II 

115TH CONGRESS 

1ST SESSION S. 943 

To direct the Secretary of the Interior to conduct an accurate comprehensive 

student count for the purposes of calculating formula allocations for 

programs under the Johnson-O’Malley Act, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

APRIL 26, 2017 

Ms. HEITKAMP (for herself, Mr. LANKFORD, and Mr. DAINES) introduced the 

following bill; which was read twice and referred to the Committee on Indian Affairs 

A BILL 

To direct the Secretary of the Interior to conduct an accurate 

comprehensive student count for the purposes of calculating formula allocations for programs under the Johnson-O’Malley Act, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Johnson-O’Malley Sup5 plemental Indian Education Program Modernization Act’’. 


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1 SEC. 2. INDIAN EDUCATION PROGRAM STUDENT COUNT 

2 UPDATE. 

3 The Act of April 16, 1934 (25 U.S.C. 5342 et seq.) 

4 (commonly referred to as the Johnson-O’Malley Act), is 

5 amended by adding at the end the following: 

6 ‘‘SEC. 7. COMPUTATION OF STUDENT COUNT. 

7 ‘‘(a) DEFINITIONS.—For the purposes of this Act, 

8 the following definitions apply: 

9 ‘‘(1) CONTRACTING PARTY.—The term ‘con10 tracting party’ means an entity that has a contract 

11 through a program authorized under this Act. 

12 ‘‘(2) EXISTING CONTRACTING PARTY.—The 

13 term ‘existing contracting party’ means a con14 tracting party that has a contract under this Act 

15 that is in effect on the date of enactment of the 

16 JOM Modernization Act. 

17 ‘‘(3) JOM MODERNIZATION ACT.—The term 

18 ‘JOM Modernization Act’ means the Johnson19 O’Malley Supplemental Indian Education Program 

20 Modernization Act. 

21 ‘‘(4) NEW APPLICANT.—The term ‘new appli22 cant’ means an entity that applies to participate in 

23 a contract under this Act after the date of enact24 ment of the JOM Modernization Act but not later 

25 than 240 days after such date of enactment. 


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1 ‘‘(5) NEW CONTRACTING PARTY.—The term 

2 ‘new contracting party’ means an entity that enters 

3 into a contract under this Act after the date of en4 actment of the JOM Modernization Act. 

5 ‘‘(6) SECRETARY.—The term ‘Secretary’ means 

6 the Secretary of the Interior. 

7 ‘‘(b) IN GENERAL.—Except as provided in subsection 

8 (f) and pursuant to subsection (g), the Secretary shall de9 termine the amount that a contracting party receives 

10 under such contract for any fiscal year in accordance 

11 with— 

12 ‘‘(1) the distribution formula described in sec13 tion 273.31 of title 25, Code of Federal Regulations 

14 (as in effect on the day before the date of enactment 

15 of the JOM Modernization Act) and future itera16 tions of the formula as determined by the Bureau of 

17 Indian Education in consultation with Indian tribes 

18 and contracting parties; and 

19 ‘‘(2) the number of eligible Indian students 

20 served or potentially served by the contracting party, 

21 as determined by the Secretary in accordance with 

22 subsection (c). 

23 ‘‘(c) DETERMINATION OF THE NUMBER OF ELIGIBLE

24 INDIAN STUDENTS.— 


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1 ‘‘(1) INITIAL DETERMINATIONS FOR EXISTING

2 CONTRACTING PARTIES.— 

3 ‘‘(A) IN GENERAL.—The Secretary shall 

4 make an initial determination of the number of 

5 eligible Indian students served by each existing 

6 contracting party in accordance with subpara7 graph (B). 

8 ‘‘(B) PROCESS FOR MAKING THE INITIAL

9 DETERMINATION.— 

10 ‘‘(i) PRELIMINARY REPORT.—Not 

11 later than 180 days after the date of en12 actment of the JOM Modernization Act, 

13 the Secretary shall publish a preliminary 

14 report describing the number of eligible In15 dian students served by each existing con16 tracting party, using the most applicable 

17 and accurate data (as determined by the 

18 Secretary in consultation with existing con19 tracting parties) from the fiscal year pre20 ceding the fiscal year for which the initial 

21 determination is to be made from— 

22 ‘‘(I) the Bureau of the Census; 

23 ‘‘(II) the National Center for 

24 Education Statistics; or 


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1 ‘‘(III) the Office of Indian Edu2 cation of the Department of Edu3 cation. 

4 ‘‘(ii) DATA EVALUATION.— 

5 ‘‘(I) IN GENERAL.—After pub6 lishing the preliminary report under 

7 clause (i), the Secretary shall evaluate 

8 the accuracy of the findings contained 

9 in such report. 

10 ‘‘(II) CONSULTATION.—To in11 form the evaluation described in sub12 clause (I), the Secretary shall estab13 lish a 60-day comment period to gain 

14 feedback about the preliminary report 

15 from existing contracting parties. 

16 ‘‘(III) DATA RECONCILIATION.— 

17 To evaluate the accuracy of the pre18 liminary report and through the con19 sultation process required under sub20 clause (II), the Secretary shall rec21 oncile the data described in the pre22 liminary report with— 

23 ‘‘(aa) the existing con24 tracting party’s data regarding 

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1 dents served by that existing con2 tracting party for the fiscal year 

3 preceding the fiscal year for 

4 which the initial determination is 

5 made; and 

6 ‘‘(bb) identifiable tribal en7 rollment information. 

8 ‘‘(iii) FINAL REPORT.—Not later than 

9 120 days after concluding the consultation 

10 described in clause (ii)(II), the Secretary 

11 shall publish a final report on the initial 

12 determination of the number of eligible In13 dian students served by each existing con14 tracting party. 

15 ‘‘(C) TECHNICAL ASSISTANCE.—The Sec16 retary, acting through the Director of the Bu17 reau of Indian Education, shall provide existing 

18 contracting parties with technical assistance re19 lating to the receipt and provision of informa20 tion on the number of eligible Indian students 

21 served by the existing contracting party. 

22 ‘‘(2) INITIAL DETERMINATIONS FOR NEW AP23 PLICANTS.— 

24 ‘‘(A) IN GENERAL.—For the purposes of 

25 making an initial determination of the number 


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1 of potentially eligible Indian students to be 

2 served by each new applicant, the Secretary 

3 shall publish a report in accordance with sub4 paragraph (B). 

5 ‘‘(B) PROCESS FOR MAKING THE INITIAL

6 DETERMINATION.—To determine the number of 

7 potentially eligible Indian students to be served 

8 by new applicants, the Secretary shall— 

9 ‘‘(i) include in the report the respec10 tive total eligible Indian student counts for 

11 each new applicant, as reported by the ap12 plicant during the application process, and 

13 other pertinent information, as determined 

14 by the Secretary; and 

15 ‘‘(ii) publish the report described in 

16 clause (i) on the same date the final report 

17 described in paragraph (1)(B)(iii) is pub18 lished. 

19 ‘‘(3) SUBSEQUENT ACADEMIC YEARS.—For 

20 each academic year following the fiscal year for 

21 which an initial determination is made under para22 graphs (1) and (2), the Secretary shall determine 

23 the number of eligible Indian students served by the 

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1 dian student count numbers identified through the 

2 reporting process described in subsection (d). 

3 ‘‘(d) CONTRACTING PARTY STUDENT COUNT RE4 PORTING COMPLIANCE.— 

5 ‘‘(1) IN GENERAL.—For each academic year 

6 following the fiscal year for which an initial deter7 mination is made under subsection (c), each con8 tracting party shall submit to the Secretary a report 

9 describing the number of eligible Indian students 

10 who were served using amounts allocated to such 

11 party under this Act during the previous fiscal year. 

12 ‘‘(2) FAILURE TO COMPLY.—A contracting 

13 party that fails to submit a report under paragraph 

14 (1) shall receive no amounts under this Act for the 

15 fiscal year following the academic year for which the 

16 report should have been submitted. 

17 ‘‘(3) NOTICE.—The Secretary shall provide con18 tracting parties with timely information relating 

19 to— 

20 ‘‘(A) initial and final reporting deadlines; 

21 and 

22 ‘‘(B) the consequences of failure to comply 

23 outlined in paragraph (2). 

24 ‘‘(4) TECHNICAL ASSISTANCE.—The Secretary, 

25 acting through the Director of the Bureau of Indian 


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1 Education, shall provide technical assistance and 

2 training on compliance with the reporting require3 ments of this subsection to contracting parties. 

4 ‘‘(e) ANNUAL REPORT.— 

5 ‘‘(1) IN GENERAL.—The Secretary shall pre6 pare an annual report, including the most recent de7 termination of the number of eligible Indian stu8 dents served by each contracting party, and an as9 sessment of the contracts under this Act that the 

10 Secretary— 

11 ‘‘(A) may include in the budget request of 

12 the Department of the Interior for each fiscal 

13 year; and 

14 ‘‘(B) shall submit to— 

15 ‘‘(i) the Committee on Indian Affairs 

16 of the Senate; 

17 ‘‘(ii) the Subcommittee on Interior, 

18 Environment, and Related Agencies of the 

19 Committee on Appropriations of the Sen20 ate; 

21 ‘‘(iii) the Committee on Natural Re22 sources of the House of Representatives; 

23 and 

24 ‘‘(iv) the Subcommittee on Interior, 

25 Environment, and Related Agencies of the 


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1 Committee on Appropriations of the House 

2 of Representatives. 

3 ‘‘(2) MANNER OF PREPARATION.—The Sec4 retary shall prepare the report under paragraph (1) 

5 in a manner so as to prevent or minimize new ad6 ministrative burdens on contracting parties receiving 

7 funds under this Act. 

8 ‘‘(f) HOLD HARMLESS.— 

9 ‘‘(1) IN GENERAL.—Except as provided under 

10 paragraph (2) and subject to paragraph (3), for a 

11 fiscal year, an existing contracting party shall not 

12 receive an amount under this Act that is less than 

13 the amount that such existing contracting party re14 ceived under this Act for the fiscal year preceding 

15 the date of enactment of the JOM Modernization 

16 Act. 

17 ‘‘(2) EXCEPTIONS.— 

18 ‘‘(A) IN GENERAL.—An existing con19 tracting party shall receive an amount under 

20 this Act for a fiscal year that is less than the 

21 amount that the existing contracting party re22 ceived under this Act for the fiscal year pre23 ceding the date of enactment of the JOM Mod24 ernization Act, if one or more of the following 

25 conditions is met: 


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1 ‘‘(i) FAILURE TO REPORT.—The exist2 ing contracting party failed to submit the 

3 report described in subsection (d) that was 

4 most recently due from the date of the de5 termination. 

6 ‘‘(ii) VIOLATIONS OF CONTRACT OR

7 LAW.—The Secretary has found that the 

8 existing contracting party has violated the 

9 terms of a contract entered into under this 

10 Act or has otherwise violated Federal law. 

11 ‘‘(iii) STUDENT COUNT DECREASE.— 

12 The number of eligible Indian students re13 ported by such existing contracting party 

14 under subsection (d) has decreased below 

15 the number of eligible Indian students 

16 identified in the initial determination with 

17 respect to the existing contracting party 

18 under subsection (c)(1). 

19 ‘‘(B) AMOUNT OF FUNDING REDUCTION

20 FOR EXISTING CONTRACTING PARTIES REPORT21 ING DECREASED STUDENT COUNTS.—A reduc22 tion in an amount pursuant to subparagraph 

23 (A)(iii) shall not be done in such a manner that 

24 the existing contracting party receives an 

25 amount of funding per eligible Indian student 


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1 that is less than the amount of funding per eli2 gible Indian student such party received for the 

3 fiscal year preceding the date of enactment of 

4 the JOM Modernization Act. 

5 ‘‘(3) SUNSET.—This subsection shall cease to 

6 be effective at the beginning of the fiscal year after 

7 the first fiscal year for which new contracting par8 ties receive an amount of funding per eligible Indian 

9 student that is equal to or greater than the amount 

10 of funding per eligible Indian student received by ex11 isting contracting parties for the fiscal year pre12 ceding the date of enactment of the JOM Mod13 ernization Act. 

14 ‘‘(g) FUNDING ALLOCATION AND REFORM.— 

15 ‘‘(1) PRESENT DAY PER STUDENT FUNDING AL16 LOCATION.—Not later than 60 days after an initial 

17 determination is made under subsection (c), the Sec18 retary shall establish, in consultation with con19 tracting parties, a present day per student funding 

20 allocation that shall serve as a funding baseline 

21 under this Act. 

22 ‘‘(2) FUNDING REFORM.—The Secretary may 

23 make recommendations for legislation to increase the 

24 amount of funds available per eligible Indian student 

25 through contracts under this Act to equal to or 


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1 greater than the amount of funds that were available 

2 per eligible Indian student through contracts under 

3 this Act for fiscal year 1995, and attempt to identify 

4 additional sources of funding that do not reallocate 

5 existing funds otherwise utilized by Indian students 

6 served— 

7 ‘‘(A) by the Bureau of Indian Education; 

8 or 

9 ‘‘(B) under title VI of the Elementary and 

10 Secondary Education Act of 1965 (20 U.S.C. 

11 7401 et seq.). 

12 ‘‘(3) INCREASES IN PROGRAM FUNDING.— 

13 ‘‘(A) IN GENERAL.—Subject to subsection 

14 (f) and subparagraphs (B) and (C), for any fis15 cal year for which the amount appropriated to 

16 carry out this Act exceeds the amount appro17 priated to carry out this Act for the preceding 

18 fiscal year, the excess amounts shall— 

19 ‘‘(i) be allocated only to those con20 tracting parties that have not received 

21 their full per student funding allocation as 

22 determined pursuant to paragraph (1); and 

23 ‘‘(ii) be allocated first to new con24 tracting parties that have not received 


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1 their full per student funding allocation as 

2 determined pursuant to paragraph (1). 

3 ‘‘(B) PARITY IN FUNDING.—Subparagraph 

4 (A) shall have no effect after the first fiscal 

5 year for which each contracting party receives 

6 their full per student funding allocation as de7 termined pursuant to paragraph (1). 

8 ‘‘(C) FUTURE ALLOCATIONS.—Allocations 

9 of appropriations for fiscal years after the first 

10 fiscal year for which each contracting party re11 ceives their full per student funding allocation 

12 as determined pursuant to paragraph (1) shall 

13 be made at the discretion of the Secretary, in 

14 consultation with Indian tribes and contracting 

15 parties. 

16 ‘‘(h) INCREASED GEOGRAPHICAL AND TRIBAL PAR17 TICIPATION IN THE JOHNSON-O’MALLEY SUPPLE18 MENTARY EDUCATION PROGRAM.—To the maximum ex19 tent practicable, the Secretary shall consult with Indian 

20 tribes and contact State educational agencies and local 

21 educational agencies that have not previously entered into 

22 a contract under this Act— 

23 ‘‘(1) to determine the interest of the Indian 

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1 cational agencies in entering into such contracts; 

2 and 

3 ‘‘(2) to share information relating to the proc4 ess for entering into a contract under this Act. 

5 ‘‘(i) RULEMAKING.—Not later than one year after the 

6 date of enactment of the JOM Modernization Act, the Sec7 retary, acting through the Director of the Bureau of In8 dian Education, shall undertake and complete a rule9 making process, following the provisions of subchapter II 

10 of chapter 5 of title 5, United States Code, to— 

11 ‘‘(1) determine how the regulatory definition of 

12 ‘eligible Indian student’ may be revised to clarify eli13 gibility requirements for contracting parties under 

14 this Act; 

15 ‘‘(2) determine, as necessary, how the funding 

16 formula described in section 273.31 of title 25, Code 

17 of Federal Regulations (as in effect on the day be18 fore the date of enactment of the JOM Moderniza19 tion Act) may be clarified and revised to ensure full 

20 participation of contracting parties and provide clar21 ity on the funding process under this Act; and 

22 ‘‘(3) otherwise reconcile and modernize the 

23 rules to comport with the activities of the con24 tracting parties under this Act as of the date of en25 actment of the JOM Modernization Act. 


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1 ‘‘(j) STUDENT PRIVACY.—The Secretary shall ensure 

2 that data is collected and each report is prepared under 

3 this section in a manner that protects the rights of eligible 

4 Indian students in accordance with section 444 of the 

5 General Education Provisions Act (commonly referred to 

6 as the Family Educational Rights and Privacy Act of 

7 1974) (20 U.S.C. 1232g). 

8 ‘‘(k) GAO REPORT.—Not later than 2 years after the 

9 date of enactment of the JOM Modernization Act, the 

10 Comptroller General shall— 

11 ‘‘(1) conduct a review of the implementation of 

12 this section during the preceding two-year period, in13 cluding any factors impacting— 

14 ‘‘(A) the accuracy of the determinations of 

15 the number of eligible Indian students under 

16 this section; 

17 ‘‘(B) the communication between the Bu18 reau of Indian Education and contracting par19 ties; and 

20 ‘‘(C) the efforts by the Bureau of Indian 

21 Education to ensure accurate and sufficient dis22 tribution of funding for Indian students; 

23 ‘‘(2) submit a report describing the results of 

24 the review under paragraph (1) to— 


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1 ‘‘(A) the Committee on Indian Affairs of 

2 the Senate; 

3 ‘‘(B) the Subcommittee on Interior, Envi4 ronment, and Related Agencies of the Com5 mittee on Appropriations of the Senate; 

6 ‘‘(C) the Subcommittee on Indian, Insular 

7 and Alaska Native Affairs of the Committee on 

8 Natural Resources of the House of Representa9 tives; and 

10 ‘‘(D) the Subcommittee on Interior, Envi11 ronment, and Related Agencies of the Com12 mittee on Appropriations of the House of Rep13 resentatives; and 

14 ‘‘(3) make such report publicly available. 

15 ‘‘(l) EFFECT.—Nothing in this section— 

16 ‘‘(1) creates a new program or duplicates pro17 gram activities under this Act; or 

18 ‘‘(2) replaces or diminishes the effect of regula19 tions to carry out this Act existing on the day before 

20 the date of enactment of the JOM Modernization 

21 Act, unless expressly provided in this section.’’. 

Æ 


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