on. 

The bottom line is, it is the result that ultimately matters. The 

activities can be important, but that is a means to an end, and that 

is actually getting the result and getting the updated numbers so 

we can help the students out there in Indian Country. 

Thank you for BIE’s strong support of this legislation. I very 

much look forward to getting this legislation enacted into law. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Senator Franken. 

STATEMENT OF HON. AL FRANKEN, 

U.S. SENATOR FROM MINNESOTA 

Senator FRANKEN. Thank you, Mr. Chairman. 

I am going to support all three pieces of legislation, the JohnsonO’Malley piece and the two Oregon pieces. 

Director Dearman, I just wanted to ask about something else but 

something very central to education in Indian Country. Indian 

Country has a shortage of qualified educators. We have to support 

programs to get more teachers and principals to tribal communities. 

Would you speak to some of the specific challenges that Native 

communities face regarding teacher shortages and attracting educators to Indian Country? 

Mr. DEARMAN. Challenges, Senator? 

Senator FRANKEN. Challenges. 

Mr. DEARMAN. Isolation, drug use, abuse, low economic status, 

there are a lot of challenges. 

Senator FRANKEN. Housing? 

Mr. DEARMAN. Yes, housing. May I address some of the things 

we are doing to combat that? 

Senator FRANKEN. Sure. 

Mr. DEARMAN. Right now, human resources came under BIE on 

January 8, 2017. That has given us control of how we advertise. 

We have actually amended our hiring practices to match the States 

in which our schools reside because we had such stringent hiring 

qualifications that it was easier to go down the road and get a job 

in a public school than it was to get a job within the Bureau of Indian Education. We are making advertisements and qualifications 

match the States in which our schools reside. 

Also, looking at the way we advertise. Coming out of education, 

North Eastern State University in Tahlequah, Oklahoma, I did not 

38 

know about BIE because I did not go to the government system to 

look for jobs. I went to teacher websites. We are really looking at 

how we advertise, where we advertise and also having outreach to 

universities that have teacher education programs. 

Senator FRANKEN. Senator Tester, Vice Chairman Udall and I 

have a bill called the Native Educator Support and Training Act, 

the NEST Act. This bill would provide new scholarships, Federal 

student loan forgiveness, teacher development courses to prospective or existing educators or American Indians who commit to 

teaching at schools that serve high populations of Native students 

or both and schools that have both BIE and local public schools 

that have a high population. 

I think it is critical that we find ways to recruit and support 

teachers who come to Indian Country, particularly because of those 

challenges and because of the shortages. 

I hope that my colleagues on this Committee can continue to, I 

know Senator Heitkamp and I have done this, talk to our caucus. 

We who serve on the Indian Affairs Committee get testimony all 

the time and understand the challenges that face Indian Country 

in ways that our colleagues do not, obviously. 

I think given the special nature of these challenges and also our 

obligations, this is one area where education is so key and that is 

if you have teacher shortages, if we can make it easier to teach in 

Indian Country, given all the challenges. 

The challenges are if you are a teacher and want to bring your 

spouse and family, your spouse is going to ask about housing. If 

you have kids, they are going to ask about the school there. If they 

have health care issues, they are going to ask about the health care 

there. 

All of these tend to be challenges to recruiting folks in any field. 

We hear it on Indian health and we hear it on everything. 

I just want to urge my colleagues to be cognizant that sometimes 

in our caucuses we are the ones that really should be carrying this 

message. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Senator Lankford. 

Senator LANKFORD. Thank you, Mr. Chairman. 

Tony, it is good to see you again. It is good to have a good Oklahoman taking care of that. I would assume that good Oklahoman 

is going to fix everything and be able to get this all done. We look 

forward to getting this resolved as well in the days ahead. 

Can you help me understand what has prevented BIE from updating the Johnson-O’Malley count for the past 21 years? 

Mr. DEARMAN. Right now, being unable to verify the count and 

not having a bill like S. 943 to require the contractors to actually 

report the eligible students they have in their programs. 

Senator LANKFORD. Do you think this bill really solves the issue? 

My concern is that two years from now, I do not want us to come 

back and say actually we needed something different than what we 

have. Do you feel confident this will actually get us up to date? 

Mr. DEARMAN. From what I have seen right now, I think this is 

a great start. We did have some recommendations in our testimony 

and would love to sit down with you. 

39 

Senator LANKFORD. I appreciate the recommendations as well. 

There were a lot of technical aspects. What I like about your recommendations is you are thinking through implementation, that 

when we implement it, these are the challenges we are going to 

have, so we actually have to get this stuff fixed. To me, that helps 

us make sure we actually get this done and at the very last 

minute, there is not a pushback to say it will not work because of 

this. 

The input you gave today plus any other input you have does 

nothing but help us to be able to get the bill right. It improves our 

chances that at the end everyone is going to say it has been looked 

over by everyone. We think this is going to be effective at the end 

of it. 

The GAO, as you know, has listed Indian education on their high 

risk list. Give me some background now on what is happening behind the scenes to be able to get it off the list and where you are 

trying to prioritize? 

Mr. DEARMAN. As I stated and as I testified the last time I was 

here, that has become a priority of ours, not only in BIE but in Indian Affairs. We have created committees and have been meeting 

to address the GAO findings. We actually have a meeting Monday 

with GAO because, as we said in the testimony, it is a road map 

to make us better. We need to be sitting at the table with them 

to improve our system. It is still a priority. 

Senator LANKFORD. It is a significant priority. It is tough for the 

first time for GAO to be able to look at. They will stay on it and 

evaluate progress which is helpful and what we asked GAO to do 

to be able to help us in that journey. 

They key things they will want to see and we will want to see 

is progress, to say this has been identified and here is the clear 

problem. Here are the five steps it will take to be able to solve this. 

We are working on step 1 right now of the five. 

If you can help us with that, within 15 years, we can get a turnaround. I would love to way it is within 15 months. We all know 

it is not going to be 15 months. There are significant issues. 

If you can help us identify here what is the problem, there is the 

place we want to go, here are the five steps to get there, that will 

help GAO in the process and their oversight and that will help us 

as well. Quite frankly, it will help a lot of Native American students. 

Mr. DEARMAN. We would be happy to provide you with an update 

of where we are since the last testimony. 

Senator LANKFORD. That would be terrific. I do not want to take 

you off task of actually resolving it, but as you have updates, we 

would love to be able to get them as well. 

Mr. DEARMAN. Okay. 

Senator LANKFORD. Ms. Mann, thanks for being here as well and 

for the work you have done. 

Are there other ways to reform Johnson-O’Malley you would recommend that are not included in this bill that you would specifically recommend to us? 

Ms. MANN. Thank you, Senator. 

40 

We have reviewed this bill over and over. I think all the suggestions we have in here are what we think is going to help the program. 

We hope to have a working group afterwards with NIEA, NCAI 

and NEA, TEDNA, several of those groups, as well as the BIE, to 

look at Federal regulations and the program in general to make 

sure we are doing everything we can to get it restarted pretty 

much so that we have regular counts, and that we know how the 

funding formulas are going to turn out. There are several different 

things we would like to do. 

By doing it with this group, we feel we will hit most of Indian 

Country throughout these working meetings. 

Senator LANKFORD. Terrific. Any recommendations you can get 

back to me from those conversations would be appreciated very 

much. That insight filtered to myself, Senators Heitkamp, Udall, 

Daines or any of us working on this bill all the time, we would be 

glad to be able to receive that. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Senator Heitkamp. 

Senator HEITKAMP. Thank you, Mr. Chairman. 

Mr. Dearman, you are the person sitting in the chair representing years and years and years of problems, programmatic 

problems. It is really hard to get a level of accountability on this 

side because to us it seems to be unfair to put this back on you. 

Can you tell me, in your judgment, what is the percentage high 

school graduation rate of Native American children? 

Mr. DEARMAN. At this time, Senator Heitkamp, I really do not 

have that information but I can tell you we are working hard to 

get that because BIE needs to be a data-driven, decision-making organization based on our student data. 

Senator HEITKAMP. What is the average adverse childhood experience of Native American children? We do not know, do we? We 

have not calibrated exact numbers on childhood trauma and what 

that experience looks like for Native children, right? 

Mr. DEARMAN. We have started looking at our data with that, 

again, really looking at our system of where this data has been recorded, and if it has been recorded. We are starting to address that. 

Senator HEITKAMP. What is the rate of asthma and respiratory 

problems because of environmental conditions, including black 

mold, in Native American students’ homes? 

Mr. DEARMAN. We do not have that data. 

Senator HEITKAMP. What is the rate of incarceration of Native 

American students either in juvenile detention facilities, Federal 

facilities, if in fact the activity is undertaken, or in State facilities? 

Mr. DEARMAN. Senator Heitkamp, we would love to work with 

you on priorities and things you feel we need to be looking at as 

well. 

Senator HEITKAMP. I want to make a point about Senator 

Franken’s comments. We began this process in our caucus because 

our frustration is, we hear the concerns and we hear the problems. 

I am not suggesting that you are not sympathetic or even appalled by what we know instinctively, but not statistically, about 

the conditions of Native American students in this country. It is extraordinarily hard without data to drive any kind of resource alloVerDate Mar 15 2010 11:14 Sep 25, 2017 Jkt 026823 PO 00000 Frm 00044 Fmt 6633 Sfmt 6601 S:\DOCS\26823.TXT JACK
41 

cation or resource decision-making or innovation. As a result, we 

end up with this incredible lack of coordination and lack of real 

basic strategy on changing outcomes. 

It is the reason why Senator Murkowski and I introduced the 

Commission on the Status of Native American Children. We are in 

the process of trying to get that commission established. It has 

been funded. It is a matter of getting it up and working. 

We need your help in these counts. We cannot take the excuse 

that we are trying anymore. We have to know what they are because I think eventually when we come down with true data, we, 

in this country, should be ashamed of the conditions we have allowed Native American students to experience in their physical 

plant, their educational attainment, their vocabulary when they 

come in, the lack of support, and the lack of technology. 

It is all there but yet we expect different outcomes. We are not 

going to get that if we do not know what the count is and what 

we need to do. It is not just failure in Indian schools. It is failure 

in schools in Grand Forks, North Dakota, Fargo, North Dakota, 

Minot, North Dakota, and Bismarck, North Dakota. You will see 

higher rates of Title I students that are Native American students 

in those schools. You would agree, right? 

The Commission on Civil Rights, in the 1990s, I think did an actual report that looked at over representation of Native American 

students in special education programs. 

There is an urgency to this because we need data and we need 

this count. We cannot let this opportunity pass. We decided to give 

everybody the benefit of the doubt, press the reset button and start 

counting. 

Start working with Ms. Mann to make sure that you get the 

count and make sure she is getting the resources. You cannot get 

resources without knowing where to deploy them and where the 

count is. 

This may seem like a bean-counting technical bill but it is the 

foundational piece for change for Native American students. We 

are committed here on this Committee and we are committed to expanding our knowledge among our colleagues to continue to build 

more support but we need the institutions at the level of administration to work with us to get those numbers. 

I want to thank you for coming and letting me vent a little bit 

about where these problems are. Just know, I am not letting go of 

this. I do not think James is going to let go. We are not going to 

let go of this. We are going to be a dog with the bone. 

There is going to be accountability and eventually, we are going 

to have to call out people when they are not performing. 

Good luck. Let us know. Thank you for your support of the legislation. I think the invitation that Senator Lankford just gave both 

of you to rethink whether this is good enough or is there more is 

a good one. 

We are committed to working to get this over to the other side. 

We have great partnerships on the other side. We should have been 

able to do it last Congress but did not. We are going to get it done 

this Congress but it had better be right. 

42 

It had better be complied with and we had better have answers 

in two years on how many Native American students there are and 

what are the educational challenges of those students. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Senator Cortez Masto, did you have other questions? 

Senator CORTEZ MASTO. No, other than, Mr. Dearman, are you 

sure you want this new job? 

Let me just say this. We vented and we have frustrations. I 

would imagine you do as well. I agree with my colleagues that 

whatever we can do to assist you, let us know. Our goal, I am sure, 

is the same as yours. I would imagine you have similar frustrations 

with what you are trying to do and achieve to the benefit of Native 

American communities. Please do not hesitate to reach out. 

Thank you. 

The CHAIRMAN. With that, if there are no more questions today, 

I want to remind members that they may submit follow-up questions for the record. The hearing record will be open for two weeks. 

Thank you again to our witnesses. We appreciate you being here. 

I also want to take a moment to say thank you to Amanda Kelly, 

who served as Clerk of this Committee not once, but twice. I wish 

her the best of luck in her new role at the Ag Committee where 

we will be seeing her, so you cannot escape because we are both 

on the Ag Committee as well. 

Thanks to our witnesses and to the Senators. 

We are adjourned. 

[Whereupon, at 3:43 p.m., the Committee was adjourned.] 

(43) 

A P P E N D I X 

PREPARED STATEMENT OF HON. RUSSELL BEGAYE, PRESIDENT, NAVAJO NATION

As President of the Navajo Nation, I am submitting the following written testimony to the Senate Committee on Indian Affairs (SCIA) in response to the July 12, 

2017 legislative hearing on the Senate Bill 943 ‘‘Johnson-O’Malley Supplemental Indian Education Program Modernization Act.’’ 

Background 

The Navajo Nation is the largest land based Indian tribe in the United States 

spanning over 27,000 square miles across three states: Arizona, New Mexico, and 

Utah. We have over 300,000 enrolled tribal members, with nearly 180,000 members 

living on the Navajo Nation. 

The Navajo Nation has been a proactive stakeholder in the education of our children. Through the Navajo Sovereignty in Education Act of 2005, the Department 

of Dine ́ Education (DODE) and the Navajo Nation Board of Education (NNBOE) 

were created ‘‘to promote and foster lifelong learning for the Navajo people, and to 

protect the culture integrity and sovereignty of the Nation.’’ Currently, the Navajo 

Nation contracts with the Bureau of Indian Education (BIE) to provide Johnson 

O’Malley (JOM) services through 27 subcontracts serving over 41,000 students annually. 

The Johnson O’Malley (JOM) program has proven to be an effective and essential 

program for Navajo students attending public school and contributes to the Nation’s 

educational goals ‘‘to protect the culture’’ of the Navajo Nation. During the 2014– 

2015 School Year, JOM funding provided for a variety of culturally based programs 

including Navajo language classes, Navajo Knowledge Bowls, Bilingual Showcase, 

and Navajo Spelling. 

Concerns 

The Navajo Nation is greatly concerned with the poor administration and technical assistance provided by the BIE in regards to the JOM program. As discussed 

during the July 12, 2017 hearing, an accurate student count is critical for JOM program administration, budget justification, and the delivery of student services. Since 

BIE has struggled to effectively update the student count report, tribes and students 

have been receiving funding according to outdated students count report numbers 

from 1995. The JOM program has been underfunded for years, forcing JOM programs to operate on meager budgets. 

Current Student Eligibility 

During the 114th Congress, Senator Heitkamp introduced a similar bill (S. 2842) 

to address the outdated JOM student count. Last year, during our initial review of 

S. 2842, the Navajo Nation Washington Office (NNWO) requested clarification from 

BIE regarding the student eligibility definition which states: 

‘‘Indian students, from age 3 years through grade(s) 12, except those who are 

enrolled in Bureau or sectarian operated schools, shall be eligible for benefits 

provided by a contract pursuant to this part if they are 1/4 or more degree Indian blood and recognized by the Secretary as being eligible for Bureau services.’’ 

(25 CFR 273.12) 

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

definitions: 

‘‘Eligible American Indian and Alaska Native students are enrolled members of 

a federally recognized tribe or at least one-fourth or more degree of Indian blood 

descendant of a member of a federally recognized Indian tribal government eligible for services from the Bureau.’’ (BIE website) 

‘‘American Indians age 3 through grade 12 who are enrolled in public schools 

are eligible if they are at least one fourth degree of Indian blood and recognized 

44 

by the Secretary of Interior as eligible for BIE services.’’ (Dear Tribal Leader 

Letter, July 24, 2014) 

‘‘American Indians age 3 through grade 12 who are enrolled in public schools 

are eligible if they are a member of a tribe or at least one fourth degree of Indian blood and recognized by the Secretary of Interior as eligible for BIE services.’’ (Dear Tribal Leader Letter, August 19, 2014) 

‘‘American Indians age 3 through grade(s) 12 who are enrolled in public schools 

are eligible if they are either a member of a tribe or at least one fourth degree 

of Indian blood and also recognized by the Secretary of Interior as eligible for 

BIE services.’’ (Dear Tribal Leader Letter, December 2, 2014) 

Suggestions for Modernization of Student Eligibility Definition 

The Navajo Nation supports the overall goal of providing clarity within the JOM 

program, especially in regards to student eligibility. However, the proposed legislation directs DOI to conduct an initial determination of eligible students within existing contracts using multiple sources of data. We are concerned that using the various data sources with varying definitions of ‘‘American Indian/Alaska Native’’ may 

result in an inflated number of eligible students, while the future definition of student eligibility will not be finalized until rulemaking is conducted and may not align 

with data source definitions. To avoid potential duplicative actions, we suggest that 

the rulemaking be conducted prior to the initial determination reports for existing 

contracting parties and new applicants. 

The use of different eligibility definitions is not only problematic in conducting 

student counts, but it could also limit services to otherwise potentially eligible students. The Navajo Nation currently administers the JOM program through 27 subcontracts using the regulatory student eligibility definition: 

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

For the Navajo Nation, the use of a less stringent definition, such as the definition used within the Elementary and Secondary Education Act (20 USC 7491), 

would result in a significantly higher number of eligible students. 

More Students, More Funding 

An updated student count and revision of the student eligibility definition will undoubtedly result in an increased number of eligible students. However, without an 

increase in funding for the JOM program for newly identified students, the efforts 

of Congress, the Bureau of Indian Education, and Tribes will be misspent. We 

strongly urge Congress to properly reinvest in the JOM program to fully serve AI/ 

AN students attending public school. 

Conclusion 

In conclusion, we would like to thank the Senate Committee on Indian Affairs for 

the opportunity to submit testimony and feedback on S. 943. As it is the goal of the 

Navajo Nation to ensure delivery of quality education for our Navajo students, we 

appreciate Senators Heitkamp, Daines, and Lankford’s efforts to improve Indian 

education through the Johnson-O’Malley program. 

PREPARED STATEMENT OF HON. DONALD C. GENTRY, CHAIRMAN, KLAMATH TRIBES

Chairman Hoeven, Vice Chairman Udall and members of the Senate Committee 

on Indian Affairs. My name is Donald C. Gentry. I am the Chairman of the Klamath 

Tribes. This testimony is submitted in support of S. 1223 which will repeal The 

Klamath Tribe: Judgment Fund Act of 1965, Pub. L. 89–224 (The Judgment Fund 

Act). The Judgment Fund Act seriously compromises the Klamath Tribes sovereignty and mandates distribution of tribal funds in a manner detrimental to the 

best interests of the Tribes and its members. It is the last remaining vestige of the 

disastrous and ill-considered legislation that in 1954 terminated the government-togovernment relationship between the Klamath Tribes and the United States. That 

relationship was restored on Aug. 27, 1986 by Pub. L. 99–398, by the Klamath 

Tribe: Restoration of Federal Supervision Act. 

I. The Historical Context of the Judgment Fund Act 

The Klamath and Modoc Tribes and the Yahooskin Band of Snake Indians (now 

Klamath Tribes) had their government-to-government status as a recognized Tribe 

terminated in 1954 by the Klamath Tribe: Termination of Federal Supervision Act, 

(Pub. L. 86–40; 68 Stat. 718). This unilateral act of the United States Congress was 

45 

taken without the consent or support of the Klamath Tribal Government. The purpose of the Act was to terminate Federal supervision over the trust and restricted 

property of the Tribe, and to remove from individual members their status as members of a ‘‘recognized’’ tribe. As a result, the lands and other tribal property were 

monetized and distributed to individual members of the Klamath Tribes. In order 

to accomplish this a ‘‘final roll’’ of the members of the Tribe as of midnight August 

13, 1954 was compiled (the 1954 enrollees). There were 2133 members on that roll. 

The more complicated process of determining which of the members were the socalled ‘‘withdrawn members’’ and which were the so-called ‘‘remaining members’’ 

isn’t germane to the consideration of S. 1223. 

In addition to the reservation property of over 850,000 acres of prime timber and 

ranch lands, the Tribe also had pending before the now defunct Indian Claims Commission (ICC) lawsuits against the United States seeking compensation for the mismanagement or misappropriation of tribal assets; primarily timber and ranch lands. 

In the 1950’s, and until 1965, claims before the ICC and later the Court of Federal 

Claims which resulted in judgments against the United States were not paid to the 

Klamath Tribe until authorized and appropriated by Congress. As a result, Congress determined that it would be more efficient to adopt a ‘‘Judgment Fund Distribution Act’’ that would allow for any funds secured as a result of judgment 

against the United States and deposited in the United States Treasury to the credit 

of the Klamath Tribe to be distributed in accord with the specific requirements of 

that Act. Thus, Congress adopted the Judgment Fund Act on October 1, 1965. 

The Judgment Fund Act provided for distribution of funds appropriated in satisfaction of judgments obtained by the Tribes, and all other funds deposited in the 

United States Treasury to the credit of the Klamath Tribes, to the 2133 people on 

the Final Roll. (Sec 4 of Pub. L. 89–224). All funds deposited in the Treasury regardless of the source (e.g., payments for rights-of-way, trespass damages, or other revenues, together with any interest accrued) were included in the application of the 

Act. 

II. The Problem With the Judgment Fund Act 

The Judgment Fund Act’s limitation on distribution of funds to persons on the 

‘‘final roll’’, or to their heirs or legatees began to have unintended and deleterious 

results. As time went on, the 2133 members on the final roll began to pass on. 

Under the terms of the Judgment Fund Act, their share passed to their heirs or 

legatees. (Sec 2 of Pub. L. 89–224). Sometimes surviving spouses, sometimes children or other surviving relatives. Many of the people to whom shares passed were 

not Klamath tribal members, or even of Native American descent. As a result, distribution pursuant to the Judgement Fund Act has four impacts detrimental to the 

Tribes. 

1. The Tribes have no ability to determine how tribal funds can be allocated 

to members or other tribal priorities. Indeed, many tribal members are ineligible to receive any part of the distribution of such funds, and the Tribes cannot designate any funds for general tribal benefit or development. 

2. Because of inter-marriage with non-members the distribution of funds under 

the Act result in distribution of significant amounts of tribal funds to nonIndians and other non-members of the Tribes. 

3. Distribution to the living 1954 enrollees, or their current heirs or legatees, 

requires a complicated process of identification and certification of each individual, necessitating an extraordinarily lengthy and extremely expensive 

process. The costs for distribution are deducted from the available funds, 

thus significantly reducing funds available for distribution. 

4. Should there be funds in the account which the Secretary of the Interior determines are insufficient to justify further distribution—which could be substantial given the extraordinary cost of distribution—those funds must under 

the Act be returned to the Treasury of the United States; not held for the 

benefit of the Tribes. 

The Judgment Fund Act did not contemplate the August 27, 1986 Klamath Tribe: 

Restoration of Federal Supervision Act, Pub. L. 99–398, which restored the government-to-government relationship between the Tribes and the United States. Restoration in part reinitiated the enrollment of tribal members born after the compilation of the 1954 Final Roll. It also reinvigorated the Klamath Tribes’ Government 

which manages the affairs of the Tribes. Despite the restoration of many tribal powers the Judgment Fund Act disallows any tribal determination over the distribution 

of funds in the United States Treasury for the benefit of the Tribes or any members 

enrolled after August 13, 1954. 

46 

III. The Effect Of Repeal 

Repeal of the Judgment Fund Act would resolve these concerns and allow the 

Tribes to determine the best use of funds presently in trust accounts for the benefit 

of the Klamath Tribes. In the absence of the Judgment Fund Act future distributions of funds appropriated in satisfaction of judgments from the United States 

Court of Federal Claims—there are no further claims before the ICC—would be 

made pursuant to the Indian Tribal Distribution of Judgment Funds Use and Distribution Act of October 19, 1973, 25 U.S.C. § 1401 (87 Stat. 466). That Act by its 

terms applies to any ‘‘Indian Tribe’’, which includes the Klamath Tribes. It is presently unavailable to the Klamath Tribes because the 1965 Judgment Fund Act preempts its application. 

IV. Conclusion 

The repeal of this last vestige of the disastrous and ill-considered Termination Act 

of 1954 would be a welcome and necessary next step in respecting the sovereignty 

of the Tribes and returning the Klamath people to their former robust self-sufficiency. 

JOINT PREPARED STATEMENT OF JAMES PARRISH, EXECUTIVE DIRECTOR OF EDUCATION AND SHANE HADDOCK, DIRECTOR OF JOM. CHOCTAW NATION OF OKLAHOMA

Halito, Chairman Hoeven and members of the Senate Committee on Indian Affairs: 

Thank you for holding a hearing to consider S. 943, a bill that instructs the U.S. 

Department of Interior to conduct an accurate count of Native American students 

in an effort to update formula allocations under the Johnson-O’Malley Act (JOM). 

JOM programming is vital to the continuation and success of public school systems 

within the Choctaw Nation’s treaty territory. An updated student count is long overdue. 

We applaud the Senate’s leadership in this endeavor and wholeheartedly offer our 

support for passage of S. 943. The Choctaw Nation of Oklahoma welcomes this opportunity from your committee to provide comments on the importance of JOM student count and programming for Choctaw and native students. 

Currently, there are 85 public school districts within the Choctaw Nation’s treaty 

territory in southeastern Oklahoma. Of these school districts, 74 have JOM programs, with 12,885 verified JOM students. While the vast majority of these students 

are Choctaw citizens, 3,161 students are from approximately 80 other federally recognized tribal nations. Nonetheless, the Choctaw Nation supports all of these native 

students through our JOM programming. 

Our school districts especially appreciate the flexibility of JOM programming and 

utilize this funding in many ways. One primary use is providing school supplies to 

Native American students. But this hallmark federal program is much more than 

just school supplies. JOM makes a difference for Native American students by providing a funding source that enhances Native American students’ educational opportunities and fills in gaps that school districts cannot fill themselves. For example, 

JOM funding has supported a number of efforts ranging from increasing library 

media to providing supplemental teacher salaries, motivational awards, and other 

incentives. For some students, JOM funds provide a way to take ACT and SAT 

tests, help cover the expense of attending college and career events, and pay for 

dues and fees attached to almost all student extracurricular activities. 

One especially important use of JOM funding is connecting native youth to their 

culture. Choctaw Nation utilizes JOM funds to cover the cost of Choctaw language 

tutors and teachers, as well as providing technology to broadcast language classes 

into classrooms around our expansive treaty territory. Choctaw Nation also uses 

JOM funding to cover the cost of providing cultural education events and activities 

such as guest speakers, tribal dancers, traditional crafts, and even traditional 

meals. These items may not seem like much to some, but for many Native American 

families in Oklahoma’s Indian Country, JOM is the only way their children will get 

a chance at these opportunities. 

When the student count was frozen during the 1994–1995 school year, Choctaw 

Nation’s student count was 7,395. We have grown at an average of 275 students per 

year for the past 20 years with no additional funding to service these students. Before the student count freeze, per pupil funding was $125. Now it is only at $65. 

Due to state budget cuts and increasing demands on public schools’ funding, JOM 

funding is needed now more than ever. As public schools in Oklahoma grasp onto 

every dollar they have, programs related to STEM, art, athletics, and agriculture 

47 

are being discontinued for school districts to just stay within their annual budget 

as they brace for more state funding cuts. 

Adjusting the student count is an important step to improving JOM, but it is just 

the first step. With your leadership, Congress can implement improvements to go 

even beyond adjusting the student count by restoring JOM funding to $125 per 

pupil. An increase in JOM funding will allow Native American students to thrive 

in public schools through their partnerships with Choctaw Nation and other tribal 

nations. The JOM Program has a mission to meet educational needs of Native 

American students as they develop into successful, healthy, self-sufficient men and 

women. The passage of S. 943 would be an important step in continuing this mission. 

The Choctaw Nation once again is grateful for this opportunity provided by Chairman Hoeven and the U.S. Senate Committee on Indian Affairs to provide our 

thoughts on the importance of S. 943 and how we utilize JOM programming in partnerships with public school districts to serve our youth. We fully support the passage of S. 943 and thank you for your leadership and support of Native American 

education. Please reach out to the Choctaw Nation Department of Education if we 

can provide any additional information as you consider this legislation. 

Dear Chairman Hoeven and Vice Chairman Udall: 

On behalf of the Leech Lake Band of Ojibwe, I am writing to express our support 

for the authorization of the Johnson-O’Malley Supplemental Indian Education Program Modernization Act (S. 943). This legislative effort builds upon Congress’ focus 

on supporting Native education in the 21st century. S. 943 is a step in the right 

direction to honor the fiduciary trust obligation the federal government has with 

tribes to provide parity in access and equal resources to Native education. 

The Johnson-O’Malley (JOM) program is utilized to meet specialized and unique 

educational needs of Indian students attending public and some tribal schools 

through the use of supplemental education programs. Such supplemental programs 

are designed at the local level under the purview of a local Indian Education Committee. Eligible JOM contract applicants are states, school districts, tribes, and tribal organizations. 

The Leech Lake Band of Ojibwe is particularly supportive of the push to update 

the JOM eligible student count and to then move towards reconciling the per student allocation and funding afforded the program. For nearly 25 years and through 

several Administrations, the Department of Interior and BIE have not attempted to 

finalize a count of the numbers of Indian students currently using or the total pool 

of eligible Indian students for JOM services. Also over this period, the JOM program 

has been all but frozen: no updated student count, no update of the program rules, 

and no real increase in funding to meet the real-time growth in the eligible population as noted from data collected for other Indian education activities and the 

2010 Census. 

After 25 years of waiting for any action by Congress or the Administration to rectify the unacceptable conditions that the JOM program must exist under today, we 

are encouraged by the Committee’s pending approval of this legislation. We are 

hopeful that this Committee and the Senate will take quick action on this bill so 

that the House would have the opportunity to also quickly act on the bill. 

On behalf of the over 1.0 million Indian children eligible for JOM, the Leech Lake 

Band of Ojibwe is delighted by the Committee’s speedy consideration of S. 943, and 

would urge its immediate approval. 

Respectfully, 

HON. FARON JACKSON, SR., CHAIRMAN, LEECH LAKE BAND OF OJIBWE

Dear Senator Lankford, 

On behalf of the largest population of Native American students in the nation, 

I am writing to express the Oklahoma State Department of Education’s support for 

the Johnson-O’Malley Supplemental Indian Education Program Modernization Act. 

This update will allow for more accurate counts of Johnson-O’Malley eligible students, ensuring greater access to vital programs and supports for our Native American youth. 

Oklahoma’s public schools serve over 130,000 Native American students, the largest number of Native students in any state. Oklahoma is home to 39 federally recognized tribes, and there are 400 Title VII Indian Education programs operating in 

our public schools. While Oklahoma serves more Native American students than 

any other state, the Bureau of Indian Education operates only one school in OklaVerDate Mar 15 2010 11:14 Sep 25, 2017 Jkt 026823 PO 00000 Frm 00051 Fmt 6601 Sfmt 6621 S:\DOCS\26823.TXT JACK
48 

homa, and the vast majority of Native students participate in the public school system. Nowhere is there a greater need for services to support the success of Native 

American students attending public schools. 

As you know, an updated annual count of students eligible for the JohnsonO’Malley Program has not been conducted since fiscal year 1995, and that count— 

frozen in time over twenty years ago—is still used as a measure of eligible students 

although it does not reflect two decades of population growth. While we know that 

the number of eligible students has grown since 1995, funding has held static due 

in part to the frozen count, and this means that the value of the supports available 

to each participating student has actually declined. The proposed Modernization Act 

would equip the Johnson-O’Malley Program to better serve Native American students by providing for an up-to-date count of those eligible for the program. 

While we remain mindful of the particular challenges that Native American students face in completing an education, Oklahoma’s public school graduation rate for 

Native American students is consistent with the state’s overall rate. At nearly 83 

percent, our Native American students’ graduation rate in 2014 well exceeded the 

nationwide rate of 67 percent for Native students. Oklahoma school districts work 

hard to meet the needs of our Native American students, and the Johnson-O’Malley 

Program provides much-needed support to participating districts and tribal nations. 

The Oklahoma State Department of Education is committed to providing a highquality education to all students, and recognizes our special role in educating the 

largest Native American student body in the country. We offer our strongest endorsement for the proposed update to the Johnson-O’Malley Act, which will help secure appropriate support for the thousands of eligible Native American students attending Oklahoma’s public schools. 

JOY HOFMEISTER, 

State Superintendent of Public Instruction. 

Dear Senator Heitkamp: 

On behalf of the National Indian Education Association (NIEA), the only national 

organization advocating for improved educational opportunities to enable Native 

students to thrive in the classroom and beyond, I write to support Senate Bill 943, 

the Johnson-O’Malley Supplemental Indian Education Program Modernization Act. 

Through this legislation, the Department of Interior (DOI) would update student 

counts to ensure that Native students are receiving critical services through the 

Johnson-O’Malley Program. 

The Federal Government has a constitutional and legal trust responsibility to support equitable, excellent, culture-based educational options for Native students. Despite many government-to-government agreements, ongoing budget cuts have led to 

limited educational options for Native students. To fulfill its unique constitutional 

duty, Congress must ensure that Native children have access to the educational resources that they deserve. 

NIEA thanks you for your leadership on updating the Native student counts for 

programs authorized under the Johnson-O’Malley Program. Reauthorization should 

include language that strengthens tribal sovereignty in Native language programs 

and provides Native students fair and equal access to learning their culture and languages. 

Congress enacted the Johnson-O’Malley Act of 1934 in to address unique academic 

and cultural needs of Native students. The Johnson-O’Malley Program authorizes 

funding for contracts to tribal organizations, school districts, and partner organizations, as approved by the Bureau of Indian Education (BIE), to provide critical resources to support excellent culture-based education for Native students in public 

schools. 

Inaccurate eligible student counts result in large numbers of unserved students 

through Johnson O’Malley. According to the 2010 Census, there were 798,486 qualified American Indian and Alaska Native students. However, the most recent 1995 

student count of Johnson-O’Malley resulted in 271,884 eligible students. As introduced, S. 943 would update the 1995 Johnson-O’Malley student count to include the 

66 percent of eligible Native students that remain underserved by the JohnsonO’Malley program. 

Thank you for your efforts to provide Native students access to excellent and culture based education options. NIEA urges Congress to fulfill the federal trust responsibility by passing the Johnson-O’Malley Supplemental Indian Education Program Modernization Act: we support your work on this legislation to provide brighter futures for Native students across the United States. 

Sincerely, 

49 

YATIBAEY EVANS

PRESIDENT, NATIONAL INDIAN EDUCATION ASSOCIATION (NIEA) 

UNITED TRIBES OF NORTH DAKOTA

Dear Senator Heitkamp: 

Our Board of Directors for United Tribes of North Dakota, the unincorporated association of all of the federally recognized Tribes in North Dakota, has recently 

passed this letter in support of the effort to modernize and reauthorize legislation 

establishing the Johnson O’Malley (JOM) program. This program is often overlooked 

and subject to being cut in the appropriations process, but it is a program that has 

assisted thousands of children and their parents from pre-school through high 

school who are enrolled in public schools. 

JOM is a program allowing school administrators to provide some benefits to Native American children whose families may not be able to provide basic school supplies to their children, and that can help parents be a more active part of their children’s school activities by being part of an Indian Education Committee associated 

with the schools where their children attend classes. At United Tribes Technical 

College (UTTC) over the years, JOM funds have provided children with school supplies, allowed the establishment of an all-Indian school board for the elementary 

school at UTTC, and more recently assisted the pre-school to have special programs 

recognizing the accomplishments of the preschoolers. These kinds of activities help 

get parents involved in the education of their children, something that has been 

shown to be vital to future success of American Indians involved in education. 

We urge you to assist all of the American Indians in the United States and be 

a co-sponsor of the legislation that will modernize the JOM program and that will 

actually acknowledge the numbers of American Indian children that will benefit 

from the program. I am certain that the national JOM association representatives, 

and our Tribal leaders from North Dakota, will be speaking to you about this issue, 

have further ideas and possibly a draft of the legislation, and will work with you 

as the legislation goes forward. 

We thank you again for your continued leadership in promoting the interests of 

American Indian children. I look forward to seeing you soon on this and other 

issues. 

Sincerely, 

DAVE FLUTE, 

Chairman of the Board. 

DEPARTMENT OF PUBLIC INSTRUCTION

Dear Senator Heitkamp: 

On behalf of the more than 12,000 Native American students who are part of 

North Dakota’s five federally recognized American Indian tribes, I am writing to 

offer the North Dakota Department of Public Instruction’s enthusiastic support for 

S. 943, the ‘‘Johnson-O’Malley Supplemental Indian Education Program Modernization Act.’’ 

During the 2016–17 school year, North Dakota had 12,272 Native American students, or 10.4 percent of our total number of students in grades kindergarten 

through 12. Of those 12,272 Native students, 10,262, or 83.6 percent, attended 

North Dakota public schools. 

Johnson-O’Malley funds are distributed to federally recognized tribes and state 

public school districts to bolster vitally important programs and support for our Native students. These funds have been used to pay for tutoring, afterschool programs, 

school supplies, and materials for culturally relevant instruction. 

The Johnson-O’Malley Act awards supplemental assistance to benefit eligible Native students. This is an important reason why the Act urgently needs to be rewritten. The Bureau of Indian Affairs now uses a 1995 count of JOM eligibles to determine money distributions. The 1995 count underestimates the number of eligible 

students by up to two-thirds, and the Bureau of Indian Education has been unable 

to provide a suitable updated number. 

S. 943 would help to remedy this problem. Its language would authorize a more 

accurate count of the number of Native students eligible for Johnson-O’Malley benefits. It would empower the Interior Secretary to identify potential sources of JOM 

funding, and encourage all eligible students to take part in the program. It would 

update the program’s funding formula and eligibility definitions, and require a yearly accountability report to Congress. 

50 

The Johnson-O’Malley Supplemental Indian Education Program Modernization 

Act would buttress the North Dakota Department of Public Instruction’s commitment to providing a high-quality education to all students, including the thousands 

of Native American students in our public schools. Thank you for sponsoring this 

important legislation. 

Sincerely, 

KIRSTEN BAESLER, 

Superintendent of Public Instruction. 

NATIONAL CONGRESS OF AMERICAN INDIANS

Dear Chairman Hoeven and Vice-Chairman Udall: 

On behalf of the National Congress of American Indians (NCAI), the oldest and 

largest organization of American Indian and Alaska Native tribal governments, we 

write in support of the Johnson-O’Malley Supplemental Indian Education Program 

Modernization Act (S. 943). The legislation directs the Secretary of Department of 

Education to determine the number of eligible Indian students, how to reconcile and 

the use the data of the student count, and to reform the funding to conduct the Indian student count. We understand that the Committee will be considering it in 

your hearing tomorrow and we urge the Committee to support this legislation. In 

2013, NCAI membership passed a resolution in support of the program, entitled 

#REN–13–013, ‘‘Supporting Use of Accurate Student Numbers to Create a Sustainable Johnson O’Malley Supplemental Indian Education Program’’. 

S. 943, the Johnson-O’Malley Supplemental Indian Education Program Modernization Act would modernize the ability of accounting for Indian students attending Public Schools. The funding of the Johnson-O’Malley Program (JOM) is determined by the certified student count. However the certified student count has been 

stationary at 1995 levels and has not accounted for the significant increase in the 

past 20 years of Indian students that attend Public Schools. NCAI understands the 

importance of ensuring the accuracy of student count of Indian students, and supports the use of the accurate annual student counts so that JOM programs continue 

to foster and provide these important culturally sensitive education programs. The 

JOM programs are critical to the development of Indian students in their academics, 

and provide students the tools succeed in post-secondary education. 

Native students count, and this legislation would ensure that the Nation’s education policy reflects that. 

Sincerely, 

JACQUELINE PATA, 

Executive Director. 

TRIBAL EDUCATION DEPARTMENTS NATIONAL ASSEMBLY (TEDNA) 

Dear Chairman Hoeven and Vice Chairman Udall: 

The Tribal Education Departments National Assembly (TEDNA) writes in support 

of S. 943, the Johnson-O’Malley Supplemental Indian Education Program Modernization Act. TEDNA is the national membership organization for the Education 

Departments, Divisions and Agencies of American Indian and Alaska Native (AI/ 

AN) Tribes. Virtually all of TEDNA’s members and the tribal students that they 

serve are assisted by or eligible for assistance from Johnson-O’Malley (JOM) programs around the country. 

For over 80 years, Congress has provided JOM funding for hundreds of thousands 

of AI/AN students in K–12 schools. Today, JOM is a well-established supplemental 

program intended to meet eligible AI/AN students’ specialized and unique educational needs. While JOM programs, services, and activities generally are defined 

by federal law and regulation to include such things as academic support, teacher 

support, transportation, and school supplies, they also are tailorable to meet the 

specific needs of students, families and communities at the local level. 

JOM funds flow from the U.S. Department of the Interior annual appropriations 

to states, public school districts, tribes and tribal organizations, and some tribal 

schools. Like many federal education programs, JOM funding is based on a set formula, which includes a determination of eligible students. But unlike other federal 

education programs, the student count for JOM funding has been frozen for decades—the Bureau of Indian Affairs last determined eligible JOM students in 1995. 

The over-20-year-old count of 278,000 students is well under half of the K–12 AI/ 

AN student population of almost 800,000 as reflected in the 2010 Census. TEDNA 

51 

knows of no other federal education program that has endured such disparity and 

inequity primarily due to outdated and inaccurate basic information maintained by 

a federal agency. 

Administrative and other efforts to address this unacceptable situation have 

failed. S. 943 would correct the JOM program’s incongruence and injustice by ‘‘directing the Secretary of the Interior to conduct an accurate comprehensive student 

count for the purpose of calculating formula allocations for [JOM] programs.’’ 

TEDNA unequivocally supports immediate passage of S. 943 as the legislative solution to the full participation of AI/AN students in the schools they attend. 

Very Respectfully, 

GLORIA SLY, 

President. 

MUSCOGEE (CREEK) NATION

Dear Chairman Hoeven and Vice Chairman Udall; 

On behalf of the Muscogee (Creek) Nation, I am writing to express our support 

for the authorization of the Johnson-O’Malley Supplemental Indian Education Program Modernization Act (S. 943). This legislative effort builds upon Congress’ focus 

on supporting Native education in the 21st century. S. 943 is a step in the right 

direction to honor the fiduciary trust obligation the Federal Government has with 

tribes to provide parity in access and equal resources to Native education. 

The Johnson-O’Malley (JOM) program is utilized to meet specialized and unique 

educational needs of Indian students attending public and some tribal schools 

through the use of supplemental education programs. Such supplemental programs 

are designed at the local level under the purview of a local Indian Education Committee. Eligible JOM contract applicants are states, school districts, tribes, and tribal organizations. 

The Muscogee (Creek) Nation JOM program office provides services to the following: 

• 11 Oklahoma Counties 

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

• 17,363 Students 

• 103 Federally Recognized Tribes 

As a nation we strive to provide a comprehensive program that encumbers academic education. cultural aWareness and community involvement. Technical assistance is provided to JOM eligible school sites to facilitate parental involvement as 

well as a partnership that contributes to the academic success of all Native American students. 

The Muscogee (Creek) Nation is particularly supportive of the bill’s push to determine a new per student allocation. In 1995 when the program was all but frozen 

in place, the individual student allocation was approximately $125.00 per student. 

However, based on the 278,000 student count used since 1996, the current allocation 

has dropped to nearly $43.00 per student at a time when any reasonable measurement of the true costs of the goods, services, personnel and transportation costs and 

types of assistance needed by JOM eligible students would show a clear need for 

additional funding. 

After 25 years of waiting for any action by Congress or the Administration to rectify the unacceptable conditions that the JOM program must exist under today, we 

are encouraged by the Committee’s pending approval of this legislation. We are 

hopeful that this Committee and the Senate will take quick action on this bill so 

that the House would have the opportunity to also quickly act on the bill. 

On behalf of the over 1.0 million Indian children eligible for JOM, the Muscogee 

(Creek) Nation is delighted by the Committee’s speedy consideration of S. 943, and 

would urge its immediate approval. 

Sincerely, 

JAMES R. FLOYD, 

Principal Chief. 

52 

THE NEZ PERCE TRIBE (TRIBE) 

Dear Chairman Hoeven and Vice Chairman Udall: 

The Nez Perce Tribe (Tribe) would like to express its support for the avthorization 

of the Johnson-O’Malley Supplemental Indian Education Program Modernization 

Act (S. 943). This legislative effort builds upon Congress’ focus on supporting Native 

education in the 21st century. S. 943 is a step in the right direction toward honoring 

the fiduciary trust obligation the Federal Government has with tribes to provide 

parity in access and equal resources to Native education. 

The Johnson-O’Malley (JOM) program is used to meet specialized and unique educational needs of Indian students attending public and some tribal schools through 

the use of supplemental education programs. Such supplemental programs are designed at the local level under the purview of a local Indian Education Committee. 

Eligible JOM contract applicants are states, school districts, tribes, and tribal organizations. 

The Tribe is particularly supportive of the bill’s acknowledgement that the JOM 

rules, as reflected in Title 25, Code of Federal Regulations, are desperately outdated 

and lacking in the kind of guidance generally needed by JOM contracting parties. 

Many of the needed rule updates are to provisions that have not been reviewed or 

amended since the 1970s, or are in areas where courts have rendered decisions that 

require JOM rules to be brought into compliance with a court’s findings. S. 943 instructions require the Director of the Bureau of Indian Education to undertake and 

complete a rulemaking process to determine how the regulatory definition of ‘‘eligible Indian stuaent’’ may be revised to clarify eligibility requirements for contracting 

parties; determine, as neoessary, how the funding formula may be clarified and revised to ensure full participation of contracting parties, provide clarity on the funding process; and otherwise reconcile and modernize the rules guiding the JOM program. 

After 25 years of waiting for any action by Congress or the Administration to rectify the unacceptable conditions that the JOM program must exist under today, we 

are encouraged by the Committee’s pending approval of this legislation. The Tribe 

is hopeful that this Committee and the Senate will take quick action on this bill 

so that the House would have the opportunity to act quickly on the bill as well. 

On behalf of the over one million Indian children eligible for JOM, the Nez Perce 

Tribe is delighted by the Committee’s prompt consideration of S. 943 and would 

urge its immediate approval. 

Sincerely, 

MARY JANE MILES, 

Chairman. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. HEIDI HEITKAMP TO

TONY DEARMAN

Questions. Mr. Dearman, is the student count for the Johnson-O’Malley program 

used for any other programs? Do you expect that once BEE has completed an updated, verified student count, that it would be used for any other purposes? Can you 

describe the process and number of staff you have who would be involved in compiling BIE’s student count number for JOM? 

Answer. The current 1995 Johnson O’Malley (JOM) student count is utilized specifically for JOM programmatic funding distribution. As the Bureau of Indian Education (BIB) works to increase its focus on data across the organization, it will analyze the possibility of utilizing JOM data for other purposes, contingent on various 

programmatic eligibility requirements. 

Regardless, an updated count will help BIE identify need and allow us to better 

allocate resources where appropriate. 

The BIE acknowledges the need for improved coordination and outreach for attaining an accurate JOM student count. To that end, the BIE continues to work to 

fill the vacant Program Specialist (JOM) position. The JOM position will work to 

conduct outreach with tribes, Native organizations, and contractors in the fall 2017, 

when schools are in session, regarding the reconciliation of existing BIE, Department of Education, and Census Bureau data as well as the future collection of student count information. In the interim, BIE has detailed staff to provide outreach 

and carry out the position’s functions prior to filling the vacancy. 

BIE looks forward to working with Members of the Senate Indian Affairs Committee and key stakeholders to reconcile existing data as well as implement regular 

and accurate student counts going forward. 

53 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. HEIDI HEITKAMP TO

CARLA MANN

Questions. Can you provide a brief description of how the JOM student count 

process operated prior to 1995, and how that compared to the actions BIE undertook 

in 2012, 2014 and 2016? Would you suggest that BIE use the same process utilized 

prior to 1995 to conduct and prepare the updated JOM student count required by 

S. 943? 

Answer. 

• JOM Student Count Procedures 

• The JOM Student count process prior to 1995 was conducted annually by the 

Tribes, School Districts and Native Serving Organizations holding JOM contracts with BIE during the month of October. 

• The first full week of October was generally observed as ‘‘JOM Count Week,’’ all 

schools would endeavor to count JOM students on their highest enrollment day. 

• Notice of the Annual Student count was published [30–45 days] in advance of 

‘‘count week’’ in the Federal Register by BIE. 

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

• All students were verified eligible for services, by utilizing individual Certificates 

of Indian Blood (CIB’s). 

• Once certified, the count numbers were sent to our local BIA, and the BIA Line 

Officer at the Regional Bureau of Indian Affairs. 

• Each regional BIA office compiled the numbers reported in their region, and then 

sent them to the BIA Central office, in Washington DC. 

Post 1996 JOM Student Count Activities 

[Note: Despite the ending of formal JOM counts, many tribes still count the first 

full week of October, so that they can get updated numbers and to certify all eligible 

students.] 

• FY 2012 Count 

The above detailed process was not followed in 2012 in part, because Congress 

only directed the BIE ‘‘update’’ the student numbers from 1996.’’ BIE did publish a Notice in the Federal Register in May 2013 calling for all current contractors to report their current student enrollment but little additional effort was 

expended to alert or advertise the announcement of this count. 

Sadly, many of the reporting contractors only reported numbers based on their 

‘‘contracted count level’’ verses the actual number of students currently ‘‘eligible 

for JOM services.’’ In the rare cases where contractors did report a true count 

of their enrolled students, there was no effort made to determine if the current 

student population being served represented a count of all the students eligible 

for services [this was particularly noted in School districts where new schools 

have been added since 1996, and their 1996 contracts only authorized services 

in previously approved school sites]. Also, as you might assume, most school 

personnel and tribal JOM Directors do not read the Federal Register, and were 

not aware of the May 2013 request. In fact, most schools were already out of 

school or, preparing for the end of the school year. 

• FY 2014 

In 2014, the language from the Omnibus bill directed BIE to conduct a ‘‘comprehensive count of all eligible JOM students nationwide’’. The BIE was given 

(in the January 2014 Omnibus appropriations bill) until 9/30/14 to complete this 

count. On July 27 BIE began mailing letters to all Tribal Leaders requesting 

that they report their JOM student counts to BIE Headquarters via form made 

available only on the BIE website. Again, this process was directed when school 

is out of session, and contractors, other than Tribal Leaders, were not notified. 

In some instances, not all Tribal leaders received the letter, or the information 

was not received by the JOM offices that are responsible for the count. 

• FY 2016 

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

the BIE. 

Question. Would NJOMA want to follow the same process that was followed prior 

to 1995? 

54 

Answer. NJOMA, would say no. 

The counts from 2012 and 2014 show that the BIE is not capable of doing a comprehensive count that identifies the true size of the JOM ‘‘eligible student population’’ across the nation. The downsizing of BIE and other reorganizational activities have had a significantly negative impact on BIE’s data management capabilities. We would also question BIE’s baseline ability to design, construct and conduct 

the kind of data collection effort that would bridge the 21 year gap in collection of 

any data that would track the growth in Native American and Alaskan Native populations shown in the broader society. For this reason, NJOMA is supportive of 

S.943’s intent to direct BIE to utilize widely accepted population/demographic data 

to create a new ‘‘model baseline count of all JOM eligible students.’ We believe that 

once a new baseline projection and count is accomplished, that appropriate steps can 

then be taken to reconcile actual student counts, and further steps can then be 

taken to conduct annual counts that would be more routine for contractors and the 

BIE. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. HEIDI HEITKAMP TO

DONALD R. WHARTON

Questions. S. 943 directs the Secretary of the Interior to report annually to Congress on all contracts performed under JOM. Should we (Congress) feel confident 

that the annual reporting provisions in S. 943 for the JOM program are sufficient? 

If not, what changes would you recommend? What tools exist in federal law or court 

decisions to enforce this provision? 

Answer. Thank you for the invitation to respond to the question. Since S. 943 does 

not have any provision concerning reporting under JOM the Klamath Tribes offer 

no opinion on this issue. 

Æ