U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Publishing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

23–556 PDF 2017

S. HRG. 114–537 

S. 2417, THE TRIBAL VETERANS HEALTH CARE 

ENHANCEMENT ACT, AND S. 2842, THE 

JOHNSON–O’MALLEY SUPPLEMENTAL INDIAN 

EDUCATION PROGRAM MODERNIZATION ACT 

HEARING 

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

MAY 11, 2016 

Printed for the use of the Committee on Indian Affairs 

( 

(II) 

COMMITTEE ON INDIAN AFFAIRS 

JOHN BARRASSO, Wyoming, Chairman 

JON TESTER, Montana, Vice Chairman 

JOHN MCCAIN, Arizona 

LISA MURKOWSKI, Alaska 

JOHN HOEVEN, North Dakota 

JAMES LANKFORD, Oklahoma 

STEVE DAINES, Montana 

MIKE CRAPO, Idaho 

JERRY MORAN, Kansas 

MARIA CANTWELL, Washington 

TOM UDALL, New Mexico 

AL FRANKEN, Minnesota 

BRIAN SCHATZ, Hawaii 

HEIDI HEITKAMP, North Dakota 

T. MICHAEL ANDREWS, Majority Staff Director and Chief Counsel 

ANTHONY WALTERS, Minority Staff Director and Chief Counsel 

(III) 

C O N T E N T S 

Page 

Hearing held on May 11, 2016 ............................................................................... 1 

Statement of Senator Barrasso ............................................................................... 1 

Statement of Senator Daines .................................................................................. 6 

Statement of Senator Heitkamp ............................................................................. 5 

Statement of Senator Lankford .............................................................................. 6 

Statement of Senator Tester ................................................................................... 2 

Statement of Senator Thune ................................................................................... 3 

WITNESSES

Black, Michael S., Director, Bureau of Indian Affairs, U.S. Department of 

the Interior ........................................................................................................... 8 

Prepared statement .......................................................................................... 10 

Mann, Carla, President, National Johnsnon-O’malley Association (NJOMA) .... 15 

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

Trudell, Hon. Roger, Chairman, Santee Sioux Nation ......................................... 11 

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

APPENDIX

Response to Written Questions Submitted to Michael S. Black by: 

Hon. Heidi Heitkamp ....................................................................................... 57 

Hon. Jon Tester ................................................................................................ 56 

Southcentral Foundation (SCF), prepared statement .......................................... 51 

United South and Eastern Tribes, Inc., prepared statement ............................... 52 

Whitefoot, Patricia, National Indian Education Assocation, letter of support ... 53 

(1) 

S. 2417, THE TRIBAL VETERANS HEALTH 

CARE ENHANCEMENT ACT, AND S. 2842, 

THE JOHNSON–O’MALLEY SUPPLEMENTAL 

INDIAN EDUCATION PROGRAM 

MODERNIZATION ACT 

WEDNESDAY, MAY 11, 2016 

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 Barrasso, 

Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. JOHN BARRASSO, 

U.S. SENATOR FROM WYOMING 

The CHAIRMAN. Good afternoon. I call this hearing to order. 

Today the Committee is going to examine two bills, S. 2417, the 

Tribal Veterans Health Care Enhancement Act, and S. 2842, the 

Johnson-O’Malley Supplemental Indian Education Program Modernization Act. These bills address specific concerns regarding 

health care and education for American Indian and Alaska Native 

communities. 

Last December, Senators Thune and Rounds introduced S. 2417, 

the Tribal Veterans Health Care Enhancement Act. This bill 

amends the Indian Health Care Improvement Act. It allows the Indian Health Service, upon referral, to cover the cost of co-payments 

for an American Indian or Alaska Native veteran receiving medical 

care or services from the Department of Veterans Affairs. 

As many of us know here, American Indians and Alaska Natives 

have served in the armed forces at a greater number per capita 

than any other ethnic group. S. 2417 requires the Indian Health 

Service and the Department of Veterans Affairs to, if feasible, enter 

into a memorandum of understanding to provide clarity for how 

this payment system will be executed. Unnecessary agency red 

tape and bureaucracy should not stand in the way of helping our 

veterans. 

On April 21st, Senator Heitkamp, along with Senators Daines 

and Lankford, introduced S. 2842, the Johnson-O’Malley Supplemental Indian Education Program Modernization Act. The Johnson-O’Malley Act is authorized by the Johnson-O’Malley program to 

allow for the Bureau of Indian Education to contract for the education of eligible Indian and Alaska Native students enrolled in 

2 

public schools. More than 90 percent of Indian and Alaska Native 

students attend public schools. The various programs are offered to 

American Indian and Alaska Native students through the JohnsonO’Malley program relate to academics, culture, dropout prevention 

and language. 

Therefore, this bill will amend the Johnson-O’Malley Act to direct the Secretary of Interior, in coordination with the Bureau of 

Indian Education, to take measures in ensuring full participation 

of all eligible Indian and Alaska Native students in the JohnsonO’Malley program. This bill would require the Secretary of Interior 

to provide a more accurate student count of Indian students, utilizing existing data, considering the last official count that was 

verified by the Bureau of Indian Education occurred more than 20 

years ago. That was 1995. Without an accurate student count, it 

is difficult to determine the need for these Johnson-O’Malley programs and the benefit this program provides. 

Today we have Ms. Carla Mann, from my home State of Wyoming, to give testimony on S. 2842. She is from Fort Washakie, 

Wyoming, located on the Wind River Indian Reservation and has 

testified before this Committee on similar issues in the past. Welcome back. I want to thank you, Ms. Mann, for your tireless work 

on these issues and representing Wyoming proudly. 

I would like at this point to turn to Senator Tester for an opening statement. 

STATEMENT OF HON. JON TESTER, 

U.S. SENATOR FROM MONTANA 

Senator TESTER. Thank you, Mr. Chairman. If I might, before I 

get into my opening statement, I want to talk about Kenneth Martin for just a moment. Kenneth Martin is sitting behind me to my 

left. He has served in the Senate for over 12 years now. He started 

as research assistant under Senator Tim Johnson in 2004, at the 

age of 12 years old, isn’t that correct? 

[Laughter.] 

Senator TESTER. And he worked for Chairwoman Cantwell on 

this Committee, starting at 2013, and worked on my staff since 

2014. Today is his last day. He is leaving the good graces of this 

Committee to work for the Department of Transportation, if you 

can believe that, where he will be Deputy Assistant Secretary for 

Tribal Government Affairs. 

This is a new office within DOT and he will do a great job. Because he is incredibly dedicated to Indian Country. He has worked 

on nearly every issue in this Committee’s jurisdiction. 

He in fact has written many of my opening statements and intentionally misspelled words, just to see if I was paying attention. 

[Laughter.] 

Senator TESTER. So I appreciate Kenneth’s work. He really is one 

of the good guys. We wish him the best in the Department of 

Transportation, and just know that we are going to miss you here 

on the Hill. Thank you, Kenneth, for your dedication and your 12 

years of good work here in the Senate. Thank you. 

Mr. Chairman, thank you for holding this legislative hearing this 

afternoon on two bills that touch on some of the most pressing topics our Committee deals with: education, health care and veterans. 

3 

I would like to thank our witnesses today for being here, in particularly two tribal witnesses, Chairman Trudell of the Santee 

Sioux Tribe, Carla Mann from the National Johnson-O’Malley Association and member of the Blackfeet Tribe in Montana. 

S. 2842 would direct the BIA to work with the Department of 

Education and the Census Bureau to update the eligible student 

count for JOM. The count has been frozen at the 1995 level. This 

update would allow the growing number of eligible Native students 

who have been left out of the program to finally be able to participate in the JOM program. 

S. 2417, Senator Thune’s and Senator Rounds’ bill, proposes a 

way for the IHS and VA to make sure Native veterans are able to 

fully access the health care promised to them through both their 

service to this Country and their trust and treaty rights. 

Both bills up for discussion here today look at improving and expanding how tribal members access services provided to them 

based on the unique government-to-government relationship between tribes and the United States. This is another common issue 

that we hear about in this Committee almost on a weekly basis. 

Both these bills will look at how agencies work together to fulfill 

those responsibilities. The trust responsibility of the United States 

is not limited to the Bureau of Indian Affairs or the Indian Health 

Services. All departments and agencies and offices of the Federal 

Government must do their part to uphold the Federal obligations 

to tribes. 

I want to applaud these bills for pointing out the areas where 

different parts of the Administration can work together and better 

serve Indian Country. I would like to say again, thank you, Mr. 

Chairman, for scheduling this hearing, and thank you to our witnesses for being here today. I look forward to hearing about these 

bills and how they might impact folks on the ground. 

The CHAIRMAN. Thank you very much, Vice Chairman Tester. 

Senator Thune, would you like to make a comment regarding 

your bill? 

STATEMENT OF HON. JOHN THUNE, 

U.S. SENATOR FROM SOUTH DAKOTA 

Senator THUNE. Yes, thank you, Chairman Barrasso and Vice 

Chairman Tester, and members of this Committee, for giving me 

an opportunity to speak at today’s hearing regarding one of the 

bills that you are going to be hearing about today, and that is the 

Tribal Veterans Health Care Enhancement Act. It provides a legislative fix to an unfair practice that has been impacting tribal veterans who receive care, both at the IHS and the VA. 

I would point out that there were efforts made under the Indian 

Health Care Improvement Act to streamline and coordinate care 

for tribal veterans. But there is a lot of work that remains to be 

done. 

Currently, if you are a Native American veteran going to your 

local IHS and then requiring purchase and referred care services, 

IHS will refer you to the VA. Now, oftentimes what happens is a 

Native American veteran who accrues a co-payment or co-payments, depending on the medical condition, for services rendered 

through the VA. Unfortunately, instead of the IHS being responVerDate Mar 15 2010 10:52 Jan 25, 2017 Jkt 023556 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\DOCS\23556.TXT JACK
4 

sible for the co-payment, the veteran, who in many cases cannot afford that payment, is left with a bill. 

Conversely, had IHS authorized the PRC services through a private provider, there would be no co-payment for the individual. By 

law, IHS can and does refuse PRC services to tribal veterans. By 

doing so, IHS places the medical cost responsibility on the VA and 

ultimately the Native American veteran. 

The IHS and the VA in the Great Plains area recognized that 

this was an unfair practice that conflicted with our Nation’s trust 

obligations. They sought to address this issue through a local 

memorandum of understanding in which IHS would pay the copayment costs and the VA accepted the payments. In 2012, this 

MOU was rescinded. Once again, bureaucrats thousands of miles 

away intervened with a one size fits all approach that harmed Native American veterans. 

For over three years, I have asked the IHS and the VA to reinstate the local MOU and continue to work to improve coordination 

of care for Native American veterans. I should note that a nationwide MOU exists to provide for veterans services provided at the 

Indian Health Service. The national MOU states that it its purpose 

is ‘‘to establish coordination, collaboration and resource-sharing between the VA and the IHS to improve the health status of American Indian and Alaska Native veterans.’’ However, over the last 

several years, I have continued to hear from several tribal veterans 

with limited incomes, who have had their social security and/or income tax returns garnished by the VA for unpaid co-payments. 

These men and women who have served our Country deserve better than that, Mr. Chairman. 

What gets lost in all of this bureaucratic shuffle and red tape are 

the individuals impacted by this arrangement: Native American 

veterans. These veterans, like all veterans, deserve our upmost respect and gratitude. These are men and women, Native Americans 

first, who then chose to serve the United States. Their sacrifices, 

coupled with the Federal Government’s trust responsibilities, require us to remedy this situation. 

That is what this bill would do. Simply said, it will ensure the 

Federal Government upholds its responsibility to provide health 

care to our Native American veterans. The legislation will remedy 

conflicting Federal law that is harming veterans and further the 

goal of providing the best care possible for our Nation’s heroes. So 

that is the bill, Mr. Chairman. 

Lastly, I just want to mention, and I would be remiss if I didn’t, 

that the ongoing issues within the Great Plains area IHS, as of 

today, it has been 158 days since the Rosebud Hospital’s emergency 

department has been open. One hundred fifty-eight days. In that 

time, there have been six members of the Rosebud Sioux Tribe who 

have died while being transported to facilities up to 55 miles away. 

Six. Six families are left wondering whether their loved ones would 

be alive today if the IHS had not failed in its responsibility to provide safe and quality care. 

This is a disgrace. I look forward to continuing my work with 

you, Mr. Chairman, and with the members of this Committee on 

the legislative path forward. I thank you, Mr. Chairman. I know 

you have a couple of witnesses from my home State of South DaVerDate Mar 15 2010 10:52 Jan 25, 2017 Jkt 023556 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 S:\DOCS\23556.TXT JACK
5 

kota here today that are going to talk about some of these bills. I 

want to welcome them both here, both Mike Black, Director of the 

Bureau of Indian Affairs, then also I want to recognize Roger 

Trudell, who is the Chairman of the Santee Sioux Tribe of Nebraska. Both are great leaders and people that I have worked with, 

and will add greatly, I think, to the discussions that you have 

today on these important pieces of legislation. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you very much, Senator Thune. The other 

piece of legislation was introduced by Senators Heitkamp, Daines 

and Lankford. Would any of you like to make a statement about 

that? 

Senator HEITKAMP. I would. 

The CHAIRMAN. Senator Heitkamp. 

STATEMENT OF HON. HEIDI HEITKAMP, 

U.S. SENATOR FROM NORTH DAKOTA 

Senator HEITKAMP. Thank you, Chairman Barrasso and Vice 

Chairman Tester, for holding this hearing on this bill today. I also 

want to thank Senator Lankford and Senator Daines for joining me 

in this effort to update student counts that will illustrate the resources needed for Native students by the Johnson-O’Malley or 

JOM program. 

We have heard time and time again in this Committee, data is 

lacking for Indian Country. The National Congress of American Indians calls Indian Country the asterisk nation because of the invisibility that is perpetuated by Federal and State agencies and 

policies that leave American Indians and Alaska Natives out of our 

data collection efforts, data reporting and data analysis and public 

media campaigns. 

While the Bureau of Indian Education has attempted to collect 

accurate data for Native students being served by this program, 

failure has persisted for over 20 years. Last month, in a bit of good 

news, the U.S. Census Bureau announced that it will be testing its 

data collection work in North and South Dakota at the Standing 

Rock Sioux Reservation. Hopefully this will help us get a handle 

on accurately assessing population growth and tribal community 

needs. 

Building on this effort, I introduced this bill, which would utilize 

census data and other existing information to help the Bureau of 

Indian Education overcome these obstacles. One of the fastestgrowing demographics, certainly in my State, is Native American 

children. If we are going to be successful into the future, we need 

to make sure that these children get a great start. 

Since the Johnson-O’Malley program was enacted in 1934, funds 

under the program have provided critical funding to support Native 

students and their cultures and schools. That is for public schools, 

which is where over 90 percent of students attend. Unfortunately, 

the estimated numbers of children eligible under the program has 

been frozen since 1995, resulting in diminished funding over time. 

In 1995, the Bureau conducted its most recent official and 

verified JOM student count, which is just over 271,000 eligible Native students. Yet according to the U.S. census, nearly 800,000 

qualified Native American and Alaska Native students in the JOMVerDate Mar 15 2010 10:52 Jan 25, 2017 Jkt 023556 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\DOCS\23556.TXT JACK
6 

eligible age group actually were counted. That illustrates a huge 

gap in the numbers that we use and the numbers that are probably 

reality. 

I don’t fault the Bureau for its inability to get accurate information. But we can’t keep doing the same thing that we have always 

done and expect a different result. Now is the time to look at different methods. I think when you look at the critical importance of 

education as a foundational piece for change, we cannot allow Native American kids to go undercounted and underserved if we expect to have a different future or a different outcome for these children. 

So to me, it is a foundational piece in terms of getting the right 

services available to children. It is absolutely essential, and I want 

to thank the Chairman and the Vice Chairman for including this 

in the hearing today. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you. Senator Daines? 

STATEMENT OF HON. STEVE DAINES, 

U.S. SENATOR FROM MONTANA 

Senator DAINES. Thank you, Chairman Barrasso, Vice Chairman 

Tester. Providing tribal students with a strong education is an essential part of the U.S. trust responsibility. Montana’s 12 federallyrecognized tribes benefit from the Johnson-O’Malley program. I 

have heard from educators and school administrators from across 

Montana how tribal communities need the Department of Interior 

to have an accurate count of students that should be covered under 

the program to meet the educational needs of Native American 

children. 

For example, Daniel St. Pierre, President of Stone Child College 

in the Rocky Boys Reservation, where local Johnson-O’Malley programs are coordinated, has affirmed what we know to be true. That 

is that there are thousands of Native American children across the 

Country who are denied resources they have been promised 

through Johnson-O’Malley, and this program needs to be brought 

into the 21st century. Yet the Department of Interior is still using 

data from 1995. It is hard to believe that this is the case more than 

two decades later. 

That is why I was pleased to help introduce the JohnsonO’Malley Supplemental Indian Education Program and Modernization Act. I want to thank Senators Heitkamp and Lankford for 

their help on this, which will ensure participation of all eligible Indian students under this program. I look forward to hearing testimony on this bill from the witnesses and the greater conversation 

here today. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator. Senator Lankford? 

STATEMENT OF HON. JAMES LANKFORD, 

U.S. SENATOR FROM OKLAHOMA 

Senator LANKFORD. Thank you, Mr. Chairman. I also want to 

thank Senator Daines and Senator Heitkamp for their work on 

this. This has been an ongoing project for a long time. When you 

deal with Johnson-O’Malley, one thing is clear every time you deal 

7 

with it, and that is, the count is wrong. So trying to get an update 

on this count would be extremely helpful. 

In Oklahoma, our estimate from the Department of Education is 

somewhere around 100,000 Native American students. The current 

estimate by Johnson-O’Malley 11,000. So it is a pretty significant 

count on that. 

I have a letter that I would like to submit for the record, if the 

Chairman would allow that. 

This is from our Secretary of Education, Drew Hoffmeister, affirming not only this conversation but also detailing some of the 

issues that are within my State in Oklahoma dealing with JM. So 

I appreciate the work on this. 

The CHAIRMAN. Without objection, so ordered. 

[The information referred to follows:] 

OKLAHOMA STATE DEPARTMENT OF EDUCATION

May 10, 2016 

Senator James Lankford, 

United States Senator, 

Dirksen Senate Office Building, 

Washington, DC. 

Dear Senator Lankford, 

On behalf of the largest population of Native American students in the nation, 

I am writing to express the Oklahoma State Department of Education’s support for 

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

This update will allow for more accurate counts of Johnson-O’Malley eligible students, ensuring greater access to vital programs and supports for our Native American youth. 

Oklahoma’s public schools serve over 130,000 Native American students, the largest number of Native students in any state. Oklahoma is home to 39 federally recognized tribes, and there are 400 Title VII Indian Education programs operating in 

our public schools. While Oklahoma serves more Native American students than 

any other state, the Bureau of Indian Education operates only one school in Oklahoma, and the vast majority of Native students participate in the public school system. Nowhere is there a greater need for services to support the success of Native 

American students attending public schools. 

As you know, an updated annual count of students eligible for the 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. 

Senator LANKFORD. I unfortunately will not be able to stay 

through the whole hearing, as all of us have multiple hearings at 

8 

multiple times. But I would like to ask for the record on this, in 

the days ahead, and this would have been a conversation I would 

have had with Director Black, in February my staff requested a list 

of all Interior programs that deal with opportunities for tribes. We 

were told at that time, if we wanted to know that list, and we 

asked a very specific thing, just a list of all the programs, and if 

they were evaluated, the metrics for those programs, so we would 

get a chance to see those. 

At that time in February, we were told to go to the catalog of 

Federal domestic assistance and search for the word Indian, and 

that would be as close as we could get. Obviously, that is not acceptable to us. We want a basic list of all the programs and a list 

of their effectiveness. We also submitted this as a question for the 

record last month. We don’t think it is an unreasonable request. I 

would assume that the BIA has a list of all their programs, and 

if there is an evaluation of those programs, how they evaluate it. 

That would be very helpful to us. 

One of the passion areas that we have had, in fact, with Senator 

Tester and I just talking about duplication of programs and how 

we can help. Sometimes it is in multiple agencies, in fact, most of 

the time it is in multiple agencies. We want to be able to help in 

that process, to be able to get it to a more effective spot and make 

sure the money is heading towards the actual tribal members and 

what is going on rather than toward the bureaucracy. Most people 

here want to be able to help with that and the journey as well. We 

would like to be able to get that list in the days ahead, just so we 

can be a help in that process as well. 

So that would have been a conversation we would have had. Obviously we won’t have time to do that today. But I will look forward 

to being able to get that list in the days ahead. Thank you. 

The CHAIRMAN. Thank you, Senator Lankford. 

At this time, we are going to hear from our witnesses. We have 

Mr. Mike Black with us, who is the Director of the Bureau of Indian Affairs from the Department of the Interior. We have the 

Honorable Roger Trudell, Chairman of the Santee Sioux Nation, 

from Niobrara, Nebraska. And we have Ms. Carla Mann, President 

of the National Johnson-O’Malley Association, from Fort Washakie, 

Wyoming. 

I want to remind the witnesses that your full written testimony 

will be made part of the official record. Please try to keep your 

statements to within five minutes so there will be plenty of time 

for questions. 

With that, let me start with you, Mr. Black. 

STATEMENT OF MICHAEL S. BLACK, DIRECTOR, BUREAU OF 

INDIAN AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR 

Mr. BLACK. Good afternoon, Chairman Barrasso, Vice Chairman 

Tester and members of the Committee. 

Thank you for the opportunity to provide the Department’s position on S. 2842, the Johnson-O’Malley Supplemental Indian Education Program Modernization Act. 

The Department supports the goals of S. 2842, but does recommend some technical changes. The JM, or JOM program, is authorized by the Johnson-O’Malley Act of 1934. Tribal organizations, 

9 

Indian corporations, school districts and States may receive funds 

once they establish an Indian education committee to approve supplementary support programs. 

American Indian and Alaska Native students are eligible if they 

are members of a federally-recognized tribe or certify that they are 

at least one-quarter or more degree of Indian blood and descendant 

of a member of a federally-recognized Indian tribe eligible for services from the BIE. Indian students have unique educational needs, 

which include learning about their languages, cultures and history. 

They are often in our public schools, with an academic skills deficit 

or are in need of more services to overcome the stressors they face, 

compared to their peers. 

The JOM program is one tool to ensure that Indian students 

thrive in an environment suited to their strengths, which acknowledges their challenges. In fiscal year 2012 and 2014, the BIE performed student counts required by Congress. After formal consultations with representatives from tribes, public schools, tribal organizations and parents, a total of 448 entities submitted student count 

data. There were approximately 556 total JOM contractors. 

The 2012 JOM count identified 321,273 eligible Indian students 

as compared to the last count in 1995, which identified 271,884 eligible students. The 2014 count resulted in a final student count of 

341,495 for the 399 JOM contracts that submitted data. It should 

be noted that not all current JOM contractors submitted a student 

count. 

The Department supports the goals of the bill to strengthen the 

JOM program and ensure that more eligible students are receiving 

the support they need to be successful. However, the Department 

is concerned that Section 7(A)(3)(a) of S. 2842, by defining eligible 

Indian student as an individual who attends public schools but unintentionally eliminate the current allowance for previously private 

schools, which are currently funded under the program. The BIE 

currently funds 41 previously private schools, with a total count of 

5,209 eligible JOM Indian students. We want to ensure that they 

continue to benefit from this program. 

The Department appreciates the legislation’s clarification that 

JOM funds may be used for science, technology, engineering and 

mathematics, or STEM instruction and counseling services. However, we want to work with the bill’s sponsors on a mechanism to 

ensure that JOM funds supplement, but not replace, standard instruction and services in public schools. 

The Department seeks clarification from the bill’s sponsor regarding language in Section 7(C)(1)(d) which states activities that 

were available to Indian students under contracts are entered into 

under this Act October 1, 2012. While the Department supports the 

interest to hold entities harmless under this new legislation, we are 

concerned the provision unduly limits the Secretary’s discretion to 

reduce funding for other reasons, i.e., misuse. 

The bill also directs the Department to cross-check student count 

data with data from the U.S. Bureau of Census, the U.S. National 

Center for Education Statistics and the U.S. Department of Education’s Office of Indian Education, or OIE. We assume the bill is 

referring to the student count used by the OIE formula grant payments under Title 6 of the ESEA, or formerly Title 7. If that is the 

10 

case, it should be noted that Title 6 formula grants are based on 

student eligibility that is broader than JOM eligibility as OIE’s 

count includes members of State-recognized tribes, and children 

and grandchildren of federally-recognized tribes without regard to 

blood. 

The Department is concerned that the U.S. Census Bureau data 

will include self-identified individuals who may not otherwise be eligible for services from the Department’s BIE or BIA because our 

jurisdiction extends only to members of federally-recognized tribes 

or students who are identified as eligible under the Act. We would 

be happy to work with the bill’s sponsor to clarify and develop a 

process to ensure accurate identification of Indian students. 

The Department is also concerned that S. 2842 will change existing language referring to contracts and the collection of a student 

count. The BIE currently relies on the Indian Education committee 

to determine how it will collect and verify student data. Additionally, the Indian Education committee participates in negotiation 

concerning all contracts under this part. 

This concludes my statement, and I am happy to answer any 

questions you might have. Thank you. 

[The prepared statement of Mr. Black follows:] 

PREPARED STATEMENT OF MICHAEL S. BLACK, DIRECTOR, BUREAU OF INDIAN

AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR

Good afternoon Chairman Barrasso, Vice Chairman Tester, and members of the 

Committee. My name is Mike Black. I am the Director for the Bureau of Indian Affairs at the Department of the Interior (Department). I am here today to provide 

the Department’s position on S. 2842, the Johnson-O’Malley Supplemental Indian 

Education Program Modernization Act. 

The Department supports the goals of S. 2842 but recommends some technical 

changes. 

Background 

The Johnson-O’Malley (JOM) Program is authorized by the Johnson-O’Malley Act 

of 1934, and the implementing regulations are provided in Part 273 of Title 25 of 

the Code of Federal Regulations. As amended, this Act authorizes contracts for the 

education of eligible American Indian and Alaska Native students who are not enrolled in Bureau or secretarian operated schools. A local JOM program operates 

under an educational plan that the Bureau of Indian Education (BIE) approves. 

These plans contain educational objectives addressing the needs of eligible students, 

offering various opportunities including cultural enrichment, tribal language, academics, and dropout prevention programs. 

Tribal organizations, Indian corporations, school districts, and States may receive 

funds once they establish an Indian Education Committee to approve supplementary 

support programs. American Indian and Alaska Native students are eligible if they 

are members of a federally recognized tribe, or certify that they are at least onefourth or more degree of Indian blood and descendant of a member of a federally 

recognized Indian tribe eligible for services from the Bureau. In addition, children 

must be between age 3 through grade 12. 

In Fiscal Years (FYs) 2012 and 2014, the BIE performed a student count as required by Congress. After formal consultations 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 count in 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. It should be noted that not all current 

JOM contractors submitted a student count. 

S. 2842 

The Department supports the goals of the bill to strengthen the JOM program 

and ensure that more eligible students are receiving the support that they need to 

be successful. Indian students have unique educational needs, which include learnVerDate Mar 15 2010 10:52 Jan 25, 2017 Jkt 023556 PO 00000 Frm 00014 Fmt 6633 Sfmt 6621 S:\DOCS\23556.TXT JACK
11 

ing about their languages, cultures, and histories. Indian students often enter public 

schools with an academic skills deficit, or are in need of more services to overcome 

the stressors they face compared to their peers. The JOM program is one tool to 

ensure that Indian students thrive in an environment suited to their strengths 

which acknowledges their challenges. 

However, the Department has the following concerns with S. 2842. The Department is concerned that section 7(a)(3)(A) of S. 2842, by defining ‘‘eligible Indian student’’ as an individual who ‘‘attends public school,’’ would unintentionally eliminate 

the current allowance for ‘‘Previously Private Schools,’’ currently funded under the 

program. The BIE currently funds 41 Previously Private Schools with a total count 

of 5,209 eligible JOM Indian students, and we want to ensure that they continue 

to benefit from this program. 

The Department appreciates the legislation’s clarification that JOM funds may be 

used for Science, Technology, Engineering and Mathematics (STEM) instruction and 

counseling services. However, we want to work with the bill’s sponsors on a mechanism to ensure that JOM funds supplement, but not replace, standard instruction 

and services in public schools. 

The Department seeks clarification from the bill’s sponsor regarding language in 

section 7(c)(1)(D), which states, ‘‘activities that were available to Indian students 

under contracts entered into under this Act before October 1, 2012.’’ While the Department supports the interest to hold entities harmless under this new legislation, 

we are concerned that this provision unduly limits the Secretary’s discretion to reduce funding for other reasons (i.e. misuse). 

The Department understands that there are concerns with how the student count 

affects how many students are able to benefit from the program. The bill directs the 

Department to cross-check student count data with data from the U.S. Bureau of 

Census, the U.S. National Center for Education Statistics and the U.S. Department 

of Education’s Office of Indian Education (OIE). We assume 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 that the 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. 

The Department is concerned that U.S. Census Bureau data will include self-identified individuals who may not be eligible for services from the Department of the Interior’s BIA or BIE, because our jurisdiction extends only to members of federally 

recognized tribes or students who are identified as eligible in the Act. We will work 

with the bill’s sponsors to clarify and develop a process to ensure the accurate identification of Indian students. 

The Department is also concerned that S. 2842 would change existing language 

referring to contractors and the collection of a student count. The BIE currently relies on the Indian Education Committee to determine how it will collect and verify 

student data. Additionally, the Indian Education Committee participates in negotiations concerning all contracts under this part. The Department therefore seeks clarification of the term ‘‘significant’’ as it is used in section 7(d)(2)(C)(ii)(II) and in section 7(e)(2)(A) of S. 2842. Section 7(d0(2)(C)(ii)(II) refers to ‘‘eligible entities that 

may potentially enter into contracts under subsection (b) with a significant number 

of eligible Indian students but that have not previously entered into a contract 

under this Act.’’ The Department also seeks clarification of the term ‘‘significant’’ 

in section 7(e)(2)(A) of S. 2842, concerning increased participation, in relation to 

populations. 

The Department also notes that one provision of S. 2842 raises constitutional concerns under the Recommendations Clause. We believe this concern could be easily 

ameliorated, and we will work with the Committee and sponsors to do so. 

This concludes my statement. The Department is committed to working with the 

Committee and the sponsors of S. 2482 to discuss changes to S. 2842. 

The CHAIRMAN. Thank you very much, Mr. Black. 

Chairman Trudell, please. 

STATEMENT OF HON. ROGER TRUDELL, CHAIRMAN, SANTEE 

SIOUX NATION 

Mr. TRUDELL. Thank you, Chairman Barrasso, honorable members of the Committee. Special thanks to Senator Thune, who has 

attended many of the veteran meetings in our region. 

12 

I have submitted written testimony on both proposed amendments. I would like to devote more of my time to generally inform, 

as a veteran. I am the Commander of Region 1, American Indian 

Veterans Association, which is supposed to be a nationally-chartered organization. But we have failed to have our charter get federally-recognized. 

We have nine active tribes in Region 1, North Dakota, South Dakota, Nebraska, that participate regularly at our meetings. Some of 

the concerns of our veterans were addressed very strongly by Senator Thune, and that is the co-pay for services that Indian Health 

Services is referring veterans out to VA for services, and in some 

cases, refusing to see veterans because they are eligible for veteran’s service. 

I agree with Senator Thune, there is a treaty obligation with the 

tribes in the Great Plains that Indian health service would be provide, that health services and social services, et cetera, would be 

provided to the treaty tribes. Indian Health Service was created basically to provide health services to Indians. That they should ever 

deny a service to an Indian, whether that Indian person is a member, a veteran eligible for veteran’s services or not, is totally wrong. 

For an organization who should be dedicating all their services to 

improve health care for all tribal people, regardless if they are veterans or non-veterans, they need to fully realize that they can’t 

separate that category and create a burden on Indian veterans. 

As I say in my testimony, for our region, North Dakota, South 

Dakota, Nebraska, that whenever the Indian veterans have to travel nearly up to 200 miles to receive service from veterans. There 

are some community-based outpatient clinics that provide limited 

services. But for treatment beyond what the outpatient service clinics can provide, then they have to go to Omaha, Sioux Falls or Hot 

Springs, Fort Mead and those areas to get those services. 

We have large reservations with many isolated communities. Not 

only isolated from good roads, but isolated from services. It is very 

difficult for a lot of those, there is inadequate transportation to get 

veterans from one service to another. So I think that this amendment that will allow for the co-pay, which many of the veterans, 

as you have heard, have been charged with. Personally, myself, 

when I went to VA, I was rated at 10 percent, I had to pay a copay on medications and stuff. And believe me, I have enough medications to take care of half of you guys sitting up there. 

Again, the co-pay by American Indians that have served this 

Country, I do not believe that should exist. Indian Health Service, 

with this amendment, could no longer deny paying those co-payments. 

It would also enhance the ability of tribal clinics to further their 

MOUs or MOAs with VA to create an exchange of services between 

tribal facilities and VA, which is allowable under the national 

MOU. So I guess personally, I would like to say that many of our 

veterans have suffered. There is a particular case in Flandreau, 

South Dakota, a gentleman named Dave Williams. Indian Health 

Service and BIA argued over who should pay for his heart operation. He had a bad valve, he has a mechanical valve now. 

I happened to be in Flandreau, and his wife asked to see me and 

another gentleman from Flandreau. She was crying because her 

13 

husband was going to die because nobody was going to treat him. 

We advised him just to go, and if necessary, the Santee Sioux Nation of Nebraska and the Flandreau Santee Sioux would combine 

and we will take up the task and we will see who will pay. While 

BIA I guess ended up paying for it, but the point is, why put his 

family through that type of unnecessary position to have to worry 

about the loss of her husband and their children’s dad? Those 

things should never be heard of in this day and age. 

Many of us as veterans, we grew up as Indian people grew up, 

in very rural, isolated areas. We never had access to medical doctors, nurses or anything. So we just kind of grew up, not worried 

about taking care of the medical needs of ourselves. Even while we 

were in the service, we didn’t go to sick call and things like that. 

So we had no historical medical records while we were in the service outside of the shots and eye tests and dental exam you get 

when you first go in. 

I am sorry, I have run out of time. Thank you for listening to 

me. Thank you. 

[The prepared statement of Mr. Trudell follows:] 

PREPARED STATEMENT OF HON. ROGER TRUDELL, CHAIRMAN, SANTEE SIOUX NATION

S. 2417 

Good Afternoon Mr. Chairman: 

My name is Roger Trudell and I am the Chairman of the Santee Sioux Nation. 

I am also the Chairman of the Great Plains Tribal Chairman’s Health Board. Thank 

you for holding this hearing, and thank you for your interest in this most important 

subject. 

As I am sure that you are aware, American Indians, especially those from the 

Great Plains Region, have served, and continue to serve, in the U.S. Military at 

rates higher than any other ethnic group. I myself am a veteran of Vietnam. I therefore believe that I can speak for all Indian veterans when I say that we are proud 

of our service to this Country, and prouder yet of those native men and women who 

gave their lives to protect the United States and our way of life. Native veterans 

are equally proud of that fact that we fought in defense of our Tribes, our Treaties, 

our Indian relatives, and our tribal sovereignty. 

Unfortunately, all too many of our Indian veterans returned home with physical 

and emotional scars requiring medical attention. Some of these problems are not immediately evident, so all too many of our native veterans find themselves having 

to fight, with very little support, to prove that their current problems are in fact 

service related. This is wrong and something should be done about it! 

What is also wrong is requiring native veterans, who are often among the poorest 

people in the United States, to pay from their own pockets for medical care from 

the VA or any other federal program. The United States has a trust responsibility, 

a Treaty responsibility, and sacred duty to our veterans to insure that those men 

and women who put themselves in harms ways for this country are afforded proper 

medical care. Yet today, when we go to the VA (and especially when we have to 

go to a VA referral care provider) we are asked to complete a financial assessment 

or means test so that the United States can determine how much it is going to 

‘‘charge us’’ for providing the medical services we were promised. Thus, I hope that 

you can understand why Indian veterans’ believe that their right to adequate health 

care is rooted in three separate promises, promises which our veterans currently 

view as unfulfilled. 

To make matters worse, today most of our Indian veterans have to travel hundreds of miles to get to a VA facility. Due to the expense of traveling such a distance, many of our Indian veterans actually have to save for months in order to 

merely make the trip to see a doctor. Adding to this already difficult situation, many 

then have to pay to stay overnight near the VA facility in order to be available for 

a morning appointment that they have waited months to get, to await test results, 

or to be scheduled for a more extensive test like an MRI. This too is wrong! 

When you add together the cost of gas, food, and lodging, along with the cost of 

the deductible or co-pay that VA charges and that the IHS currently does not pay, 

14 

it is not unusual for an Indian veteran to spend $200 or more just to go the VA 

for the care that they were promised. So I ask you, is this right? 

Co-pays of $15–$50 for outpatient care may not seem like a lot to people in Washington, but I can assure you that these co-pays can, and often do, represent the difference between being able to pay or not pay the heat bill for an Indian veteran 

living on my Reservation. This is especially true for older vets. 

The situation becomes even worse for veterans requiring inpatient care, or surgery where co-pays and deductibles can run anywhere from $1,000 up to $4,000 or 

more without warning. This amount is hard for a middle class family to pay in this 

economy and is all but impossible for Indian veterans living at the poverty line in 

Santee. 

No veteran should have to go through a surgery or a serious inpatient illness 

alone, and given the distance and our lack of public transportation, many Indian 

veterans cannot even get to a VA hospital without help. To alleviate this situation, 

many of our Indian veterans are forced to go even further into debt just to allow 

their spouse or another family member to accompany them to the doctor or the hospital. Securing a driver means a higher food bill while traveling and still another 

hotel charge, as well as a loss of work for the person providing that assistance. The 

families of veterans living near urban based VA hospitals can go home a night, but 

in almost every case for a person from Santee, they cannot. I therefore find it ironic 

that the VA already has a program which allows veterans living in ‘‘high cost urban 

areas’’ to qualify for a reduced inpatient copay rate, but those of us living in areas 

which are miles from the closest VA facility and living at or below the poverty line 

do not. 

Mr. Chairman, as a proud Native Veteran and as the leader of the Santee Sioux 

Nation, I respectfully say to you today, it’s time to fix this problem by requiring our 

treaty health provider, the Indian Health Service, to start paying the VA based copays that our Indian veterans are entitled to. It’s only right! It’s only fair! And it’s 

simply the right to do! It is time to do what’s right and fulfill the sacred promises 

made to those who have sacrificed so much. Please pass S. 2417 as soon as possible. 

Thank you again for holding this hearing, and thank you again for caring about 

the native men and women who put their lives on the line for this Great Country. 

S. 2842 

On behalf of the Santee Sioux Nation, I would like to thank you for this opportunity to testify on the Johnson-O’Malley Supplemental Indian Education Program 

Modernization Act. We support this legislation and look forward to the positive impacts that it will have on the lives of so many of our school-age children. 

Our Indian students have too-long been neglected, not just in the schools operated 

directly by the Bureau of Indian Education (BIE), but also in the public school systems that some 93 percent of our Indian children attend. It is all too easy to forget 

that all of the on-reservation school age children from Santee, and a large percentage of the children residing on our Great Plains Reservations, attend public schools. 

These children have many of the same problems and the same needs as those who 

attend BIE operated institutions, but those needs often get lost in the broader public 

educational system. 

Many of our Indian children attending public schools also face the additional obstacles of family income inequality, social and cultural differences, and in some 

cases racism. This bill represents a small step towards addressing these problems 

in that it allows an expanded role for tribal government and tribal institutions in 

decisions that impact our children’s chances for success. 

For too many years, JOM funds have been controlled exclusively by the local 

school systems, and they never seemed to make it down to our Indian students. This 

is because the voices of our tribal parents and tribal governments, who had, and 

still have, the strongest vested interest in insuring that all available Indian funds 

were being used to address the very real problems that our Indian students are facing, were not being heard. S. 2842 will help to change that by allowing tribes and 

Indian organizations to contract to manage those funds. 

While there are many fine and committed educators in our public schools systems, 

there are not enough, and those educators advocating for our Indian children cannot 

operate effectively with inadequate resources. Many of our native students need remedial instruction, counseling, and tutoring, but most of all they need to be made 

to feel that they can achieve. Our Indian students need to be allowed to show their 

pride in our culture and in their Indian identity, and be made to feel that they have 

both the tools and the ability to accomplish any goal that they set their minds to. 

That is largely not the case today. 

15 

At the beginning of the 20th century, the disastrous policy of assimilation was designed to kill a student’s Indian identity. This laid the foundation for boarding 

schools and for a policy designed to encourage our youth to abandon their language 

and culture in order to ‘‘fit in.’’ Instead of achieving the full assimilation that was 

sought, this policy produced lost generations, many of whom are now the parents 

and grandparents of our school aged children. The effects of this assimilation policy 

are still felt today by tribal families and by Indian children both on and off the Reservation. 

With passage of the Johnson-O’Malley Act in 1934, that policy mercifully started 

to change. It is hard, though, for an Indian child to feel proud when they are the 

only one in the room without school supplies, gym clothes, or a book-bag and the 

only one who cannot join the science club because they have no way to get home 

once the school bus leaves at the end of classes. 

When examining why our Indian student’s educational achievement is not higher, 

it is important to remember that in the Great Plains, up to 60 percent of our children live and study in poverty. This is almost double the national average, which 

still hovers somewhere around 33 percent. Thus, the JOM funds provided by Congress are critically needed to support a new direction for our children and to start 

to give them the tools that they need in order to believe in themselves. To accomplish their intended goal, however, those funds need to be managed by entities 

which understand our students and which have their best interest at heart. 

For this reason, we were pleased to see that this legislation allows tribes, tribal 

organizations, and Indian corporations to contract to manage JOM funds. As I noted 

above, no one has a higher vested interest in the success of our children than their 

tribes, and no one is going to listen more carefully to the voices of their parents and 

advocates than we are. 

We were also pleased to see that you are mandating tribal consultation in the establishment of the JOM student count and in managing the proper distribution of 

the JOM funds authorized by this legislation and this Congress. For years our students have been undercounted and, as a tribal leader, I am tired of hearing the excuses that administration after administration has given for allowing this to continue. 

As the leader of the Santee Sioux Nation and as a proud member of the Great 

Plains Tribal Chairmen’s Association, I can state definitively: Give us the resources, 

and the power to use them, and we will make a difference in the lives of our students! 

For all of these reasons, I encourage the passage of S. 2842 as soon as possible. 

The CHAIRMAN. Thank you so much, and you will have more time 

when we get to the questions, Chairman Trudell. Thank you. 

Ms. Mann, thank you for joining us today. Please proceed. 

STATEMENT OF CARLA MANN, PRESIDENT, NATIONAL 

JOHNSNON–O’MALLEY ASSOCIATION (NJOMA) 

Ms. MANN. Good afternoon, Chairman Barrasso, Vice Chairman 

Tester and members of the Committee. 

My name is Carla Mann. I am a member of the Blackfeet Nation, 

also of Eastern Shoshone descent. I live on the Wind River Indian 

Reservation, home to the Northern Arapaho and Eastern Shoshone 

Tribes. I have worked with the Johnson-O’Malley program for 23 

years, but today I am here as a member of the National JohnsonO’Malley Association. I am currently serving as the president. 

As our honorable Senators have said before, the National Johnson-O’Malley Association has advocated for the release of the student count freeze that has been in place since 1995. At that time, 

once the numbers were released of that count, it was 272,000 students. Today we know that we have many more students, even in 

1994, we knew there were more students than were actually counted. 

What we are asking for through this legislation, we support S. 

2841, the Johnson-O’Malley Modernization Act of 2016. There is 

also companion legislation, H.R. 4390. The most important piece of 

16 

both of those pieces of legislation is the comprehensive JOM student count across the Nation. It was said earlier the BIE had two 

counts in 2012 and 2014. We know that those were both flawed 

counts, and we know that they are not showing the true numbers. 

We also think that at this point, due to the cutbacks and losing different employees, the BIE is not in the data collection business. 

In looking for solutions to find a way of counting our students 

across the Nation, we discussed using census data. Census shows 

that we have 798,000 students across the Nation from ages 3 to 18 

that claim to be an enrolled member of a federally-recognized tribe. 

There have been many concerns about self-identification of even 

the census data. We all know that when we fill out our census 

forms, we all identify as one race. So everybody has self-identification. There is going to be a reconciliation process, in utilizing census data that we can find the correct amount of students, that we 

are going to be serving from the census data. 

One thing that we have also identified is there is an OMB directive number 15 on race and ethnic standards that shows how you 

utilize that census data. And it specifically talks about Native 

Americans and how we would use that data. The census data is 

also used in other programs in the Bureau, such as tribal roads, 

and it is also used in Indian housing. 

In conclusion, I would like to say that 93 percent of our Nation’s 

Indian students go to public schools. There is a trust responsibility 

for all students, not just students in Bureau-funded schools or 

grant schools. Our students deserve to have the very best education. We also want them to be well-educated, as our students are 

going to be our future. They are our rising stars that will be coming in future to be able to run all of our programs, our tribes. So 

we want to make sure that all of our students have the very best 

opportunity at a great education. 

In conclusion, I would just like to thank everybody for allowing 

me to talk about the JOM program and also urge the passage of 

this JOM Modernization Act of 2016. Thank you. 

[The prepared statement of Ms. Mann follows:] 

PREPARED STATEMENT OF CARLA MANN, PRESIDENT, NATIONAL JOHNSNON-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. 

2842, the Johnson-O’Malley Modernization Act of 2016; 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, for nearly 25 years and through several Administrations, the Department of Interior and BIE have exhibited a ‘‘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 and again in 2016, 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 today 

on behalf of the over 1 million Indian children asking this Committee and the Congress to quickly approve S. 2842 so that these children can rightfully obtain the 

kinds of supplemental educational services and assistance they need to become productive American citizens. 

Today as we sit here, we hope you are as upset as we are that no one in the BIA, 

BIE or elsewhere in the Federal Government who can tell us, how many Indian children are eligible to participate and receive services or assistance under the JohnsonVerDate Mar 15 2010 10:52 Jan 25, 2017 Jkt 023556 PO 00000 Frm 00020 Fmt 6633 Sfmt 6621 S:\DOCS\23556.TXT JACK
17 

O’Malley program. This unacceptable situation exists because for over 20 years, 

there have been no legitimate efforts made to conduct the kind of research and data 

collection needed to answer the question. This has been the case even though our 

organization has been aggressively calling on Congress and the last 3 Administrations to act. In our view, it is long past the time for us to engage in a serious discussion about alternatives or options to correct this problem. 

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

Lankford, Steve Daines—and we hope all of you will also join—have stepped up to 

introduce legislation to tell the Secretary of Interior to select and use a widely accepted government data set 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, along with companion legislation 

(H.R. 4390, McCullum, Cole, Young and Huffman) introduced in the House will authorize the Secretary to use one these data sets to establish a new baseline count 

of eligible Indian students for use in instituting 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 on an ongoing basis, keep 

the count accurate and reported to the Congress on an annual basis. 

On January 13, 2016, Representative Betty McCollum introduced H.R. 4390, the 

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

the 114th Congress with bipartisan support. In addition, on April 21, 2016, Senators 

Heidi Heitkamp and James Lankford introduced bipartisan legislation to the Senate. Known as S. 2842, the Johnson-O’Malley Supplemental Indian Education Program Modernization Act is the companion bill to the House version. Both bills call 

for an update to the data used by BIE to account for the JOM program. The bills 

call for the Department of Interior to update the student count in a timely manner 

using both Census data and data from the National Center for Education Statistics 

(NCES) to account for the eligible students that are currently underserved or denied 

JOM services entirely. 

As a result of Congressional advocacy by NJOMA, the BIE was directed to resume 

the JOM student count. The FY 2012 Congressional Interior Appropriations Act (H. 

Rpt. 112–151) contained a directive for the Bureau to conduct a student count update. The BIA executed—but failed to report to Congress—a partial attempt to update the JOM student count. While BIE admitted the update was flawed, it has 

been verbally acknowledged—but never officially reported—that the 2012 count 

found an increase of over 50,000 JOM-eligible students. Sadly, the update was fundamentally flawed because the FY 2012 directive failed to order the Secretary of the 

Interior (BIE) to conduct outreach to Tribal organizations, Indian Corporations, 

school districts or States that are ‘‘non-participating’’ entities in the JOM program 

today. Rather, because of the general language contained in the directive, BIE only 

contacted and counted existing enrolled students and JOM contract-holders. 

For that reason, the FY 2014 Consolidated Appropriations Act (P.L. 113–76) contained a more specific directive for BIE to conduct a full and accurate student count 

in fiscal year 2014 and to publish the results before the end of the fiscal year. On 

July 24, 2014, the BIE began this student count by sending a letter to tribal leaders 

but did not conduct a broader outreach and did not provide the materials online 

until August 19, 2014. The student count period was set to end on September 15, 

2014, but was extended to the end of the calendar year. The FY 2015 Congressional 

Interior Appropriations Act (H. Rept. 113–551) contained a directive to BIE to publish the results of the most recent student count; to date, no results have been published nor student count information publicly released. No alternative has been presented by this or the two previous Administrations to address the absence of reliable 

data for the JOM program. And finally by FY 2016, the Committee 

NJOMA has been at the fore front of a drive to educate and organize tribes and 

other National tribal and educational organizations in a call by all the stakeholders 

in the JOM program to simply just acknowledge that there has been a significant 

gap in the collection of the data needed to effectively and fully operate the JOM program. We have also made numerous attempts to reach out to BIA, BIE and the 

White House to try to develop an administrative fix for the JOM student count situation and develop a funding plan , as evidenced by the letter attached to my statement (See exhibit A). This letter signed by the Presidents of NJOMA, the National 

Congress of American Indians (NCAI), National Indian Education Association 

(NIEA) and National Education Association (NEA) presented a request to the Secretary to convene a meeting of the key stakeholders so that we could develop a plan 

and implementation Plan to bring the JOM program into the 21st century. Regrettably, we have only been given one excuse after another as to why none of the appropriate officials of the Department could or would have a meeting. 

18 

For years when members of our Board and others in the JOM family have visited 

Washington in pursuit of additional program authority and funding for JOM, we 

have been told by Members of Congress and your staff that until data more accurately reflecting the program is presented there’s little that could be done to bring 

JOM in-line with the numbers of students that school districts and tribes see at the 

local levels. S. 2842 moves us toward resolution of the student count issue. 

What Does the Census Data Tell Us? 

The Native American population that has been one of the demographic groups experiencing positive population growth for the last 40 plus years. According to the 

2010 census, 5.2 million people, or 1.7 percent of all people in the United States, 

identified as American Indian and Alaska Native, either alone or in combination 

with one or more races. This population alone grew by 27 percent from 2000 to 

2010. In the 2010 census, those who reported being American Indian and Alaska 

Native alone totaled 2.9 million, an increase of 18 percent from 2000 to 2010. The 

multiple race American Indian and Alaska Native population, as well as both the 

alone and alone-or-in-combination populations, all grew at a faster rate than the 

total U.S. population, which increased by 9.7 percent from 2000 to 2010. The data 

also shows us the steady growth that has occurred and is forecast to continue to 

happen within the ages 3–12 years old demographic, and the forecasts up to and 

beyond 2020 present this same picture. 

On June 30, 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 278,000 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 is clear that 

there are a large number of 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. 

Current Use of Census Data 

NJOMA has been leading an effort—despite BIA’s reluctance to embrace our position—to replace the BIE’s annual student count process, which it appears unwilling 

and unable to make perform effectively, with usage of U.S. Census data. 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). 

19 

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

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

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

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

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

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

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

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

out its trust responsibility in essential social and economic areas. 

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

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

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

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

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

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

data collections asked people to report only one race. 

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

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

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

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

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

While the Department 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 Department to do so. It is also an essential mechanism for monitoring the quality of services that the Department is responsible to provide to American Indian and Alaska 

Native people. By the Department’s inaction, tribes are being made responsible for 

a lack of federal agency coordination around the issue of data quality and the measurement of small populations. Specifically, there needs to be greater coordination between the Department, Census, and Office of Management and Budget to address 

the widespread problems that plague data collection for Indian Country. 

BIA/BIE’s 2012 and 2014 counts—as imperfect as they may be—make the clear 

case that there have been increases in the number of students needing and being 

serviced by JOM since 1994. The only real issues in dispute are how much of a student increase has actually 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 Census 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. 2848 will direct the use of Census data to bridge the 20 year gap 

since the last true JOM student count and serve as a replacement for a BIE count 

altogether. 

Indian Country’s View on Census Data 

In 2014, both the National Congress of American Indians (NCAI) and the National Indian Education Association (NIEA) passed resolutions (See attached exhibits B and C) calling for greater coordination among Interior, the Census Bureau, 

and the Office of Management and Budget to ensure that Census data is accurately 

utilized for the benefit of eligible JOM students. NCAI Resolution ATL–14–039 and 

NIEA Resolution 2014–19 call for the upholding of the federal trust responsibility 

though the use of Census data for updating JOM student counts. In addition, the 

National Education Association (NEA), has signed a joint letter with NJOMA, 

NCAI, and NIEA supporting the efforts to use Census data in lieu of an accurate 

student count. 

20 

We also have just recently received a resolution of support for our efforts from 

the Inter-Tribal Council of the Five Civilized Tribes representing the historic Cherokee, Choctaw, Chickasaw, Creek, and Seminole nations (See attached exhibit D). 

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 Tribal Priority Allocation (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 made a funding distribution based on the national budget divided by 

the student count, taking into consideration the cost of living in each state. For example, Alaska received the highest per student cost based on the high cost of living 

in that state. 

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

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

annual evaluations of each program, including a random student certification 

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

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

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

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

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

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

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

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

managers reviewed their prospective budgets before forwarding them to the Director 

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

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

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

process. 

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

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

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

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

The 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. 

21 

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 that 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, even though the great majority of Native students attend public schools and 

not Bureau-operated 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 an increase of students served due to the freeze and those Indian students 

attending public schools are being overlooked for services. Without a current JOM 

student count, there is no way to estimate the current percentage of JOM students 

being served in comparison to the BIE. 

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

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

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

Country. Evidence of this mismanagement by BIA occurred with the FY 2007 Budget submission. Lack of program performance accountability, duplication of other 

state and federal programs and implementation of management efficiencies were 

among the reasons given in the budget documents for the reprogramming of 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. 

22 


511a1.eps
23 


511a2.eps
24 


511a3.eps
25 


511a4.eps
26 


511a5.eps
27 


511a6.eps
28 


511b1.eps
29 


511b2.eps
30 


511b3.eps
31 


511b4.eps
32 

Federal Trust Responsibility and JOM 

The United States has a unique nation-to-nation relationship with and owes a 

trust responsibility to Indian tribes. The federal government’s trust relationship 

with Indian tribes (which is based on treaties, agreements, statutes, court decisions, 

and executive orders) charges the United States with moral obligations of the highest responsibility. The federal Indian trust responsibility is a legal obligation under 

which the United States ‘‘has charged itself with moral obligations of the highest 

responsibility and trust’’ with respect to Indian tribes (Seminole Nation v. United 

States, 1942). 

This duty to tribes was first discussed in 1831 in Cherokee Nations v. Georgia and 

has evolved over the countless Supreme Court cases on the issue, making the trust 

doctrine one of the most important principles in federal Indian law. The trust responsibility is also a legally enforceable fiduciary obligation that charges the United 

States with the duty to protect tribal treaty rights, assets, resources, and lands. In 

addition, there is a duty to implement federal law mandates regarding American Indian and Alaska Native tribes and villages. The Supreme Court has indicated that 

the doctrine entails legal duties, moral obligations, and the fulfillment of expectations and understandings that have developed from the relationship of the United 

States and federally recognized tribes. The federal government is charged with acting fairly, justly, and honestly in the utmost good faith and with sound judgment 

and prudent in dealing with tribes (Assinibione and Sioux Tribes vs. Board of Oil 

and Gas Conservation, 1986). The trust responsibility applies to tribes and individuals. 

The Assistant Secretary-Indian Affairs is responsible for carrying out the Interior 

Department’s trust responsibilities and must promote economic well-being and selfdetermination. The Secretary is charged with maintaining the federal governmentto-government relationship between the United States and federally recognized 

tribes. The BIA’s Mission Statement describes their relationship with American Indian and Alaska Native people as: 

‘‘The BIA’s mission is to enhance the quality of life, to promote economic opportunity, and to carry out the responsibility to protect and improve the trust assets of American Indians, Indian tribes and Alaska Natives. We will accomplish 

this through the delivery of quality services, maintaining government-to-government relationships within the spirit of self-determination.’’ 

Within the BIA is the BIE, which is charged with providing quality education opportunities for Native students. The United States government has utterly failed in 

satisfying the federal trust responsibility owed to tribes by refusing to properly 

manage, account for, and administer the JOM program. Through inaction, failure 

to satisfy basic administrative requirements, and complete disregard of CongresVerDate Mar 15 2010 10:52 Jan 25, 2017 Jkt 023556 PO 00000 Frm 00036 Fmt 6633 Sfmt 6621 S:\DOCS\23556.TXT JACK

511b5.eps
33 

sional mandates regarding this program, the BIA is denying over ninety percent of 

Indian students the trust responsibility it is charged with carrying out. There is 

both a legal and moral component to the trust responsibility, based in specific statutes as well as Supreme Court rulings. Under the Administrative Procedure Act, 

tribes may bring cases to force action to honor the doctrine of federal trust responsibility. 

In June 2014, President Obama made his first visit to Indian Country and announced his administration’s plans to focus on Indian education, and reform the 

BIE. The President’s proposals indicate an understanding of the need for reform in 

the area of Indian education, yet focusing policies on Bureau operated schools 

misses the mark, as only seven percent of Native students attend these schools. The 

reform needs to extend to all Native students, no matter what school they attend. 

Additionally, in August 2014 Interior Secretary Jewell issued a Secretarial Order 

reaffirming the Department of the Interior’s trust responsibilities to federally-recognized tribes and individual beneficiaries. 

The federal trust responsibility is one of both moral and legal obligations that the 

federal government is required to meet. It is the federal government’s duty to ensure protection of Indians—from their assets, resources, land, health services, and 

education. Both the President’s visit and the Secretary’s order indicate the Administration’s understanding of their trust responsibility and that Indian Country is 

being let down; that the federal government is failing to live up to their trust responsibility. Providing the funds to ninety-three percent of Indian students to which 

they are entitled is part of that responsibility, but first those students must be 

counted. The usage of Census data when accounting for the JOM program is the 

first step in the government fulfilling their responsibility. 

Conclusion 

As Secretary Jewell noted in the June 2014 Native Youth Report released when 

President Obama embarked on his first presidential visit to Indian Country: ‘‘The 

future of Indian Country rests on ensuring American Indian children receive a 

world-class education that honors their cultures, languages and identities as Indian 

people.’’ 

On behalf of the over 1.0 million Indian children eligible for JOM, I would like 

to thank you again for consideration of S. 2842 so quickly after its introduction. 

After 25 years of waiting for any action by Congress or the Administration to rectify 

this shameful situation, we are hopeful this Committee’s quick action on the bill is 

an indication that things may be headed in the right direction. Thank you. 

Attachments 

December 17, 2014 

The Honorable Sally Jewell, 

Secretary, 

U.S. Department of the Interior, 

Washington, DC. 

RE: JOHNSON-O’MALLEY SUPPLEMENTAL INDIAN EDUCATION PROGRAM

STUDENT COUNT UPDATE

Dear Secretary Jewell: 

On behalf of the National Indian Education Association (NIEA), the National Congress of American Indians (NCAI), the National Education Association (NEA), and 

the National Johnson O’Malley Association (NJOMA), we urgently request an update to the student count under the Johnson-O’Malley Supplemental Indian Education Program (JOM (25 CFR 273)). As national organizations that advocate on behalf of tribes and Native students across the country, it is important that we call 

your attention to the continued need to update the student count within the Bureau 

of Indian Affairs (BIA). 

Despite directives by Congress in Fiscal Years 2012 and 2014 in the House Interior, Environment, and Related Agencies Appropriations Bills, the U.S. Department 

of the Interior (Department) has yet to make updating the student count a priority, 

which inhibits the intent and integrity of a program that is vital to the success of 

Native students. Given the lack of progress on securing an adequate student count 

and the significant undercounting of students who should be eligible to participate 

in the program, our organizations recommend that the Department utilize existing 

data, such as that from the U.S. Census, until the Department works with tribal 

communities to identity their actual student counts. 

The Department currently uses Census data for existing Indian programs, including the Workforce Investment Act, the Indian Housing Block Grant program, the 

Tribal Transportation program, and other programmatic formulas. Similarly, the 

BIA utilizes Census data for its American Indian Population and Labor Force ReVerDate Mar 15 2010 10:52 Jan 25, 2017 Jkt 023556 PO 00000 Frm 00037 Fmt 6633 Sfmt 6621 S:\DOCS\23556.TXT JACK
34 

ports, which Congress regularly uses to inform policymaking decisions regarding 

tribal programs. 

To facilitate this temporary solution through existing and readily available data, 

our organizations call for greater coordination among the Department, the U.S. Census Bureau, and the White House Office of Management and Budget to ensure that 

Census data collection is accurately utilized to benefit Native students eligible for 

JOM. We steadfastly believe the same justifications for usage of Census data in 

other tribal programs apply to the JOM program and should be utilized until the 

Department gathers accurate student count information. 

We urge the Department to take immediate action regarding the utilization of 

Census data in the JOM program in order to alleviate a longstanding problem that 

was not created by tribes, but whose citizens and students are significantly impacted by inaccurate and incomplete data and extensive bureaucratic delays. As 

such, our organizations passed resolutions (NIEA Resolution 2014–19 and NCAI 

Resolution ATL–14–039), which call for the upholding of the federal government’s 

trust responsibility through the use of Census data for updating JOM student 

counts. 

We appreciate the work you have done to emphasize Native students this year 

and we look forward to your leadership in making the requisite administrative policy changes in order to provide adequate JOM funding to our students. We request 

that you meet with our organizations and JOM experts prior to year’s end in order 

to discuss the JOM student count, utilizing the Census data as a temporary remedy, 

and ensuring the BIA ultimately modernizes the JOM program with sustainable future funding levels and greater accuracy through coordination and consultation with 

tribal communities. By working together we can all ensure that Native students are 

equipped with adequate resources and opportunities to foster positive academic, social, and economic outcomes for the future generation of leaders across Indian Country. 

Sincerely, 

MELVIN MONETTE, PRESIDENT LILY ESKELSEN GARCIA, PRESIDENT

NATIONAL INDIAN EDUCATION ASSOCIATION NATIONAL EDUCATION

ASSOCIATION

BRIAN CLADOOSBY, PRESIDENT CARLA MANN, PRESIDENT

NATIONAL CONGRESS OF AMERICAN INDIANS NATIONAL JOHNSON-O’MALLEY

ASSOCIATION

THE NATIONAL CONGRESS OF AMERICAN INDIANS—RESOLUTION #ATL–14–039 

TITLE: SUPPORTING THE UTILIZATION OF U.S. CENSUS DATA FOR UPDATING THE

JOHNSON-O’MALLEY STUDENT COUNT

WHEREAS, we, the members of the National Congress of American Indians of 

the United States, invoking the divine blessing of the Creator upon our efforts and 

purposes, in order to preserve for ourselves and our descendants the inherent sovereign rights of our Indian nations, rights secured under Indian treaties and agreements with the United States, and all other rights and benefits to which we are entitled under the laws and Constitution of the United States, to enlighten the public 

toward a better understanding of the Indian people, to preserve Indian cultural values, and otherwise promote the health, safety and welfare of the Indian people, do 

hereby establish and submit the following resolution; and 

WHEREAS, the National Congress of American Indians (NCAI) was established 

in 1944 and is the oldest and largest national organization of American Indian and 

Alaska Native tribal governments; and 

WHEREAS, the National Johnson-O’Malley Association (NJOMA) is the elected 

advocate representing students, ages 3 through high school, who are enrolled in or 

eligible for enrollment in Federally-recognized tribes and not attending or served by 

Bureau of Indian Education (BIE) schools, and currently being served from respective tribal jurisdiction boundaries and service areas; and 

WHEREAS, NCAI and NJOMA have established a consensus that the academic, 

social and economic well-being of our Indian and Johnson-O’Malley (JOM) students 

are our highest priority; and 

WHEREAS, the JOM funding and the certified student count of 278,000 has been 

frozen at its 1995 level; the current student count of 321,250 was updated by the 

BIE in 2012; however, according to data collected by the U.S. Census Bureau, in 

2010 there were 798,486 American Indian and Alaska Native alone students in the 

age group eligible to receive JOM assistance, and 1,469,722 American Indian and 

35 

Alaska Native alone or in any combination students, 93 percent of whom attend 

Public Schools, which leaves more than 400,000 students with unmet needs; and 

WHEREAS, without continued and appropriately assumed levels of annual Congressional funding, JOM programs that foster specialized, culturally sensitive and 

unique educational programs that develop leadership skills of future tribal leaders 

necessary to promote positive academic, social and economic changes in Indian communities will slowly cease to exist; and 

WHEREAS, the United States Congress is not being annually informed of positive impacts and outstanding achievements of the supplement education programs 

provided by JOM funds; nor are sufficient steps being taken to insure the full participation of all eligible Indian students and the public schools they attend. 

NOW THEREFORE BE IT RESOLVED, that NCAI joins NJOMA, the National 

Indian Education Association (NIEA), the United South and Eastern Tribes (USET) 

and the Tribal Education Departments National Association (TEDNA), in support 

of efforts to use U.S. Census data for a student count for the JOM program and 

for funding level determinations; and 

BE IT FURTHER RESOLVED, that NCAI calls for the use of a uniform allocation funding formula based on U.S. Census data as it is currently being the most 

accurate projection of the JOM-eligible student population; and work with tribal 

communities to identify their actual count; and 

BE IT FURTHER RESOLVED, that NCAI welcomes the opportunity to work 

with NJOMA, NIEA, USET, TEDNA and other stakeholders in developing and enacting federal policy and regulatory measures the modernize and position the Supplemental Indian Education Program (known as the Johnson-O’Malley Program) as 

a sustainable program whose future funding levels are adequate for assistance of 

all eligible students to achieve academically so they may become the future leaders 

of tribal nations and promote positive academic, social and economic changes for future generations; and 

BE IT FINALLY RESOLVED, that this resolution shall be the policy of NCAI 

until it is withdrawn or modified by subsequent resolution. 

CERTIFICATION 

The foregoing resolution was adopted by the General Assembly at the 2014 Annual Session of the National Congress of American Indians, held at the Hyatt Regency Atlanta, October 26–31, 2014 in Atlanta, Georgia, with a quorum present. 

NATIONAL INDIAN EDUCATION ASSOCIATION (NIEA)—RESOLUTION 2014–19 

TITLE: SUPPORT UTILIZING U.S. CENSUS DATA FOR UPDATING THE JOHNSON O’MALLEY

STUDENT COUNT

WHEREAS, we, the members of the National Indian Education Association 

(NIEA) of the United States, invoking the divine blessing of the Creator upon our 

efforts and purposes, in order to preserve for ourselves and our descendants the inherent sovereign rights of our Indian nations, rights secured under Indian treaties 

and agreements with the United States, and all other rights and benefits to which 

we are entitled under the laws and Constitution of the United States, to enlighten 

the public toward a better understanding of the Indian people, to preserve Indian 

cultural values, and otherwise promote the health, safety and welfare of the Indian 

people, do hereby establish and submit the following resolution; and 

WHEREAS, the National Indian Education Association was incorporated in 1970 

and advances comprehensive educational opportunities for American Indians, Alaska Natives, and Native Hawaiians throughout the United States.; and 

WHEREAS, the National Johnson-O’Malley Association (NJOMA) is the elected 

advocate representing students, ages 3 through high school, who are enrolled or eligible for enrollment in federally-recognized tribes, not attending or served by Bureau of Indian Education (BIE) schools, and currently being served from respective 

tribal jurisdiction boundaries and service areas; and 

WHEREAS, NIEA and NJOMA have established a consensus that the academic, 

social, and economic well-being of our Native students are our highest priority, regardless of where they attend school; and 

WHEREAS, according to 25 CFR 273.1, the purpose of the Johnson-O’Malley 

(JOM) program is to meet the specialized and unique educational needs of Indian 

children attending public and some tribal schools through the use of supplemental 

education programs, and 

WHEREAS, the BIE completed an inaccurate and unofficial student count in 

2012 resulting in the continued use of the outdated certified student count of 

278,000 from 1995; and 

36 

WHEREAS, according to the U.S. Census Bureau, there were 798,486 American 

Indian and Alaska Native students (alone) in the JOM-eligible age group, and 

1,469,722 American Indian and Alaska Native students (alone or in any combination) in 2010, forcing more than 400,000 Native students to attend school with 

unmet needs; and Census data is regularly collected, reliable information upon 

which the federal government regularly relies on for many other programs, including tribal; and 

WHEREAS, without continued and accurately assumed levels of annual congressional funding, JOM programs that foster specialized, culturally-sensitive and 

unique educational programs will decrease in its ability to serve the true number 

of Native students eligible for JOM assistance; and 

WHEREAS, federal agencies continue to forego providing accurate and timely 

JOM student count information to the United States Congress nor are sufficient 

steps being taken to guarantee the full participation of all eligible Native students 

and the public schools in which they attend; 

NOW THEREFORE BE IT RESOLVED, that NIEA joins the NJOMA, the National Congress of American Indians (NCAI), the United South and Eastern Tribes 

(USET), and the Tribal Education Departments National Association (TEDNA) in 

support of efforts to use U.S. census data for a student count for the JOM program 

and for funding level determinations; and 

BE IT FURTHER RESOLVED, that NIEA calls for the use of a uniform allocation funding formula based on U.S. census data after it has determined the most 

accurate depiction possible of the JOM-eligible student population; and 

BE IT FURTHER RESOLVED, that NIEA welcomes the opportunity to work 

with NJOMA, NCAI, USET, TEDNA, and other stakeholders in developing and enacting federal policy and regulatory measures to modernize and position the Supplemental Education Program (known as the Johnson-O’Malley program) as a sustainable program whose future funding levels are adequate for assist all eligible students achieve academically so they may become the future leaders of tribal nations 

and promote positive academic, social, and economic changes for future generations; 

and 

BE IT FINALLY RESOLVED, that NIEA recognizes the immediate nature and 

timely need to address this issue and therefore will officially request within two 

weeks immediate action pertaining to this issue within the Department of the Interior, the Bureau of Indian Education, and the United States Congress; and 

CERTIFICATION 

I do hereby certify that the following resolution was dully considered and passed 

by the National Indian Education Association on October 18, 2014 at which time 

a quorum of the membership was present. 

Melvin Monette, President 

37 


511b6.eps
38 

The CHAIRMAN. Thank you for your testimony. We will start with 

rounds of questioning. I would like to start with Senator Daines. 

Senator DAINES. Thank you, Mr. Chairman. As I mentioned earlier, the Johnson-O’Malley program benefits thousands of tribal 

students across the state of Montana. It is critical that the department of Interior gather updated information to ensure that all eligible Native American students have the tools that they need to 

learn. 

Mr. Black, do you know approximately how many tribal students 

are estimated to qualify for the Johnson-O’Malley program who 

aren’t currently being covered? 

Mr. BLACK. I don’t have that information, sir. 

Senator DAINES. I understand that March of last year, Interior 

stated that they would consult with tribes who had existing Johnson-O’Malley programs and other educational organizations about 

the methodology that was being used to allocate JOM funding 

based on the 2014 student count. I understand these consultations 

happened in 2015. What were the results of those consultations? 

Mr. BLACK. We did approximately seven consultations around 

the Country over the last year, in 2015. The results of that I don’t 


511a7.eps
39 

have with me right now, but I would be happy to get back to you 

on that. 

Senator DAINES. Would the Department of Interior publish, publicly, the results of those conversations? 

Mr. BLACK. If they were official tribal consultations, they would 

be public record. We record all of that information from the consultation sessions. 

Senator DAINES. And has the Department of Interior begun using 

the 2014 data as a basis to allocate the JOM funding? 

Mr. BLACK. Right now, due to a number of factors, there are still 

spirals, we didn’t get all of the JOM contractors that reported. So 

right now, there are some challenges as to how we would be able 

to use that data in applying it toward some type of a formula. 

Senator DAINES. So the answer is no, and that is because we 

don’t have all the data yet? 

Mr. BLACK. Yes, I don’t believe we have all the data. As I stated, 

we had 391 of the JOM contractors respond and provide date, of 

approximately 556 total contractors. So we are short probably 

about 30 percent or so of our total contractors. 

Senator DAINES. So that gap, I did the quick math here, it is 

about 72 percent of the contractors, there are 28 percent you have 

not received the data from. 

Mr. BLACK. Just to clarify, in 2012, we had more respond to that. 

But then in 2014, some of them may not have re-responded again. 

So some of those numbers, we would have to take a look at together. 

Senator DAINES. So does BIA have or is BIA developing a strategy to collect sufficient data to get responses from more than 72 

percent of the participating entities? 

Mr. BLACK. Yes. They are currently looking at the process that 

we used previously in 2012 and 2014, and looking for ways we can 

improve the response rate. The JOM is a voluntary program, so we 

don’t have a mandatory tool that we can use to require reporting 

at this point in time. 

Senator DAINES. If we told the contractor, you don’t get funding 

unless you respond, would that help? 

Mr. BLACK. I am sure it probably would. We do not have that 

ability right now. 

Senator DAINES. Why not add some teeth? What can we do to put 

some teeth in this to ensure we get the data? This is the problem, 

we have heard a lot of Senators talk about this gap, where there 

are students being denied these resources because we are not getting accurate data. 

Mr. BLACK. I think that would be something we would be happy 

to work with the Committee on and then get you background information as far as ideas of how we can improve that reporting. 

Senator DAINES. There is an old saying in business: you get what 

you inspect, not what you expect. And to put some teeth in this, 

some accountability, I know darned well if you said, you don’t get 

any funding unless you respond to the survey with accurate data, 

I bet you that would fix the problem in about 24 hours. 

Mr. BLACK. You are probably right. 

Senator DAINES. Just a suggestion. Are you aware the Appropriations conference repots have since 2012 directed the BIE in coordiVerDate Mar 15 2010 10:52 Jan 25, 2017 Jkt 023556 PO 00000 Frm 00043 Fmt 6633 Sfmt 6601 S:\DOCS\23556.TXT JACK
40 

nation with the Department of Education to count the number of 

students eligible for the Johnson-O’Malley program and recommend a methodology to distribute funds in the future? 

Mr. BLACK. Yes, that is my understanding. That is what resulted 

in the 2012 and 2014 counts. 

Senator DAINES. And that by failing to do so, BIE is not compliant with these directives? 

Mr. BLACK. I understand that we did conduct the 2012 and 2014 

counts and conducted the consultations. 

Senator DAINES. Yes, but the data, we all know, is insufficient. 

A 72 percent score is barely a C. We are talking about 157 contractors here that just didn’t respond, which represents thousands and 

thousands of students. So the last question is, is there currently an 

estimated time line for the Department to conduct an updated, accurate student count? 

Mr. BLACK. That I would have to get back to you on, Senator. 

Senator DAINES. I don’t sense urgency in correcting this. What 

do we have to do to get this problem fixed quickly? 

Mr. BLACK. I think working together with the Committee on this 

bill and other things or in different ways. And it is definitely, it is 

not that there isn’t a concern there to address this. Our Bureau of 

Indian Education staff is working very hard to try and address a 

number of these issues out there. There are some challenges in collecting data. As I said, it is a voluntary program. There are a number of things we need to work on. 

Senator DAINES. I know this Committee would be more than 

happy, what do we need to break that barrier down? That is what 

this legislation is for, to try and correct this gap that is happening. 

We have students who aren’t getting the resources they should be 

getting because we have inaccurate data. 

Mr. BLACK. Right. 

Senator DAINES. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Daines. Senator Heitkamp? 

Senator HEITKAMP. Thank you, Mr. Chairman. First, let me express my gratitude, Chairman Trudell, for your service to our 

Country. I conduct, every year, a Native American Veterans Summit, and hear some of those same concerns that you expressed 

today. It is almost tragic that not only do you have a treaty right 

but also a right that was earned in service to this Country and you 

have people begging for services. 

So my great apologies for that. I know how critically important 

making sure that our veterans are taken care of is, not only to all 

of us, but certainly to the Native American population in my State. 

So thank you for your testimony. 

I want to turn to the Johnson-O’Malley student count. Mr. Black, 

I will tell you that Senator Lankford’s comments and then building 

on that, Senator Daines’ comments, and really building on kind of 

an intent of this bill, is to try and figure out how many people are 

out there, especially children. And I want to make this point, everybody is talking about cultural services. In North Dakota, these 

funds are used to buy pens and paper. Foundational kinds of input 

for children whose families couldn’t otherwise afford it. 

If we are truly going to do what we need to do in Indian education or in Indian health care, we need to have data. We need to 

41 

know how many people are out there, what kinds of services they 

need, where we are failing in providing services and how we can 

improve programs by eliminating fraud, waste and abuse and duplication. Streamlining what we need to do but then making sure 

that we know where we are falling short. We can’t do that if we 

are cavalier about counts. And I know that you know this. And I 

do appreciate your testimony supporting the bill with some modifications. 

But it speaks to a broader issue here, which is that, as I have 

said in the past, way too often we silo Indian programs, whether 

it is Indian education, Indian health care, Indian housing. To that 

one child who is in school, they don’t think about, oh, well, that is 

what BIE is doing for me and this is what Indian Health is doing 

for me and this is what NAHASDA is supposed to be doing for me. 

They think about their condition today. 

This count is important not only for the Johnson-O’Malley program, but it is important to understand where these children are 

falling through the gaps. Because we know that Native children, 

just from what we know, are probably the most challenged ethnic 

group in the Country in terms of their services. 

So I want to thank you for your testimony, but I also want to 

impress upon you the need to have, I think, a broader commitment 

to responding to concerns, especially those of us on this Committee 

who want to help, who want to better understand what are the 

metrics. 

Obviously, getting back to this contractor concern, because it 

seems to me that your evaluation of your power may come from 

this program being so-called voluntary. But obviously, sending out 

something more than, here is the website, fill in the gaps, might 

be helpful, even if it is voluntary. So what have you done beyond 

saying, oh, the spreadsheet is up, fill in the gaps, what have you 

done beyond that to encourage contractors to comply? 

Mr. BLACK. I think the Bureau of Indian Education made a fairly 

broad sweep of letting everybody know that we were doing these 

counts and the value of it through Federal Register notices, Dear 

Tribal Leader letters, reaching out to the National Indian education Association and other large national organizations serving 

Indian students, to try and get the word out that we were trying 

to collect all this data to get updated information. 

Now, I think some of the things that we have come up with as 

far as what might have happened and what has affected our rate 

is, some tribes and other organizations felt that they had their 

1996 count in and that was good enough, that the 2012 count could 

potentially cost them funding if their student counts have gone 

down. So I think there may have been some hesitancy to respond 

based on some of those factors. I think we really need to work with 

everybody. 

I know the Indian Education folks are working really hard to 

evaluate what happened and how we can improve on this, and 

what we can do to try and get better counts moving into the future. 

Senator HEITKAMP. I have additional questions, but I will reserve 

them for the second round. 

The CHAIRMAN. Thank you, Senator Heitkamp. Senator Tester? 

42 

Senator TESTER. I am just going to follow up on where Senator 

Heitkamp was. I am assuming that you are going to try to do this 

student count again in 2016, is that correct? 

Mr. BLACK. That I don’t know. I will have to get back to you on 

that, Senator. I am not sure where they are. 

Senator TESTER. So let’s assume you are. What would you do differently than the last two counts, if in fact you have folk who don’t 

want to report because they are afraid their numbers are going to 

go down? If we are going to get accurate numbers, which I think 

is critically important, and I applaud the sponsors of this legislation for doing that, what are you going to do differently to get the 

info? 

Mr. BLACK. I think it would be working really closely with all the 

different groups that are out there. There again, even a larger effort to get the word out that this is critical to the JOM program 

to ensure we are providing services to all the eligible students. 

Senator TESTER. And the numbers are good, but what is the impact of getting the numbers correct if the funding stays the same? 

Mr. BLACK. The impact would be basically that you would get 

less dollars per student. 

Senator TESTER. Right. Okay. Your testimony, Mr. Black, your 

testimony stated that Department undertook various forms of tribal consultation during the last two count update attempts. The testimony of Ms. Mann says that the outreach was very limited to one 

letter and one last-minute online announcement posted right before 

the due date. 

I have two questions. Number one is, is here testimony correct? 

And if it is, is that the way we do consultation? 

Mr. BLACK. No, my understanding is these were in-person consultations, the seven that we did. There might have been a couple 

of telephonic consultations in there. I would have to get back to you 

on the exact. 

Senator TESTER. Okay. There are over 100 Johnson-O’Malley programs out there? 

Mr. BLACK. My understanding is we have approximately 556 

JOM contractors. 

Senator TESTER. And we did how many consultations? 

Mr. BLACK. Seven. 

Senator TESTER. Is that the kind of ratio we use? That is not 

much percentage-wise. 

Mr. BLACK. Generally, when we do consultations, sir, we try and 

ensure that we reach out to all the affected areas, there may be 

100 contractors within a three-State region. I am just throwing 

numbers out. 

Senator TESTER. Yes. So the seven consultations you did were in 

different regions of the Country? 

Mr. BLACK. Yes, I would have to get you the exact locations, sir. 

Senator TESTER. You got a head nod behind you, so I am assuming that is correct. 

Mr. BLACK. Yes. They might have been combined with other consultations is what he is telling me, yes. 

Senator TESTER. All right. Last hearing, you testified that all 

BIA schools would be inspected this year. Can you give me a time 

line on those inspections? 

43 

Mr. BLACK. Yes, sir. We have a goal to complete all the inspections by August 31st. I got a report here just last week, we are approximately a little over 50 percent of all of our educational and 

detention facilities have been inspected to date. We are on target 

to reach August 31st to have them all inspected. 

Senator TESTER. Any of them in Montana that have been inspected? You have three of them. 

Mr. BLACK. I don’t have the numbers and the exact date in front 

of me. I think at least one of them has so far. I might have to 

verify that. 

Senator TESTER. All right. I would love to know that. 

At one of the last legislative hearings, the Department indicated 

they were looking to develop a comprehensive long-term construction plan to eliminate the backlog in BIE schools. 

Mr. BLACK. Could you repeat that question, sir, I’m sorry? 

Senator TESTER. At one of the last legislative hearings, the Department indicated they were working to develop a comprehensive, 

long-term plan to completely resolve the BIE backlog in construction of schools. Where are you guys at? 

Mr. BLACK. That I will have to get back to you on, sir. 

Senator TESTER. Okay. Mr. Trudell, currently JOM student eligibility is defined in regulation based on tribal membership or a minimum blood quantum. It appears the bill changes that definition. 

How do the Santee Sioux contracts define and estimate the eligible 

student count? 

Mr. TRUDELL. Our tribe contracts for Niobrara school district, 

Santee school district and Sioux City school district. And we have 

to, we count for, by tribal enrollment, regardless of what tribe they 

are enrolled in. Because at Sioux City there is a number of tribes 

and tribal affiliation. So we basically go off their tribal records. 

Senator TESTER. Okay, so it is based on tribal membership rather than blood quantum? 

Mr. TRUDELL. Yes. 

Senator TESTER. Do you know what the blood quantum is required for tribal membership? 

Mr. TRUDELL. Not in all tribes, no. I know that our tribe at one 

time amended our constitution, there was no blood quantum as 

long as a parent was a member of the tribe at the time of your 

birth and you were born while that parent was residing on the reservation. I know that a lot of the tribes are basically not blood 

quantum per se. They are more historical, I guess, in essence to 

that, I don’t know if you are kind of following me. I realize a lot 

of the tribes in Oklahoma are not blood quantum tribes. 

Senator TESTER. So how do you feel about using blood quantum 

as a criteria? 

Mr. TRUDELL. Well, if you want to know your pedigree, it is pretty nice, I guess. But is it mandatory, you are either an Indian or 

you are not an Indian, I guess. I am married to a Yankton Sioux 

and I am a Santee Sioux. 

Senator TESTER. That is a tough combo. 

Mr. TRUDELL. That is a really bad combo. 

[Laughter.] 

Senator TESTER. Let me go to you, Carla, for a second. Let me 

preface this a little bit. The House companion bill, 2842, doesn’t 

44 

make any changes to the definition of eligible Indian student. The 

Senate version does. What we learned during ESEA reauthorization last year was just how controversial funding formula changes 

can be. What does National JOM think about changing the eligibility definition as is in this bill? 

Ms. MANN. Thank you, Senator. The National Johnson-O’Malley 

Association is not seeking any change in the Federal regulations 

regarding the eligibility requirements. 

Senator TESTER. Okay. So you want it left the way it is from an 

eligibility standpoint? 

Ms. MANN. Okay. Why do you think the updates 2012 and 2014 

didn’t work? 

Ms. MANN. I think it was, at the times that they sent out the 

notifications, I think were both bad times of the year. The first notification for 2012 came out in the Federal Register. It came out 

the end of May, I think it was. The majority of the school districts 

are starting to shut down, especially in ranching country. They 

shut down early, usually before Memorial Day. 

The second time that they did the, and the one other thing I 

want to point out, too, a lot of people don’t read the Federal Register or get the updates from the Federal Register. 

Senator TESTER. Right. 

Ms. MANN. In 2014, we inquired as National Johnson-O’Malley 

what the plan was for the student count for that year. That was 

in July. They gave us a letter that was set to be sent out to all 

Dear Tribal Leaders. That was sent out in the middle of July. 

On their website, there was no indication of where you go to be 

able to fill out your members. It was difficult to find. I think that 

has really contributed to the problems in getting those numbers. 

Senator TESTER. So if you were doing it, what is the best time 

of year to do this? 

Ms. MANN. I would do it during the school year. Traditionally, 

the Johnson-O’Malley student count was done the first full week of 

October. By that time, it has kind of settled down as far as enrollment. 

Senator TESTER. What do you mean by traditionally? I am sorry 

I am taking so much time, Mr. Chairman. 

Ms. MANN. When we did our student counts from before, prior 

to 1994, we did them the first full week of October. 

Senator TESTER. Okay, so can I ask you, Mr. Black, because what 

she says makes perfect sense to me, being a former educator. End 

of school is the end of school, people are out the door. Why wasn’t 

it done in the fall? Why wasn’t it changed? 

Mr. BLACK. I don’t have an answer for you, Senator. I am sorry. 

I will have to check with the education folks and find out a little 

bit more on that. I would be happy to get back to you. 

Senator TESTER. So that brings me to my last question, and it 

is for you, Ms. Mann. Has the Department utilized resources like 

your organization, National JOM Association, NCAI, or any of the 

national Indian education groups, any of those folks? Do you believe they have utilized those resources adequately or at all? 

Ms. MANN. The Bureau? 

Senator TESTER. Yes. 

45 

Ms. MANN. They ask them, they notified NIEA. I am not sure if 

they notified NCAI and some of the other groups that support the 

JOM program. 

Senator TESTER. We will go to the horse’s mouth. Did you? 

Mr. BLACK. Somewhere I have a list of the different groups that 

we have reached out to. I know NIEA was one of them. 

Senator TESTER. Okay. 

Mr. BLACK. I will get you a list. 

Senator TESTER. I think it is critically important to utilize those, 

I will just tell you from my perspective, they can do a lot of legwork 

for you. That is part of their job, too, as far as why they were set 

up to help with communication. 

Thank you for holding this hearing, Mr. Chairman, and I want 

to thank you all for your testimony. 

The CHAIRMAN. Thank you, Senator Tester. 

Ms. Mann, just a little follow-up. With all this discussion about 

the consultations, could you kind of clarify some of those things for 

us, what your experience has been, any thoughts you might have? 

Ms. MANN. To be honest, the consultation process is, it is a process where they come out, they ask questions and then we are able 

to give responses. Personally, I don’t like consultation, because if 

they would have listened to the members during the first consultation in 1994, had they listened to Indian Country, then JOM 

wouldn’t have changed, it wouldn’t have had the student count 

freeze. 

So I believe that there are times when consultation may work. 

But I believe for the majority of the time, the mind is usually made 

up of how they were going to proceed, and then they proceed. That 

is mostly my personal opinion. As far as National JOM, we make 

sure that we have members that testify in the different areas of the 

Nation to be able to be there at the consultations. 

The CHAIRMAN. Thank you. 

I want to go to you, Mr. Black. The 2014 student count that was 

submitted to the Bureau of Indian Education by the tribes, tribal 

organizations, public schools, State education forums, identified 

341,126 Indian students that student counts were mandated by 

Congress. The BIE never quite makes the accounting official. So I 

understand that outstanding contracts did not submit the numbers. 

But why was the student count never really verified and made 

official by the Bureau? Is there a reason for that? 

Mr. BLACK. I would have to go back to exactly as to why. I think 

it relates to a lot of the issues I have identified already as not having, ensuring that we have all of the contractors submitted and all 

of the student data. It is kind of hard to verify and ensure that we 

are capturing the whole environment. 

The CHAIRMAN. Mr. Trudell, in your written testimony you talk 

about the burdensome process of completing a financial assessment 

before being seen at the VA, the co-pays that cause an undue financial burden, all the things that you went through. 

One of the hardships you mentioned is travel, and the length of 

time it takes a veteran to travel to the nearest VA hospital. How 

far does a Santee Sioux veteran have to travel in order to be seen 

at a VA facility? I know the distances are great in Wyoming as well 

as where you are in South Dakota. 

46 

Mr. TRUDELL. The closest CBOC in Nebraska is, I believe, 

O’Neill, Nebraska, which is approximately 60 some miles from 

home. The best one in Nebraska close to us is in Norfolk, which 

is 77 miles. And then either to Lincoln or Omaha for major services. We also have the option of going to Wagner, South Dakota, 

which is I think 50 some miles, 53 miles, 55 miles, something of 

that nature, or to Sioux Falls, South Dakota, which is 125 miles. 

Omaha is 100 and - well, actually from my driveway to the VA hospital is 200 miles. 

The CHAIRMAN. Ms. Mann, in your written testimony you mentioned that the Johnson-O’Malley program is the one remaining 

Federal program that puts the program under strict control of a 

local Indian education committee, correct? 

Ms. MANN. Correct. 

The CHAIRMAN. Can you explain the benefits of a local Indian 

education committee or local education committees and the involvement in tribal communities compared to a program that is run out 

of Washington, D.C.? 

Ms. MANN. By having, actually due to Federal regulation, the 

parent committee is the one to plan, implement and evaluate the 

program. As we said, it is the only program that has those Federal 

regulations. The parent committees can decide exactly where they 

want their money to go for their students. 

We have across the Nation a number of different programs. It 

can be like school supplies, like Senator Heitkamp said, it can be 

school supplies, it can be pay-to-play fees, lab fees, it could be Native language programs, it could be culture programs, programs to 

increase attendance. It could be any number of things. That is one 

thing that the parents are able to decide. They can decide where 

they want that money to go for their school district. No other program allows that and allows the parent committee to decide such 

an important program. 

The CHAIRMAN. I was in Bethel, Alaska, a little earlier, a number 

of Senators including members of this Committee, Senator Murkowski, Senator Cantwell and others. We visited a school in a place 

called Oscarville, which is down from Bethel. I took a picture on 

a wall, there was one piece of brown paper towel that you would 

use to wipe your hands, and it was scotch taped on the wall. On 

it somebody had written, remember to use this much paper towel, 

and a dollar sign. The money that you save is spent on student activities, exclamation point, exclamation point. I keep that with me 

as a reminder that every dollar counts in those communities. So 

you are making local decisions, as you just talked about. I think 

sometimes Washington loses sight of how folks really at the local 

level are trying to make every penny count and every penny matters to them. What they don’t spend on paper towels, they can use 

for other activities. 

Senator Heitkamp made comments about school supplies and 

other things. This is real, it is serious, it is vital to education. I 

don’t know if you have additional thoughts on that. 

Ms. MANN. I agree with everything that you say. With a lot of 

States having budget cuts and not being able to provide some of 

the resources that they ordinarily have for their students, it has 

been really critical. That is where JOM, as long as they are not 

47 

supplementing a program in a school district and they can supplant a program, it is very important for them to be able to help 

with their students’ education. The parents are the ones that know 

best what they want for their kids. I know all parents want the 

very best for their kids. But I think that with the Federal regulations that are currently in place, with that ability for them to make 

those decisions, it is really important. By having it in the school 

district, it can help the school in a number of things, like afterschool tutoring, something that the school wouldn’t be able to provide otherwise with budget cuts. 

The CHAIRMAN. Thank you. Senator Heitkamp, a second round? 

Additional questions? 

Senator HEITKAMP. Thank you, Mr. Chairman. I just want to follow up a little bit on definitional issues, which have been raised 

here, and just make sure that we are all on the same page. And 

if we are not, if we have better ideas on how we can do this, that 

we in fact have a conversation. Because this is going to increasingly become a very difficult issue. It is difficult today. But identifying someone as a Native child is going to become increasingly difficult. As the chairman pointed out, every tribe does it differently. 

I know that Mr. Black, you expressed concern about the bill’s 

definition of eligible student, because we used a definition that 

hasn’t been used before, and it was a change from the House bill. 

We included after local Johnson-O’Malley contractors who mentioned that under current regulations, the contractors provide resources and services to children who are descendants in the first 

or second degree of tribal members. I don’t think there is any intention today to try and not count those students. 

Do you think that utilizing the House bill definition from the regulations excludes the children that are already included under JM, 

as you read this bill? 

Mr. BLACK. It is my understanding that that possibility might be 

there, that we would be excluding some children. I will get you a 

more specific answer, though. 

Senator HEITKAMP. Yes. I think it is important, just because we 

aren’t going to solve this issue here. I think it is important that 

we have ongoing discussions and dialogue, because as we work 

through this particular issue, we could be setting down a milestone 

that we don’t want to set down, or be creating yet another definition that would be used in yet another program. But it does demonstrate some of the complexities of what we are probably going to 

go through on the census in terms of getting folks identified, and 

certainly what we go through working with children. 

Ms. Mann, if you have any comment about that, I would appreciate hearing it now. 

Ms. MANN. As I said before, we are not seeking any changes in 

the Federal regulations regarding eligibility. It was a discussion of 

our board that each tribe, through their sovereignty, decides who 

they want as a member of their tribe. If there is a blood degree 

quantum or not a blood degree quantum, that is their decision. We 

didn’t want to go against a decision that could affect certain tribes. 

So I think that we would like to make sure that we continue to 

use the Federal regulations at this point, because of the sovereignty of the individual tribes. 

48 

Senator HEITKAMP. In the school district, especially when we are 

dealing with a Bismarck school district or a Fargo school district, 

that it doesn’t have those, doesn’t understand those nuances, I 

think it becomes very difficult for contractors to know that this student is Ojibwe, that is a different rule than if they are Mandan, 

Hidatsa and Arikara. So those is a complicated issue, but one that 

is only going to get more complicated as time goes on and as we 

see more and more people migrating on and off the reservations 

and on and off Indian Country. 

We will continue to work through this issue and try not to disturb a whole lot of other stuff in the process while we are looking 

at getting a count. 

The CHAIRMAN. Thank you, Senator Heitkamp. Senator Daines? 

Senator DAINES. Thank you, Mr. Chairman. I want to shift gears 

and talk a little bit about health care for Native American veterans. In my home State of Montana, we have one of the highest 

per capita veteran populations in the United States. Tribal members enroll in the military at a higher rate than any other minority. 

We have seen it in Montana, we see it across the Country, that individuals serve as true examples of bravery, of service, of patriotism, there is a reason they are called warriors. 

Unfortunately, when it comes to receiving quality, timely health 

care from Federal agencies, tribal veterans are some of the most 

disenfranchised, especially those who live in rural communities. I 

applaud the work of Senators Thune and Rounds in the Tribal Veterans Health Care Enhancement Act, which will improve coordination of care between Indian Health Service and the VA, as well as 

streamline care for tribal veterans. 

Chairman Trudell, I would like first to thank you for your service 

to our Country. Can you describe some of the challenges you personally have faced in receiving health care as a tribal veteran? 

Mr. TRUDELL. My greatest was with VA, because I didn’t have 

a sick call record to speak of, other than shots and stuff. So it was 

real hard for me to break into VA, even though I served in Vietnam, and Agent Orange almost automatically qualifies you for, 

well, it does automatically qualify you for VA services. 

But I didn’t get a rating until, tendonitis, I have had tendonitis. 

I was rated about 10 percent hearing loss. Then I had some EKGs 

that showed I had had a heart attack over a period of time, a number of them. And couldn’t get a rating on my heart, even though 

ischemic heart is a by-product of Agent Orange. I actually ended 

up having a heart attack in the VA, and that is the only reason 

I got rated, I think. 

So that is my experience. Other people have experienced, there 

are other veterans that are experiencing that. I know the difficulty 

with both, not only the co-pay that Indian Health Service wasn’t 

paying, but also for VA to serve those Vietnam veterans. I can only 

speak for the Vietnam veterans, because that is who I mostly deal 

with. 

But if they do not recognize that in our situations, there were no 

medical people around. If Grandma couldn’t fix it, it didn’t get 

fixed. You didn’t worry about going to a doctor, you didn’t have the 

money to do that, so you didn’t, you just kind of grew up not depending on medical. Even when you get in the Army and it was 

49 

available, if it wasn’t killing you, there was no sense in going to 

see a doctor. 

Therefore, I don’t think I am a unique person, I think that is 

pretty common among Indian veterans, that they didn’t go to sick 

call. So we don’t have a medical record to back up a lot of the 

things that we are saying. With post-traumatic stress, Indian 

Health Service is not, I don’t even think VA is really capable of 

handling all the post-traumatic stress that the veterans are encountering. Some of it, I hid mine very well for 40 years. Then all 

of a sudden, it hits you. 

Senator DAINES. You had shared a story with my office about a 

Native American veteran and the challenges he faced coordinating 

a heart valve insertion. 

Mr. TRUDELL. That is Dave Williams. 

Senator DAINES. Between the IHS and the VA. Would you mind 

sharing that with us? 

Mr. TRUDELL. His name is Dave Williams. I got that confirmed 

yesterday. I had forgotten his name, and I was talking to the office 

yesterday. So I did call back and confirm that. VA did end up paying for that. But there was an argument going on between VA and 

Indian Health Service as to who would pay for his valve replacement. Happened to be in Flandreau, where he lived, with another 

veteran from Flandreau, and his wife, Dave Williams’ wife, called 

us. She asked us if she could visit with us. She was crying because 

her husband was going to die. 

So he came over, and she was just all shook up, because if he 

didn’t get that operation immediately, he would die. The children, 

grandchildren would have no source of parental care or 

grandparental care. We advised them just to go and if it became 

a problem, then Flandreau Santees and the Santee Sioux Nation 

of Nebraska, we’re the same, they just happened to divide some 

time back in the past, but we would join together and we would 

take up his cause and see if we couldn’t get it resolved if it wasn’t 

paid. 

But I understand that VA did pay for it, Indian Health Service 

continued to refuse to pay for it all the way to the very end. 

Senator DAINES. Thank you, Chairman Trudell, and thanks for 

your advocacy for your people. How these costs are covered 

shouldn’t be a question for these heroes any more, is the bottom 

line. 

I look forward to seeing the Tribal Veterans Health Care Enhancement Act move through the legislative process. Thank you. 

The CHAIRMAN. Thank you, Senator Daines. 

Thank you to each and every one of you for being here today. I 

see no more questions. Members may submit written questions for 

the record. I hope that you will be able to respond to them. The 

hearing record will remain open for the next two weeks. I want to 

thank all the witnesses for being here today and for your testimony. Thank you. 

This hearing is adjourned. 

[Whereupon, at 3:48 p.m., the hearing was adjourned.] 

(51) 

A P P E N D I X 

PREPARED STATEMENT OF THE SOUTHCENTRAL FOUNDATION (SCF) 

Thank you for the opportunity to submit testimony on behalf of the Southcentral 

Foundation (SCF) and the 150,000 Native American people we serve. SCF is a tribal 

organization that compacts with the Secretary of Health and Human Services under 

Title V of the Indian Self-Determination Act (ISDA) to provide primary care services 

to Alaska Native patients within the Anchorage area and throughout the region. 

SCF acts pursuant to tribal authority granted by Cook Inlet Region, Inc., an Alaska 

Native regional corporation designated by Congress as an Indian Tribe for contracting purposes under the ISDA. 

For more than 25 years, SCF has carried out Indian Health Service (IHS) programs under ISDA agreements. SCF provides medical, dental, optometry, behavioral 

health, and substance abuse treatment services to over 52,000 Alaska Native and 

American Indian beneficiaries living within the Municipality of Anchorage, the 

Matanuska-Susitna Borough to the north, and nearby villages. SCF also provides 

services to an additional 13,000 residents of 55 Alaska villages covering an area exceeding 100,000 square miles. Finally, SCF provides statewide tertiary OB/GYN and 

pediatric services for approximately 150,000 Alaska Native people. To do all this, 

SCF employs 2,000 people. 

S. 2417 proposes to amend the Indian Health Care Improvement Act to allow the 

Indian Health Service to cover the cost of a copayment of an Alaska Native or American Indian veteran receiving medical care or services from the Department of Veterans Affairs through the IHS purchased and referred care (PRC) program. Although both federal agencies provide health care services to certain qualified individuals, the VA differs from IHS in that some services require a co-payment by the 

eligible veteran. The IHS does not require a co-payment for services provided at IHS 

or IHS funded facilities, nor does it require a co-payment for purchased or referred 

care (PRC) services provided. This bill attempts to address an issue that can arise 

in instances where IHS cannot provide a service or treatment and the VA or a VA 

provider is able to provide that service or treatment, and the Alaska Native or 

American Indian veteran ends up with the responsibility of the co-pay. If the Alaska 

Native or American Indian veteran had been able to access the service or treatment 

through the IHS in the first instance, he or she would not have been required to 

pay that co-pay. 

In considering this bill, SCF would like the Committee to be aware of the unique 

nature of the interactions between SCF and the VA in providing for the healthcare 

needs of veterans in our service area. Because the VA has not been able to sufficiently provide healthcare services to veterans in rural areas like Alaska, many veterans’ healthcare needs are severely underserved. SCF serves over 1,000 non-Native 

veterans in the Matanuska-Susitna Valley, through a reimbursement MOU with the 

VA. Since 2012 when SCF entered this MOU, we have been able to make great 

strides in addressing this gap in healthcare delivery. In addition, we firmly believe—and our patients would affirm, we think—that the quality of our healthcare 

delivery greatly exceeds that of the VA in our region. We have been extremely successful in growing our system and diversifying our array of available health treatment so that we are able to provide most of the specialty medical needs of our clients. Conversely, the purpose of the IHS purchased and referred care line item is 

to pay for specialty services or treatment that are not available through IHS facilities or tribally contracted IHS facilities. Therefore, we do not believe that SCF 

would utilize our PRC program to pay for the co-payments authorized by this proposed bill: the veterans in our area have access to more comprehensive and higher 

quality services with shorter wait times by receiving services at SCF facilities rather 

than through the VA. 

Although we recognize that the situation in many areas of the country may make 

it appropriate for IHS to pay for VA services, and for IHS to cover the resulting 

co-pays for Indian and Alaska Native veterans in those cases, it is important for 

the Committee to ensure that this bill would not require SCF to use our limited 

52 

1 USET SPF member Tribal Nations include: Alabama-Coushatta Tribe of Texas (TX), Aroostook Band of Micmac Indians (ME), Catawba Indian Nation (SC), Cayuga Nation (NY), 

Chitimacha Tribe of Louisiana (LA), Coushatta Tribe of Louisiana (LA), Eastern Band of Cherokee Indians (NC), Houlton Band of Maliseet Indians (ME), Jena Band of Choctaw Indians (LA), 

Mashantucket Pequot Indian Tribe (CT), Mashpee Wampanoag Tribe (MA), Miccosukee Tribe 

of Indians of Florida (FL), Mississippi Band of Choctaw Indians (MS), Mohegan Tribe of Indians 

of Connecticut (CT), Narragansett Indian Tribe (RI), Oneida Indian Nation (NY), Passamaquoddy Tribe at Indian Township (ME), Passamaquoddy Tribe at Pleasant Point (ME), Penobscot Indian Nation (ME), Poarch Band of Creek Indians (AL), Saint Regis Mohawk Tribe (NY), 

Seminole Tribe of Florida (FL), Seneca Nation of Indians (NY), Shinnecock Indian Nation (NY), 

Tunica-Biloxi Tribe of Louisiana (LA), and the Wampanoag Tribe of Gay Head (Aquinnah) (MA). 

PRC allocation to pay for services at VA facilities rather than our own. Also, we 

think that there should be a greater focus on building a stronger tribal health care 

delivery system for all Alaska Native and American Indian people. While this bill 

would help the VA system, it would not greatly help the tribal health care delivery 

system for Alaska Native and American Indian people. 

PREPARED STATEMENT OF UNITED SOUTH AND EASTERN TRIBES, INC. 

The United South and Eastern Tribes Sovereignty Protection Fund (USET SPF) 

is pleased to provide the Senate Committee on Indian Affairs (SCIA) with the following testimony for the record of its May 11th legislative hearing on S. 2417 and 

S. 2842. This testimony concerns S. 2417, the Tribal Veterans Health Care Enhancement Act, only. USET SPF fully supports the goal of S. 2417, which is to ensure 

that American Indian and Alaska Native (AI/AN) veterans receive the care to which 

they are entitled without incurring debt. However, in light of the federal government’s unique trust responsibility to AI/AN people, including veterans, this should 

be accomplished via the elimination of cost-sharing for AI/AN served at VA facilities. 

USET SPF is a non-profit, inter-tribal organization representing 26 federally recognized Tribal Nations from Texas across to Florida and up to Maine. 1 Both individually, as well as collectively through USET SPF, our member Tribal Nations work 

to improve health care services for American Indians. Our member Tribal Nations 

operate in the Nashville Area of the Indian Health Service (IHS), which contains 

36 IHS and Tribal health care facilities. Our citizens receive health care services 

both directly at IHS facilities, as well as in Tribally-Operated facilities operated 

under contracts with IHS pursuant to the Indian Self-Determination and Education 

Assistance Act (ISDEAA), P.L. 93–638. 

USET SPF recognizes that S. 2417 seeks to address the harmful financial impacts 

of unpaid VA balances accrued by AI/AN Veterans who have been referred to the 

Department of Veterans Affairs (VA) health system by Indian health clinics. Whether delivered through the IHS or the VA, AI/AN veterans have pre-paid for this care, 

both through the cession of Tribal homelands and the defense of our nation. With 

some AI/AN veterans facing collection over balances, we agree that there is a critical 

need to ensure that our AI/AN veterans do not incur debt as a result of accessing 

care at the VA. 

AI/AN veterans, who may suffer from chronic conditions or injuries sustained as 

a result of their service, often require more specialized care than what underfunded 

Indian Health clinics are able to provide and are referred to a VA facilities. Additionally, a VA facility may be an AI/AN veteran’s provider of choice. Regardless, VA 

is a vital access point for AI/AN veterans, who continue to serve in the military at 

higher rates per capita than any other group in this nation. It is an enormous disservice to them to require out-of-pocket payments simply because they receive care 

outside the IHS. However, IHS and Tribally-operated health clinics, which Congress 

funds at only 60 percent of demonstrated financial need, should not be compelled 

to pay the VA for the cost of services delivered to AI/AN veterans. While we are 

aware that this legislation seeks to correct a situation that occurred the Great 

Plains Region of the IHS, we are concerned that it would apply to all IHS Areas. 

In 2014, IHS’ average expenditure per patient was just $3,107 compared to $7,036 

at the VA. Cost shifting from VA to IHS is not an efficient use of federal resources 

and could exaggerate this deep disparity, negatively impacting the delivery care 

within the Indian Health System. Further, the federal government’s trust responsibility to AI/AN does not end with the IHS. While we note that the bill contains provisions seeking to ensure that services to all IHS beneficiaries are not diminished 

under this new authority, USET SPF contends that the Indian Health System and 

AI/AN veterans are best served through a waiver of cost-sharing entirely. 

53 

Congress has previously recognized the inconsistencies between the federal trust 

responsibility to provide health care to AI/AN and the assessment of premiums and 

cost-sharing via federal health programs. In 2009, Congress passed the American 

Recovery and Reinvestment Act, which eliminated premiums and cost-sharing for 

AI/AN patients when accessing services via Medicaid and the Children’s Health Insurance Program. This provision avoids the assessment of payments to individual 

AI/AN without impacting already insufficient IHS funds. And it upholds the federal 

trust responsibility by ensuring that care provided to AI/AN continues to be delivered at no cost. With this in mind, we call for this policy to be extended to all federal health care programs and facilities, including the VA. 

Although USET SPF supports the intent of S. 2417, we cannot support it in its 

current form. We do support the opportunity for each IHS Area to determine how 

to best serve its citizens. However, S. 2417 applies to all IHS Areas and merely 

shifts the cost of care for AI/AN veterans from the VA to a severely underfunded 

IHS. Although it diminishes individual AI/AN veteran liability for cost-sharing, it 

remains unclear whether it will have a net positive impact on the Indian health system. In order for the United States government to more effectively meet its sacred 

responsibility to AI/AN veterans, we recommend the advancement of legislation 

eliminating cost-sharing for all services provided to AI/AN veterans at VA facilities. 

We thank the Committee for drawing attention to this important issue and look forward to partnering on a solution that reflects both the federal trust responsibility 

and the current limitations of the IHS budget. 

NATIONAL INDIAN EDUCATION ASSOCIATION

Washington, DC, May 24, 2016 

Hon. John Barrasso, Chairman, 

Hon. Jon Tester, Vice Chairman, 

Committee on Indian Affairs, 

United States Senate, 

Washington, DC. 

RE: SUPPORT FOR THE JOHNSON-O’MALLEY SUPPLEMENTAL INDIAN EDUCATION

PROGRAM MODERNIZATION ACT (S. 2842) 

Dear Chairman Barrasso and Vice Chairman Tester: 

On behalf of the National Indian Education Association (NIEA), the oldest and 

largest Native organization representing over 2,500 Native educators, students, 

teachers, parents, and tribal leaders, I am writing to express our support for the 

reauthorization of the Johnson-O’Malley Supplemental Indian Education Program 

Modernization Act (S. 2842). This bicameral effort builds upon Congress’ focus on 

supporting Native education in the 21st century. S. 2842 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. 

In 1995, the BIA conducted a JOM student count for purposes of providing distribution allocation information of JOM programmatic funds. The 1995 JOM student 

count listed 271,884 students. In 2010, the U.S. Census Bureau reported 798,486 

American Indian and Alaska Native students in the JOM-eligible age group, illustrating a substantial portion of unserved students. Moreover, the National JohnsonO’Malley (NJOM) estimates a high of $125 per students to a FY 2015 value of 

$68.08 per student. This is due to the fact that JOM contractors have been forced 

to provide services for an ever increasing population with the same or less funding. 

FY 2011–2012 budget sequestration exacerbated the funding levels by reducing 

overall JOM funding each year. 

NIEA membership has shown their support for updating the JOM student count 

along with funding that reflects this new number. NIEA Resolution 2006–17 highlights the dire need of the JOM program as supplementary aid and strongly opposed 

the FY 2007 BIA budget request to eliminate JOM grants. Furthermore, NIEA Resolution 2014–19, which requested support for utilizing U.S. Census data for updating the JOM student count, remains a standing request of our organization. As 

such, NIEA supports the Johnson-O’Malley Supplemental Indian Education Program Modernization Act. 

54 

NIEA appreciates your hard work on funding critical educational programs for 

American Indian, Alaska Native, and Native Hawaiian students. We are asking for 

your continued support in ensuring that these programs are protected by funding 

them at the levels already approved by Congress. 

Thank you, 

PATRICIA WHITEFOOT. 

Attachments 

NATIONAL INDIAN EDUCATION ASSOCIATION RESOLUTION #06–17 

TITLE: TO SUPPORT THE CONTINUATION OF JOHNSON O’MALLEY FUNDING

WHEREAS, the National Indian Education Association (NIEA) was established 

in 1969 for the purpose of advocating, planning, and promoting the unique and special educational needs of American Indians, Alaska Natives, and Native Hawaiians; 

and 

WHEREAS, NIEA as the largest national Indian organization of American Indians, Alaska Native, and Native Hawaiian educators, administrators, parents, and 

students in the United States, provides a forum to discuss and act upon issues affecting the education of Indian and Native people; and 

WHEREAS, through its unique relationship with Indian nations and tribes, the 

federal government has established programs and resources to meet the educational 

needs of American Indians, Alaska Native, and Native Hawaiians, residing on and 

off their reserved or non-reserved homelands; and 

WHEREAS, Native American populations have made significant advances in 

achieving academic success as demonstrated by a study conducted in 2005 by the 

National Center on Education Statistics; and 

WHEREAS, Native American students have attained high school diplomas, as of 

March 2003, exceed the total of all other racial and ethnic groups by 3.2 percent 

except African Americans; and 

WHEREAS, the negation of the advancement made by Native American populations through the invalidated references to the effect that the Johnson O’Malley 

grants under the Tribal Priority Allocations are duplicative of other Federal and 

state assistance programs and do not address a focused goal for academic achievement; and 

WHEREAS, the lack of evidence to prove that the elimination of these grants will 

allow the BIA to focus its resources on the requirements of the Bureau-funded 

school system, while also reducing redundancy with other Federal programs; and 

WHEREAS, the U.S. House of Representative admonished the Bush Administration in 2006 for justifying its proposed termination of Johnson O’Malley because of 

duplication of other federally supported programs such as Title VII of No Child Left 

Behind Act of 2002, hence substantiating that no such duplication exists; and 

WHEREAS, the elimination of the Johnson O’Malley programs hold no guarantees that the Indian Self Determination Act of 1975 and will continue to be enforced 

according to the purpose of the regulations established in Part 273 of Public Law 

93–638; and 

WHEREAS, Indian Self Determination and Education Assistance Act were set 

forth to ensure the maximum participation of Indian populations in the development 

of programs for eligible Indian students; and 

WHEREAS, the Snyder Act of 1921 is the primary authority that governs the implementation of Indian education programs; and 

WHEREAS, the Johnson O’Malley Act of 1934 program is a supplementary aid 

program geared to offset the financial deficit of unmet extraordinary and exceptional 

cases of need and that the federal government will bear the added expense for services to the Indian population in collaboration with state public school districts; and 

NOW THEREFORE BE IT RESOLVED, that NIEA does hereby strongly oppose the FY 2007 BIA budget request that proposes the elimination of Johnson 

O’Malley (JOM) grants; and 

BE IT FURTHER RESOLVED, that NIEA call upon Congress and the Administration to restore the national JOM budget to the FY 1994 allocation of $24 million 

dollars with the current JOM student count conducted under the Government Accountability Office to reinstate a funding formula that will ensure the equitable distribution of funding to address the specialized and unique educational needs that 

fall outside the school’s responsibilities. 

CERTIFICATION 

I do hereby certify that the following resolution was dully considered and passed 

by the NIEA Board of Directors on November 30, 2006 at which a quorum was 

present. 

55 

Dr. Verlie Ann Malina Wright, President (2006–07) 

NATIONAL INDIAN EDUCATION ASSOCIATION RESOLUTION 2014–19 

TITLE: SUPPORT UTILIZING U.S. CENSUS DATA FOR UPDATING THE JOHNSON O’MALLEY

STUDENT COUNT

WHEREAS, we, the members of the National Indian Education Association 

(NIEA) of the United States, invoking the divine blessing of the Creator upon our 

efforts and purposes, in order to preserve for ourselves and our descendants the inherent sovereign rights of our Indian nations, rights secured under Indian treaties 

and agreements with the United States, and all other rights and benefits to which 

we are entitled under the laws and Constitution of the United States, to enlighten 

the public toward a better understanding of the Indian people, to preserve Indian 

cultural values, and otherwise promote the health, safety and welfare of the Indian 

people, do hereby establish and submit the following resolution; and 

WHEREAS, the National Indian Education Association was incorporated in 1970 

and advances comprehensive educational opportunities for American Indians, Alaska Natives, and Native Hawaiians throughout the United States.; and 

WHEREAS, the National Johnson-O’Malley Association (NJOMA) is the elected 

advocate representing students, ages 3 through high school, who are enrolled or eligible for enrollment in federally-recognized tribes, not attending or served by Bureau of Indian Education (BIE) schools, and currently being served from respective 

tribal jurisdiction boundaries and service areas; and 

WHEREAS, NIEA and NJOMA have established a consensus that the academic, 

social, and economic well-being of our Native students are our highest priority, regardless of where they attend school; and 

WHEREAS, according to 25 CFR 273.1, the purpose of the Johnson-O’Malley 

(JOM) program is to meet the specialized and unique educational needs of Indian 

children attending public and some tribal schools through the use of supplemental 

education programs, and 

WHEREAS, the BIE completed an inaccurate and unofficial student count in 

2012 resulting in the continued use of the outdated certified student count of 

278,000 from 1995; and 

WHEREAS, according to the U.S. Census Bureau, there were 798,486 American 

Indian and Alaska Native students (alone) in the JOM-eligible age group, and 

1,469,722 American Indian and Alaska Native students (alone or in any combination) in 2010, forcing more than 400,000 Native students to attend school with 

unmet needs; and Census data is regularly collected, reliable information upon 

which the federal government regularly relies on for many other programs, including tribal; and 

WHEREAS, without continued and accurately assumed levels of annual congressional funding, JOM programs that foster specialized, culturally-sensitive and 

unique educational programs will decrease in its ability to serve the true number 

of Native students eligible for JOM assistance; and 

WHEREAS, federal agencies continue to forego providing accurate and timely 

JOM student count information to the United States Congress nor are sufficient 

steps being taken to guarantee the full participation of all eligible Native students 

and the public schools in which they attend; 

NOW THEREFORE BE IT RESOLVED, that NIEA joins the NJOMA, the National Congress of American Indians (NCAI), the United South and Eastern Tribes 

(USET), and the Tribal Education Departments National Association (TEDNA) in 

support of efforts to use U.S. census data for a student count for the JOM program 

and for funding level determinations; and 

BE IT FURTHER RESOLVED, that NIEA calls for the use of a uniform allocation funding formula based on U.S. census data after it has determined the most 

accurate depiction possible of the JOM-eligible student population; and 

BE IT FURTHER RESOLVED, that NIEA welcomes the opportunity to work 

with NJOMA, NCAI, USET, TEDNA, and other stakeholders in developing and enacting federal policy and regulatory measures to modernize and position the Supplemental Education Program (known as the Johnson-O’Malley program) as a sustainable program whose future funding levels are adequate for assist all eligible students achieve academically so they may become the future leaders of tribal nations 

and promote positive academic, social, and economic changes for future generations; 

and 

BE IT FINALLY RESOLVED, that NIEA recognizes the immediate nature and 

timely need to address this issue and therefore will officially request within two 

56 

weeks immediate action pertaining to this issue within the Department of the Interior, the Bureau of Indian Education, and the United States Congress; and 

CERTIFICATION 

I do hereby certify that the following resolution was dully considered and passed 

by the National Indian Education Association on October 18, 2014 at which time 

a quorum of the membership was present. 

Melvin Monette, President. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. JON TESTER TO

MICHAEL S. BLACK

Question 1. Will this Resource Center provide technical assistance and administrative oversight previously provided by the JOM Director? 

Answer. Yes, the new Johnson-O’Malley Center will provide support and technical 

assistance to all tribal Johnson-O’Malley contractors and will share best practices 

regarding the use of JOM funds. 

While the new Johnson-O’Malley Center works directly with JOM contractors, the 

national JOM coordinator in DC will provide policy direction to the Center, will support the JOM program within the Department and will liaise with Congress. 

During the consultations held throughout the country, the Bureau of Indian Education heard from tribal leaders of their continued deep interest in the JOM program. In particular, during the BIE’s consultations in Oklahoma, the BIE learned 

that tribal leaders were mostly concerned about Native youth attending public 

schools rather than BIE-funded schools (there are only three BIE-funded schools 

and two dormitories in Oklahoma). Because of these concerns, and the need for increased technical assistance regarding the JOM program, BIE proposes to transform 

the BIE Education Line Office in Oklahoma City into a national Johnson-O’Malley 

Center. BIE chose the Oklahoma City ELO because that office already performs a 

significant amount of evaluation and training for 148 tribal JOM contractors, as a 

result of the high concentration of JOM contracts in Oklahoma. 

Question 2. Is this Johnson-O’Malley Resource center currently in operation and, 

if not, when will it be? 

Answer. The new Johnson-O’Malley Center will replace the existing Oklahoma 

City ELO early next year. 

Question 3. What improvements to the operation of the JOM program should contractors, tribes and Native families expect to see once this Resource Center is operational? 

Answer. The improvements contractors, tribes, and Native families can expect to 

see with the addition of the new Johnson-O’Malley Center are dedicated contracting 

assistance from staff and timely responses to requests for technical assistance. 

Question 4. Is it correct that the eligibility change was made as the result of the 

Zarr v. Barlow decision or is there another reason? 

Answer. While Zarr v. Barlow, 800 F.2d 1484 (9th Cir. 1986), is instructive, BIE 

made the student eligibility change in response to a more recent case, Nevada 

Urban Indians v. United States, U.S. Dist. Court for the District of Nevada, CV– 

N-90–238–BRT, (Sept 12, 1990)(The Sept 12, 1990 Order Granting Preliminary Injunction and the Nov. 1, 1990 Stipulation and Order attached). Since settling that 

case, BIE has considered that students who are members of a federally recognized 

tribe or who are 1⁄4 or more degree Indian blood can be eligible for JOM services. 

BIE’s intent is to have eligibility requirements for all BIE-funded programs that are 

consistent with Congressional intent for the program, which is to authorize contracts for the education of eligible Indian students enrolled in public schools and 

previously private schools. 

Question 5. What steps did BIE undertake to inform all JOM contractors of this 

change? If possible, please provide a copy of the original memorandum where this 

change was outlined and any additional materials advertising the update to contracts. 

Answer. As indicated in the response to the previous question, BIE issued a 

memorandum explaining the new eligibility requirements and the reason for the 

change on June 4, 1991. The original memorandum is attached, as are copies of the 

recent ‘‘Dear Tribal Leader’’ letters, a copy of a memo reiterating the eligibility 

change, and pages from various handbooks, PowerPoint presentations, and Federal 

Register notices that reference the eligibility requirement of tribal membership ‘‘or’’ 

1⁄4 degree. In addition, BIE has plans to update the outdated regulation in the near 

future as reflected in the Unified Agenda. 

57 

Question 6. Is the Department confident that all JOM contractors are currently 

aware of this change away from the regulatory definition of eligibility, and is the 

Department aware of any variation in how JOM contractors might interpret student 

eligibility? 

Answer. The Department has announced through multiple communications the 

student eligibility requirements, including letters, memorandums, emails, handbooks, oral and video presentations, and public announcements. However, it is always a possibility that the appropriate individuals have not have received communications after they have been disseminated. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. HEIDI HEITKAMP TO

MICHAEL S. BLACK

Question 1. According to your testimony, the Department notes that one provision 

of S. 2842 raises constitutional concerns under the Recommendation Clause. Could 

you please specify the Department’s preference for addressing this concern? 

Answer. The Administration’s concern is that section 7(d)(4)(A) of the Johnson 

O’Malley Act, as added by section 2 of S. 2842 would require the Secretary to recommend budget legislation and, furthermore, would constrain the Secretary’s discretion in what to recommend, regardless of whether the President wishes to recommend any legislation as part of his legislative program. We would recommend 

that this be addressed by either changing the word ‘‘shall’’ to ‘‘should’’ in section 

7(d)(4)(A)) or otherwise making the requirement discretionary by inserting ‘‘as appropriate’’ after ‘‘legislation in section 7(d)(4)(A). 

Question 2. I would appreciate the Department elaborating on Mr. Black’s verbal 

testimony from May 11, 2016 hearing in regards to potential for students outside 

this eligibility criteria being served under JOM. To what extent are contractors providing JOM services to students eligible under Elementary and Secondary Education Act Title VI programmatic funding—such as children who are descendants, 

in the first or second degree, of tribal members—instead of using the JOM eligibility 

criteria? 

Answer. The number is unknown. 25 CFR Sec. 273.32 allows non-eligible students 

to participate in a JOM program, but JOM funds must be prorated to cover the participation of only eligible Indian students, except where the participation of non-eligible students is so incidental as to be de minimis. Such de minimis participation 

must be approved by the local program’s Indian Education Committee. 

For comparison, 448 possible JOM contractors submitted a JOM count of 341,126 

in 2014. For FY 2016, the Department of Education provided 1,293 Indian Education Formula Grants serving 468,719 students. For Title VI Indian Education formula grants, grantees can count, in addition to members of Federally-recognized 

tribes, or descendants of such members, in the first or second degree, as well as 

members of State-recognized tribes. 

Question 3. If the bill utilizes language as currently written in 25 Section 273.12 

of the Code of Federal Regulations, would this definition exclude students currently 

served by JOM contractors? How many students could potentially be excluded or 

face disruption in JOM services? 

Answer. Yes, but the number is unknown. The eligibility requirement listed below 

has been provided contractors since 1991. All students eligible for the current JOM 

program were born after 1991. Guidance provided to the public when the request 

for both the 2012 and the 2014 JOM student counts were issued included this language: ‘‘Eligible JOM students are Indian students, age 3 through grade 12 enrolled 

in public schools, except those enrolled in Bureau sectarian or operated schools. 

Such students must be (1) a member of a Tribe or (2) at least 1⁄4 or more degree 

of Indian blood and recognized by the Secretary of the Interior as eligible for BIE 

services.’’ 

*Response to the following questions was not available at the time this hearing 

went to print* 

Questions for the Record to Roger Trudell submitted by Senator Tester: 

S. 2417 would make allowances for the IHS to cover the cost of these copays at 

VA facilities. As a member of both the Veterans Affairs Committee and the Indian 

Affairs Committee, I have heard how many times how stretched resources can be 

at VA and IHS facilities. However, the Federal Government’s treaty and trust responsibility does not end at the IHS. 

58 

Question. Given the limited resources of both health care systems and the trust 

and treaty responsibilities of the entire Federal Government, would it make more 

sense to exempt American Indian and Alaska Native veterans from copays at the 

VA? 

Æ