United States Government Accountability Office

GAO Testimony 

Before the Subcommittee on Early Childhood, 

Elementary and Secondary Education, 

Committee on Education and Labor, House of 

Representatives 

BUREAU OF INDIAN 

EDUCATION 

Improving Interior’s 

Assistance Would Aid Tribal 

Groups Developing 

Academic Accountability 

Systems 

Statement of Cornelia Ashby, Director 

Education, Workforce, and Income Security 

For Release on Delivery

Expected at 10:00 a.m. EDT 

Tuesday, September 9, 2008

 

GAO-08-1125T 
What GAO Found

United States Government Accountability Office

Why GAO Did This Study

Highlights

Accountability Integrity Reliability

September 9, 2008

BUREAU OF INDIAN EDUCATION 

Improving Interior’s Assistance Would Aid Tribal 

Groups Developing Academic Accountability 

Highlights of GAO-08-1125T, a report to Systems

the Subcomittee on Early Childhood, 

Elementary and Secondary Education, 

Committee on Education and Labor, 

House of Representatives

Although almost all of the 174 BIE schools have officially adopted BIE’s 

definition of AYP—the definition of AYP of the state where the school is 

located—BIE had not yet completed memoranda of understanding (MOU) to 

delineate BIE and state responsibilities concerning BIE schools’ access to the 

states’ assessment systems for 12 of the 23 states with BIE schools. Without 

MOUs, states could change their policies regarding BIE schools’ access to 

assessments and scoring services. 

Officials from the Navajo Nation, the Oceti Sakowin Education Consortium, 

and the Miccosukee Tribe have begun to develop alternatives to state AYP 

definitions, in part to make standards and assessments reflect their culture,

while officials of other tribal groups have cited challenges, such as a lack of 

expertise, as reasons not to pursue alternatives. The three tribal groups 

developing alternatives, representing about 44 percent of the 48,000 BIE 

students, have requested technical assistance in developing their alternatives. 

Other tribal officials cited a desire to maintain compatibility with public 

schools and/or cited challenges, such as a lack of expertise, as reasons not to 

pursue alternatives.

The three tribal groups pursuing alternatives reported a lack of federal 

guidance and communication, although they have recently received some 

initial technical assistance from BIE and Education officials. These tribal

groups reported receiving little guidance from BIE and difficulties in 

communicating with BIE and the BIE did not always have internal response 

timelines or meet the ones it had. Moreover, BIE education line officers—the 

primary points of contact for information on the alternative provision—

generally indicated that they had received no guidance or training on the 

provision. During the course of GAO’s prior review, BIE and Education 

officials began offering technical assistance to the tribal groups working to 

develop alternatives. 

In response to GAO’s recommendations in its June 2008 report that the 

Secretary of the Interior increase support, including technical assistance, 

guidance, training, and communication for tribal groups in their 

implementation of the provision for developing alternatives, BIE has taken 

several steps. In particular, BIE officials told GAO that they are in the process

of working out the language for a memorandum of agreement with California 

state officials. In addition, BIE officials told GAO that the three tribal groups 

seeking alternatives were working closely with a contractor to develop 

proposals. With regard to the recommendation to provide guidelines and 

training on the process for pursuing alternative assessments, BIE officials told

GAO that they have taken steps to develop a presentation on the process that 

they anticipated would be available in October 2008. 

The No Child Left Behind Act 

(NCLBA) requires states and the 

Department of the Interior’s Bureau

of Indian Education (BIE) to define

and determine whether schools are 

making adequate yearly progress 

(AYP) toward the goal of 100 

percent academic proficiency. To

address tribes’ needs for cultural

preservation, NCLBA allows tribal

groups to waive all or part of BIE’s 

definition of AYP and propose an

alternative, with technical

assistance from BIE and the 

Department of Education, if

requested. GAO is providing 

information on the extent of (1) BIE 

schools’ adoption of BIE’s 

definition of AYP; (2) tribal groups 

pursuit of alternatives and their 

reasons, as well as reasons for not 

pursuing alternatives; and (3) 

federal assistance to tribal groups 

pursuing alternatives. To prepare 

this testimony, GAO relied primarily 

on information from a recent GAO 

report, GAO-08-679, and contacted 

BIE officials for updates on actions 

taken in response to GAO’s prior 

recommendations. 

To view the full product, including the scope 

and methodology, click on GAO-08-1125T. 

For more information, contact Cornelia Ashby 

at (202)-512-7215 or AshbyC@gao.gov. 
Mr. Chairman and Members of the Subcommittee: 

I am pleased to be here today to discuss the extent to which the governing 

bodies of some schools funded by the Department of the Interior have 

sought or developed alternative methods of measuring children’s 

academic progress and the challenges they have faced in doing so. The 

Department of the Interior’s Bureau of Indian Education (BIE) is 

responsible for the education of the 48,000 Indian students in 174 BIEfunded schools across 23 states. In school year 2006-07, about one-third of

these schools were operated directly by BIE and two-thirds by tribes 

under federal contracts or grants,1

 which offer the potential for tribal 

groups to take greater ownership of their children’s education. As a 

condition for receiving grants under the No Child Left Behind Act 

(NCLBA), schools—including the BIE schools—must measure yearly 

progress in meeting standards in math, reading, and science. In 2005, the 

Secretary of the Interior determined that to measure such progress, each 

BIE school would use the definition of adequate yearly progress (AYP) of 

the state in which the school was located. Recognizing that students at 

BIE schools may have unique needs and special circumstances, NCLBA 

allows tribal groups to waive all or part of the Secretary’s authorized 

definition of AYP and propose an alternative. 

My testimony will focus on (1) the number of BIE schools that have 

adopted state definitions of AYP; (2) tribal groups that have sought 

alternatives and their reasons for doing so, as well as the reasons other 

tribal groups have not done so; and (3) the role the federal government has 

played in assisting those tribal groups developing alternatives. My 

testimony is based largely on a recently issued GAO report,2

 updated with 

information provided by BIE officials including the status of actions taken

in response to our prior recommendations. To complete our review for 

that report, we visited the tribal groups that were in the process of 

developing alternative definitions of AYP—and some who were not doing 

so. In particular, we interviewed officials from the Navajo Nation, 

Miccosukee Tribe of Indians of Florida, Mississippi Band of Choctaw 

Indians, Seminole Tribe of Florida, Oceti Sakowin Education Consortium 

(OSEC), and Soboba Band of Luiseno Indians, as well as officials from the 

BIE off-reservation boarding school in California and the eight BIE-funded 

 1

For the 2006-07 school year. 

2

GAO, Bureau of Indian Education Schools: Improving Interior’s Assistance Would Help

Some Tribal Groups Implement Academic Accountability Systems, GAO-08-679 

(Washington, D.C.: June 27, 2008). 

Page 1 GAO-08-1125T 
schools in Washington State, which serve students from multiple tribes. 

We interviewed state and federal education officials, as well as BIE 

officials and representatives from Indian organizations. We reviewed 

relevant documents, including regulations and existing memoranda of 

understanding (MOU) between BIE and the states.3

 Our work was 

conducted in accordance with generally accepted government auditing 

standards. Those standards require that we plan and perform the audit to

obtain sufficient, appropriate evidence to provide a reasonable basis for 

our findings and conclusions based on our audit objectives. We believe 

that the evidence obtained provides a reasonable basis for our findings 

and conclusions based on our audit objectives. 

In summary, following the policy BIE established in 2005 for measuring 

AYP, almost all of the 174 BIE-funded schools have measured academic 

progress in accordance with their state’s definition of AYP, although three 

tribal groups representing 44 percent of BIE students are in the process of

developing alternative definitions, as allowed under NCLBA. To establish 

the terms under which BIE schools access assessments and scoring 

arrangements, BIE has established agreements with about half of the 

states that have BIE schools. The remaining states, with the exception of 

California, have allowed BIE schools access to their assessments; 

however, there is increased risk in these states that the terms of access 

will change. The Navajo Nation, the Oceti Sakowin Education Constortium 

(OSEC), and the Miccosukee are seeking alternatives to state definitions 

of AYP, in part to have more culturally relevant standards and 

assessments. Other tribal groups are not developing alternatives, citing 

potential challenges—such as a lack of resources—or a desire to maintain 

compatibility with public schools with which they share students. The 

three tribal groups seeking alternatives reported a lack of federal guidance 

and communication, but they have more recently reported receiving some 

assistance from BIE and Education officials. BIE’s education line officers 

(ELO)—who are the tribal groups’ primary points of contact for 

information on developing an alternative—generally indicated that they

had received no guidance or training on this provision. In communicating 

with tribal groups regarding alternative AYP definitions, BIE did not 

always have internal timelines or meet the ones it had, nor did BIE 

consistently apply its processes for providing accurate and timely 

responses. In our June 2008 report we made recommendations to the 

Secretary of the Interior aimed at increasing support, including improved 

 3

In all, we visited seven states—Arizona, California, Florida, Mississippi, New Mexico,

South Dakota, and Washington—and interviewed officials representing 21 schools across

those states. For more details about how we conducted our review, please see GAO-08-679. 

Page 2 GAO-08-1125T 
assistance, guidance, training, and communication for tribal groups in 

their implementation of the provision for developing alternative 

definitions of AYP. Interior agreed with our recommendations and in 

subsequent conversations reported taking actions in response to our 

recommendations. 

NCLBA required the Secretary of the Interior to develop a definition of 

AYP4

 for BIE schools, but also allows tribal groups to waive all or part of 

BIE’s definition of AYP and propose an alternative.5

 After a process of 

negotiated rulemaking,6 Interior issued regulations specifying that each 

BIE school must adopt the standards, assessments, and definition of the 

state in which the school is located.7

 BIE has used agreements, or MOUs, 

with the states to delineate the terms of accessing state assessments and 

scoring arrangements. Tribal groups may submit an alternative proposal, 

but are obligated to use the state’s definition, content standards, and 

assessments until the alternative is approved by the Secretaries of Interior 

and Education.8

Background 

Tribal groups are obligated to develop alternative definitions of AYP if 

states do not give tribal groups access to their assessments. However, the 

regulations do not delineate how to determine whether a school has 

achieved AYP in those cases in which schools cannot access state 

assessments and have not developed an alternative.9

 Under BIE 

regulations, a tribal group that requires assistance in developing an 

 4

Under NCLBA states are required to establish performance goals and hold their schools 

receiving funds under Title I accountable for students’ performance by determining 

whether or not schools have made AYP. The act requires states to set challenging academic

content and achievement standards in reading or language arts, mathematics, and science,

and determine whether school districts and schools make AYP toward meeting these 

standards. 

5

NCLBA allows a tribal governing body or school board to waive the BIE’s definition of

AYP “in part or in whole.” (20U.S.C. § 6316(g)(1)(B)) BIE regulations state that this waiver 

applies to the definition of AYP, academic content and achievement standards, and 

assessments.) (25 C.F.R. § 30.105). 

6

NCLBA required the Secretary of the Interior to develop a definition of AYP for BIE

schools through negotiated rulemaking. 20 U.S.C. § 6316(g)(1)(A). 

7

70 Fed. Reg. 22178 (Apr. 28, 2005). 

8

See 20 U.S.C. § 6316(g)(1)(B) and 25 C.F.R. §§ 105 and 30.113.

9

In such cases, BIE has recently determined that it will not change the school’s AYP status 

from the prior year.

Page 3 GAO-08-1125T 
alternative must submit a written request to BIE. Then, within given time 

frames, BIE must acknowledge receipt of the request for technical 

assistance and identify a point of contact to work with the tribal group.10 In 

providing such assistance to tribal groups, BIE has access to federal funds 

designated to assist with assessment-related activities. 

BIE determined that for school year 2006-07, just under one-third of the 

174 schools had made AYP, two-thirds had not, and 4 schools were held 

harmless, with no AYP determinations made. Under NCLBA, schools that 

fail to meet AYP for 2 consecutive years must implement specific types of 

remedial actions, although the requirements for BIE schools vary from 

those for public Title I schools (see table 1). For a BIE-operated school, 

implementation of required remedial actions is the responsibility of the 

BIE, whereas for schools that are tribally operated through contracts or 

grants, implementation of remedial actions is the responsibility of the 

tribal group.

Table 1: Remedial Actions for Public Title I and BIE Title I Schools That Fail to Make AYP 

AYP School status in the next year 

Remedial actions for Public Title I 

schools 

Remedial actions for BIE Title I 

schools 

First year 

missed 

Not applicable None Analyze AYP data and consider 

consultation with outside experts 

Second year 

missed 

Public school choice (first year of 

improvement) 

Required to develop a school 

improvement plan and offer public school 

choice 

Required to develop a school 

improvement plan 

Not required to offer public school 

choice 

Third year 

missed 

Supplementary Educational 

Services (SES) (second year of 

improvement) 

Required to offer public school choice 

and SES 

Continue revising or modifying school 

improvement plan 

Not required to offer either public school 

choice or SES 

Fourth year 

missed 

Corrective action (third year of

improvement) 

Implement certain corrective actions and 

offer public school choice and SES 

Implement certain corrective actions 

Not required to offer either public school 

choice or SES 

Fifth year 

missed 

Planning for restructuring (fourth 

year of improvement) 

Plan for a change in governance 

(restructuring) and offer public school 

choice and SES 

Prepare a restructuring plan 

Not required to offer either public school 

choice or SES 

Sixth year 

missed 

Implementation of restructuring 

(fifth year of improvement) 

Implement a change in governance 

(restructuring) and offer public school 

choice and SES 

Implement the restructuring plan 

Not required to offer either public school 

choice or SES 

 1025 C.F.R. § 30.110.

Page 4 GAO-08-1125T 
AYP School status in the next year 

Remedial actions for Public Title I 

schools 

Remedial actions for BIE Title I 

schools 

Seventh 

year missed 

(and 

beyond) 

Restructuring Continue implementation of the 

restructuring plan until AYP is met for 2 

consecutive years 

Continue implementation of the 

restructuring plan until AYP is met for 2 

consecutive years 

Source: GAO analysis of NCLBA and Education’s regulations. 

Almost all of the BIE schools adopted their state’s definition of AYP, 

content standards, and assessments, but BIE had signed MOUs that ensure 

access to state assessments with only 11 of the 23 states in which BIE 

schools are located, as of April 2008. In addition, BIE experienced some 

challenges in applying the state definitions to determine whether the 174 

schools had met AYP. 

Because BIE schools generally use state definitions of AYP, BIE officials 

must apply 23 different state definitions. BIE officials told us that the AYP 

determinations were made by applying the criteria filed with Education by

the relevant state, except in California and Florida, where BIE schools did 

not administer the state assessment, and in Arizona and North Carolina 

where there was a data constraint.11

The process is complex: some states assess students in additional areas, 

such as testing students in both reading and language arts, and the 

statistical formulas for calculating AYP also vary among states. Some 

states’ formulas include multiple confidence bands while other states use 

none. Similarly, annual measurable objectives, alternate AYP indicators, 

and formulas for calculating graduation rates also vary across states. 

BIE and BIE-Funded 

Schools Have Generally 

Used State Definitions of 

AYP, but BIE Has Not 

Taken Steps to Ensure 

Continued Access to All 

State Assessments 

BIE Generally Uses 23 

State AYP Definitions 

to Make AYP 

Determinations;

however, There Were 

Some Difficulties 

Applying the Various 

State Definitions 

BIE officials told us that, for several reasons, schools were not always 

notified of their AYP status prior to the beginning of the subsequent school 

 11In particular, BIE officials told us that they had been unable to incorporate Arizona and 

North Carolinas’ growth models—which track changes in proficiency levels or test scores

over time. Some growth models measure individual student progress across time and 

require a student data system that can link the individual students’ current test scores to 

those of prior years. BIE officials told us that their new Native American Student 

Information System has such capabilities, but had not been fully implemented.

Page 5 GAO-08-1125T 
year. As of December 2007, 93 of the 174 schools had been notified of their 

AYP status for school year 2006-07. By March 2008, the number of schools 

notified had increased to 146. BIE officials told us that the delay in 

notification was prolonged due to staffing issues, as well as schools and 

states missing deadlines to report assessment data. For example, BIE 

officials told us that it had been hard to collect attendance data and 

graduation data needed to make AYP determinations; however, they stated

that these data will be more readily available in their new student 

information system—the Native American Student Information System. 

In addition, BIE officials told us that four schools, two in California and 

two in Florida, were not administering the state assessments for reasons 

that are discussed in the next section. These schools were continuing to 

administer the standardized tests they had used in prior years. Officials 

from all four schools told us that their schools had adopted the academic 

content standards of their respective states. 

BIE uses MOUs with states to delineate the terms of BIE-funded schools’ 

access to the states’ assessment systems; however, it had not completed 

MOUs with 12 of the 23 states, including 5 we visited—Arizona, California, 

Florida, Mississippi, and New Mexico.12 The 12 states without signed 

MOUs enroll about two-thirds of the students in BIE schools, but BIE 

officials told us that they did not actively pursue MOUs with these states, 

in part because most states were allowing BIE schools to access state 

assessments and scoring arrangements without such agreements. The 

MOUs generally specify responsibilities for the state and BIE. For 

example, states may be responsible for including BIE schools in relevant

training, informing BIE of changes to the state’s definition of AYP, and 

scoring the BIE assessments. The MOUs also delineate responsibilities of 

BIE such as ensuring that staff are properly trained and that the 

assessments are administered according to state protocols. 

BIE Lacked 

Completed 

Agreements with 

about Half of the 

States with BIE 

Schools, Which Could 

Affect Access to State 

Assessments 

However, California state officials told us they had neither signed an MOU 

nor given BIE access to the state assessments because they feared a 

breach in test security.13 They noted that such a breach in security could 

undermine the validity of the test, in which the state had invested millions 

 12The other seven states without signed MOUs are Louisiana, Michigan, Minnesota, North 

Carolina, Oklahoma, Utah, and Wisconsin. 

13For example, the test may not be properly safeguarded or administered. 

Page 6 GAO-08-1125T 
of dollars to develop.14 California officials stated that several entities, 

including private schools, had requested permission to administer the test 

and that their approach was to administer the test only to public schools in 

California. State officials were willing to make an exception for BIE 

schools to administer the assessment, but requested a $1 million bond as 

security. BIE and Education officials told us that they were trying to work 

with the state to resolve the issue. Education officials told us that they

were hopeful that a solution, such as having BIE students assessed at 

public schools, could be worked out.15

Officials in other states also told us that they have delayed or rescinded 

MOUs because tribal groups indicated that they had not been consulted 

about the terms of the agreements (see table 2). For example, state 

officials in Washington told us that when they received the request to sign 

the MOU, they contacted tribal groups and realized that the tribal groups 

had been informed of the MOU, but not consulted regarding its details. 

After consulting with tribal groups, Washington state officials modified the 

proposed MOU and signed it. In addition, BIE does not currently have a 

valid MOU with New Mexico because the Governor of New Mexico 

suspended the state’s MOU with BIE shortly after signing it, in part 

because tribal groups indicated that they had not been consulted about the 

terms of the MOU. 

Table 2: Issues Encountered in Establishing MOUs in the Seven States We Visited 

State Signed MOU Issues in establishing the MOU If issues were resolved, how so? 

Arizona No Impasse regarding language of the MOU Unresolved 

California No Concerns about test security 

Request for $1 million bond 

Unresolved 

Florida No Tribal groups do not wish to take Florida state test Unresolved 

 14There were also access issues in Mississippi due to the state’s security concerns. The

eight BIE schools in Mississippi were able to administer the state assessment in both 2005-

06 and 2006-07; however, they were initially unable to access a re-administration of the

assessment in 2006-07. This situation was resolved through an agreement between the 

schools and the state of Mississippi. 

15Under BIE regulations, BIE schools without access to their state’s assessment must

submit a waiver to develop an alternative definition of AYP. 25 C.F.R. § 30.125(b). However,

officials from the two BIE schools in California stated that developing an alternative 

definition was unreasonably burdensome and that they had no intention of proposing an

alternative assessment in the foreseeable future. 

Page 7 GAO-08-1125T 
State Signed MOU Issues in establishing the MOU If issues were resolved, how so? 

Mississippi No Test security 

Release of results 

Added additional language, currently being 

reviewed. 

New Mexico No Rescinded–tribal groups expressed that they had 

not been involved in the process 

Unresolved 

South Dakota Yes No issues in establishing MOU May need to renegotiate current MOU. 

Washington Yes Initially tribal groups had not been included in the 

process 

State brought tribal groups into the discussion. 

State and tribal groups then worked together 

closely. 

Source: GAO analysis.

Three Tribal Groups Have 

Officially Begun 

Developing AYP 

Alternatives in Part to 

Integrate Culture or 

Language, While Other 

Tribal Groups Have 

Chosen Not to Do So, in 

Part Because of 

Substantial Potential 

Challenges 

As of March 2008, three tribal groups—the Navajo Nation, OSEC, and 

Miccosukee—had formally notified the BIE of their intent to develop 

alternatives to state definitions of AYP. These tribal groups represent BIEfunded schools in five states and include about 44 percent of BIE students 

(see table 3). The tribal groups began the process of developing

alternatives at different times, but all were still in the early stages of doing 

so. 

Table 3: Status of Tribal Groups’ Early Efforts in Seeking Alternatives 

Tribal group 

No. of 

schools

No. of 

students (SY 

2006-07) Progress to date 

States in which

affected BIEfunded schools

are located

Met with BIE and Education Tribes report 

technical 

assistance 

had started 

Funding 

requested 

Funding 

receivedb

Navajo Nation 60 16,598 9 Noa 9 No Arizona, New 

Mexico, Utah 

OSEC 11 4,442 9 9 9 No South Dakota 

Miccosukee 1 152 9 9 No No Florida 

Source: GAO analysis.

Page 8 GAO-08-1125T 
a

In March 2008 a meeting took place with officials from Education, Interior, and the Navajo Nation to 

discuss technical assistance needs. However, a representative of the Navajo Nation declined to 

characterize the focus of the meeting as technical assistance, stating that Education officials did not 

seem to want to consider the factors the Navajo had identified, such as a school’s remoteness or a 

child’s mental health, in making AYP determinations. 

b

The BIE, in technical comments on our draft report, stated that BIE cannot transfer funds for 

continued technical assistance to a tribal group until a fundable request has been developed. 

Officials from the Navajo Nation, with BIE schools in three states, have 

requested technical assistance for developing an alternative definition of 

AYP, citing the desire to include cultural components in the standards and

assessments and to compare the progress of Navajo students across 

states. Navajo officials have recently (October 2007) requested technical 

assistance from BIE to develop an alternative “Navajo specific” measure 

that would influence AYP determination, regardless of the state in which

the school was located. 16

OSEC, a consortium of tribal groups in South Dakota,17 seeks to develop

an alternative to improve student performance in its schools, to define the 

graduation rate to include 6 years rather than 4, and to replace the 

attendance component of the state’s definition of AYP with a language and 

culture component. OSEC has submitted a proposal to BIE officials18 that 

provides a framework for developing academic content standards for 

math, reading, and science—the subject areas that must be covered in a 

state assessment—as well as developing an assessment. OSEC officials 

consulted with BIE officials regarding the proposal, and BIE has since 

forwarded the proposal to Education for review. Education officials met 

with officials from BIE and OSEC in November 2007 to evaluate OSEC’s 

needs and offer technical assistance. Education officials told us that they 

have a consultant who could help OSEC ensure that the new standards 

and assessments meet Education’s guidelines. 

Officials from the Miccosukee Tribe have informed BIE that they did not

want to implement the Florida assessment system because they thought it 

 16Navajo officials told us that they currently do not have a consistent method of measuring

the academic progress of their students across the states in which they are enrolled. Navajo

children attend public, private, or BIE-funded schools in Arizona, New Mexico, Utah, and 

Colorado. There are no BIE-funded schools in Colorado. Currently, the students are

assessed using the various state assessment systems. 

17OSEC includes representatives from 11 BIE-funded schools. 

18OSEC sent letters to BIE officials requesting technical assistance as early as spring 2005. 

OSEC sent a proposal for the BIE to review in the summer of 2007. 

Page 9 GAO-08-1125T 
was flawed and inferior to the standardized test they were already using. 

They also told us that because attendance in the Miccosukee School was 

not compulsory, they rejected the use of attendance as an additional AYP 

indicator.19 After having met with Education officials and a consultant, the 

Miccosukee told us that they were considering various options in their 

development of an alternative assessment, including augmenting the 

current test, called the Terra Nova, or developing a new assessment based 

on a modified version of Florida’s academic content standards. Officials 

also told us that they were working on developing standards for 

Miccosukee culture and language to serve as the basis for an assessment 

that would serve as the additional AYP indicator in lieu of attendance for 

their students in third through eighth grade. 

Most remaining tribal groups have not pursued alternatives for various 

reasons, including the desire to maintain compatibility with public schools 

in their state, and potential challenges and resources required to develop 

alternatives. Officials representing BIE schools in California, Mississippi, 

and Washington told us that it was important that their schools be 

compatible with the local public schools. Officials from the BIE schools in 

Mississippi wanted to ensure that their students received the same 

diploma as other children in the state. Further, school officials and BIE 

education line officers identified several potential challenges that tribal 

groups might encounter in their efforts to develop alternative standards or 

assessments, including a lack of expertise, funding, and time (see table 4). 

According to ELOs and school20 and Education officials, the specialized 

knowledge needed to develop an alternative definition of AYP is generally

beyond the capacity of tribal groups. With regard to financing the 

development of alternatives, Education officials stated that developing 

standards and assessments could cost tens of millions of dollars21—

financial resources that some tribal representatives and BIE officials told 

us are generally not available among many tribal groups. Education 

officials and ELOs also agreed that developing alternatives requires an 

 19NCLBA requires schools to have at least one other academic indicator for AYP. The law 

requires that the additional indicator be graduation rates for high schools, but does not 

specify the indicator for grades 3 through 8. 

20Some ELOs and school officials we interviewed told us they are also members of a tribal 

group. 

21In 2003, GAO estimated that test development costs under NCLBA would range from 

$12 million to $17 million per state. 

Page 10 GAO-08-1125T 
extensive time commitment that may not be sustainable given changes in

leadership. 

Table 4: Key Potential Challenges Identified by ELOs That Tribal Groups Could 

Face When Developing an Alternative Definition of AYP 

Challengea 

Number of ELOs 

identifying the

challengeb

Financing the development of an assessment or 

standards would be burdensome for tribes. 

14

Expertise for developing assessments or 

cultural/language standards generally not available 

among tribal members. 

14

The process for developing, piloting, and testing an 

assessment is lengthy. 

8

The BIE process for waiving state definitions of AYP and 

proposing and implementing alternatives is burdensome. 

6

Changes in tribal leadership or BIE leadership could 

erode support for such a project due to changes in 

priorities. 

5

Financing data collection and scoring of assessments 

would be burdensome. 

3

Source: GAO analysis.

a

These challenges, with the exception of “Financing data collection and scoring of assessments would 

be burdensome,” were also identified by some school officials during our interviews.

b

Among 21 ELOs responding to an open-ended question. 

Tribal Groups Considering 

Alternatives and School 

Officials Reported a Lack 

of Federal Guidance and 

Communication, but BIE 

and Education Have 

Recently Begun Providing 

Some Initial Assistance 

Most tribal groups, ELOs, and school officials we spoke with said they had

received little guidance about the process BIE uses to help tribal groups 

develop alternatives and some expressed frustration with the pace and 

quality of communication with BIE. Officials representing the two tribal 

groups and one consortium that have formally requested technical 

assistance stated they were uncertain about the BIE process for applying 

for an alternative. Likewise, we found school officials were also unsure of 

BIE’s process for applying for an alternative. For example, officials from 

the two BIE schools in California said they had no knowledge of the BIE 

process to assist tribal governing bodies and school boards to develop

alternatives.

About half of the ELOs, despite being the first point of contact, told us 

they did not have enough information to accurately describe the process a 

tribal group would use to waive the Secretary of the Interior’s definition 

Page 11 GAO-08-1125T 
and pursue development of an alternative definition of AYP. This may be 

at least partly due to turnover among ELOs. Eight of the 21 ELOs said they 

had been in their current position for 12 months or less while 7 had been 

in their current position from 1 to 3 years.22 During our interviews, almost 

all of the ELOs (19 of 21) told us that they had not received any 

information from BIE officials on their role in providing technical 

assistance to tribes in developing content standards, assessments, or 

definitions of AYP.23 In addition, although BIE receives funds from 

Education that could be used to assist tribal groups with the development 

of alternatives, all 21 of BIE’s ELOs told us they had not been instructed 

that BIE funds were available for this purpose. 

Some school officials and tribal groups we interviewed reported slow 

responses to requests for assistance and a lack of communication from the 

BIE in other cases. For example, OSEC’s written request for technical 

assistance in developing an alternative definition of AYP was not acted 

upon for 8 months. In another case, the Miccosukee’s written request to 

waive the state assessment and develop an alternative went unanswered 

by the BIE from October 2006 to June 2007. BIE officials, in 

acknowledging their slow response to the tribal groups’ requests for 

technical assistance, stated that in some cases tribal groups’ written 

requests were not always clear about what they wanted from the BIE or 

had not adhered to the regulation that requires the waiver request be 

submitted by either a tribal governing body or school board. School 

officials we interviewed reported frustration with BIE’s failure to initiate 

communication when necessary. For example, officials from one of the 

BIE schools in California stated that, although BIE officials were aware 

that the state had not given the schools access to the state assessment, 

BIE had not communicated with or offered any type of assistance to the 

schools. 

 22BIE officials told us that about 25 percent of the ELOs who attended training on the

process to develop an alternative were no longer employed in that position. According to

BIE officials, ELOs had received such training in 2005—although no requested 

documentation of this training and guidance was provided to us. Furthermore, 19 of the 21

ELOs we interviewed also stated they had not received any training or written guidance on 

the BIE’s policy for approving a tribal group’s request for an alternative, even though

providing technical assistance to tribal groups developing an alternative is included in their 

job responsibilities. 

23The other two ELOs could not specifically recall whether they had received any such 

information. 

Page 12 GAO-08-1125T 
To address tribal groups’ requests for technical assistance, BIE assigned a 

staff person as the primary BIE contact for tribal groups that are 

requesting technical assistance or seeking to develop alternatives.24

However, this BIE staff person has several other key responsibilities 

including responsibility for applying 23 state AYP definitions to calculate 

the AYP status of BIE schools in addition to other major responsibilities. 

In response to the requests, BIE and Education officials have recently 

offered technical assistance to those tribal groups that are seeking to 

develop alternatives. For example, officials from BIE and Education met 

with the Miccosukee and OSEC in November 2007 to assess the type of

technical assistance needed in order for the tribal groups to pursue 

development of their alternatives. Likewise, officials from BIE and 

Education also met with representatives of the Navajo Nation in March 

2008 to assess their technical assistance needs as they continue to pursue

development of an alternative. Education officials told us they have also 

sent a contractor to assist tribal groups as they pursue the development of 

alternative assessments. Specifically, in South Dakota, the Education 

contractor is charged with working with the OSEC consortium to identify 

the actions needed to ensure that its alternative assessment will comply 

with NCLBA regulations. 

Officials from BIE and 

Education Have 

Recently Begun to 

Offer Technical 

Assistance 

As of February 2008, according to BIE officials, none of the funds provided 

by Education to BIE under the NCLBA provision supporting assessmentrelated expenses had been spent to provide technical assistance to tribal 

groups seeking to develop alternatives.25 According to BIE, all of these 

funds had been obligated, primarily for improvements to BIE’s student 

information and tracking systems and other assessment-related uses, 

including professional development.26 BIE officials stated that none of 

these funds had been spent on technical assistance, as no fundable 

requests had been received from the tribal groups developing alternatives. 

 24BIE officials also sent Education’s: “Standards and Assessments Peer Review Guidance: 

Information and Examples for Meeting the Requirements of the No Child Left Behind Act 

of 2001” to a tribal group in an effort to respond to its request for technical assistance. 

25BIE regulations provide that funds provided by Education under NCLBA section 6111 may

be used in providing technical assistance. 25 C.F.R. § 30.109. 

26We requested accountings of BIEs expenditure of section 6111 funds from both BIE and 

Education. Education officials told us that they did not specifically require that BIE report 

on the expenditure of these funds and BIE officials had not provided GAO a thorough

accounting by the end of our audit. Rather, they provided a spreadsheet indicating the 

funds had been primarily obligated for BIE’s student information system. 

Page 13 GAO-08-1125T 
However, the officials stated that they expected to spend some funds to 

provide technical assistance in the near future. 

Our June report recommended that, in order to improve support for tribal 

governments and school boards in their adoption of definitions of AYP, the 

Secretary of the Interior should direct BIE to: 

• Coordinate with relevant tribal groups in pursuing negotiation of MOUs 

with states that lack them, seeking facilitation from Education when 

necessary and appropriate. 

Prior 

Recommendations 

and Current Status 

• In close coordination with Education, provide prompt assistance to tribal 

groups in defining assessment options, especially in instances in which 

tribal groups are not accessing state assessments. Such assistance could 

include delineating options—such as using an already established 

assessment, augmenting an assessment, or incorporating cultural 

components as an additional academic indicator—and their associated 

costs. 

• Provide guidelines and training on the process for seeking and approving 

alternatives to all tribal governments, tribal school boards, and education 

line offices.

• Establish internal response time frames and processes to ensure more 

timely responses to all correspondence with tribal groups as well as 

proactive communication with tribal groups and Education to resolve 

issues related to waivers, requests for technical assistance, and 

development of alternative definitions of AYP. 

In written comments, the Department of the Interior agreed with our 

recommendations and indicated it had initiated steps to implement them. 

In preparation for this testimony, we requested an update on BIE’s actions. 

With regard to our recommendation about completing MOUs, BIE officials 

told us that they are in the process of working out the language for a 

memorandum of agreement with California state officials. BIE officials 

told us that the agreement will include language to assure the state that 

the assessment will be secured and properly administered. In addition, 

BIE officials told us that the three tribal groups seeking alternatives were 

working closely with a contractor, and BIE intended to release some 

funding to them in late September 2008. With regard to the 

recommendation to provide guidelines and training on the process for 

pursuing alternative assessments, BIE officials told us that they have taken 

a preliminary step by developing a presentation that should be available to 

Page 14 GAO-08-1125T 
attendees of the National Indian Education Conference in October 2008. 

Finally, they stated that the contractor that they have hired is also working 

with them to establish a process that will include internal time frames to 

ensure more timely communication with tribal groups. 

Mr. Chairman, this concludes my prepared statement. I would be happy to

respond to any questions you or other Members of the Subcommittee may 

have. 

For further information regarding this testimony, please contact me at 

(202) 512-7215. Betty Ward-Zukerman, Nagla’a El-Hodiri, and Kris 

Trueblood made key contributions to this testimony. 

GAO Contacts 

Page 15 GAO-08-1125T (130884) 
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