Draft Concept Paper: A New Indian Education Act

We already have a great deal within the statute which speaks to what we want to happen with Indian education-a lot of fine words and pronouncements- but every mechanism available to implement them, which may mention American Indian involvement, relegates that involvement to an ‘advisory’ role. The advisory structure in Indian education is a problem to getting anything done. Parent advisory committees and tribal advisory input in most of ESEA is impotent and what is being asked in terms of advice is beyond the competence of these committees, even with knowledgeable staff. Assuming that what is requested could be done with perfection, the advice is none the less advisory carrying no impact or effect. This is the area for tribal government to step up to the plate in terms of authority and defining a work for a Tribal Department of Education connected to schools

The fact that these areas are a part of statute and however weak the advisory mechanisms are, it is important to remember Congress intends an Indian voice or input. It is not a great stretch to say, the current arrangement does not work indeed it’s rarely paid any attention and what Congress intends needs a different structure i.e. A tribal government voice for Indian education

Examples- Comprehensive Plan Development

Title VII Section 7114 (b) requires a description of a comprehensive program for meeting the needs of Indian children served by the local educational agency, including the language and cultural needs of the children That plan must first describe how the comprehensive program will offer programs and activities to meet the culturally related academic needs of American Indian and Alaska Native students (section 7114 (b) (1)

The statute doesn’t provide a definition of culturally related academic needs or language and cultural needs. Instead the statute provides a non exclusive list of possible activities but more importantly provides a vehicle for locally defining what the culturally related academic needs and the language and cultural needs are that requires the involvement of Indian parents. The statute requires a comprehensive local assessment and prioritization of the unique educational and culturally related academic needs of the American Indian and Alaska Native students, requires a description of how the best available talents and resources, including individuals from the Indian community will be used to meet the needs of Indian students and requires an assurance that the comprehensive program was developed in open consultation with the parents of Indian children and parents

There must also be within the comprehensive plan a description how the comprehensive plan is consistent with the State and local plans submitted under other provisions of this Act; and includes academic content and student academic achievement goals for such children, and benchmarks for attaining such goals, that are based on the challenging State academic content and student academic achievement standards adopted under Title I for all children. It must explain how Federal, State, and local programs, especially programs carried out under Title I, will meet the needs of such students; the professional development opportunities that will be provided, as needed, to ensure that teachers and other school professionals who are new to the Indian community are prepared to work with Indian children; and that all teachers who will be involved in programs assisted under this subpart have been properly trained to carry out such programs and describes how the local educational agency will periodically assess the progress of all Indian children enrolled in the schools of the local educational agency, including Indian children
who do not participate in programs assisted under this subpart, in meeting the goals described in paragraph. Lastly the plan must demonstrate how funds made available under the formula grant will be used.

Ideas for statute change
Provide that Tribal Departments of Education as a delegated authority of a tribal governing body are allowed to develop and submit the comprehensive plans required in this section of the Title for all schools, federal and tribal in their jurisdiction. Tribal departments would seek the input of Indian parents, decide what is meant by culturally related academic needs so that the provisions can be adequately addressed, be responsible to do a complete up to date comprehensive needs assessment of the actual children attending all the schools in the region. The statute requires that comprehensive plans be ‘consistent’ with state and local plans submitted (it does not say the same) that includes academic content and student academic achievement goals for (Indian) children that are “based upon” the challenging state academic content and student achievement standards adopted under Title I for all children. This is an important area as the basis for standards is the federal law which requires states to comply. Under another section, tribal governing bodies can waive the state AYP and Secretary’s version for Federal schools. It still must pass review and be accepted by a federal authority. Well worked out content and achievement standards that are “consistent” appears a possibility as well as comprehensive plans that are consistent with state and local plans. If done well the comprehensive plan could be what is called a tribal education plan of the same order as a state or local education Plan.

The next authority of a tribal department of education, dependent on the level of authority incorporated could be to either determine and/or negotiate with state school districts and the state broadly “ how Federal, State, and local programs, especially programs carried out under Title I, will meet the needs of such students; the professional development opportunities that will be provided, as needed, to ensure that teachers and other school professionals who are new to the Indian community are prepared to work with Indian children; and that all teachers who will be involved in programs assisted under this subpart have been properly trained to carry out such programs and describes how the local educational agency will periodically assess the progress of all Indian children enrolled in the schools of the local educational agency, including Indian children
who do not participate in programs assisted under this subpart, in meeting the goals described in paragraph. Lastly the plan must demonstrate how funds made available under the formula grant will be used.”

The proposal that was discussed on the phone would allow tribal departments of education to determine for all kids white and Indian which there is no current statutory possibility. What is possible is elevating a tribal governing body through a tribal department of education to do what is required for Indian children in Title VII that engages what is intended for all of ESEA.. Because there are multiple schools and school districts within most tribal jurisdictions, the proposed idea of tribal state or school district agreement might have possibility for negotiation to agree to the alignment of all ESEA federal resources available for Indian children to meet their needs within a school as a distinct concern. The standards of negotiation and framework for Tribes would as well as level of federal oversight required for states and BIE schools can be described in statute. There is a basis for something real that allows a tribal government voice in the education of Indian children that is infinitely more rigorous than what the feds stand by and allow to occur under the current arrangements. The possibility to do this doesn’t require a tribe to do it but only if the tribe wishes to do so and has the capacity to accomplish the end objective then it should be allowed. Capacity essentially means have funds and positions to do so at least to the level that local school districts and/states must have capacity. This framework makes specific something real about what is meant by education being an aspect of the trustee relationship.

There are some other areas to consider that will help back up this idea. Write in statute the necessary changes that allow tribal governments to be recognized as a local government for purposes of FERPA.

Also though it is a small program these days JOM is extremely important to the case for providing for Tribal departments of education and for the statutory concept of Tribal State Agreement for education. The point here is to not mess with the current JOM law but use it to reinforce the idea that congress also intends and allows a negotiated agreement in this case contract between a tribe and school district under a federal education program. If the scope of this type of authority as exists in JOM encompasses directly or through an agreement what is intended for Indian children in ESEA gets the point across.

Consider Impact aid also, an ESEA title also in the scope of the comprehensive plan required and one that almost exclusively involves school districts educating Indian students though it also includes non Indian students living on trust status land. The requirements here for input are about as weak as you can get but Congress still intends parental input with tribe having a say so to complain to the Secretary if there are not policies in place to allow inputs. Include these input requirements the same as intended in developing the compressive plan and programs under title and negotiated agreements. This is among the most sensitive areas but can be allowed to be included within the proper framework for negotiation. Schools district typically see this as there operational support money which it is of course but it is also required to subject to be considered in ways which support the goals of ESEA.

Sections of NCLB that pertain to the authority of tribal governing bodies to establish standards and assessment systems are important to consider what the statute intend for tribal governing bodies with regard to establishing standards and for federal assistance when it comes to this area. This is important in a tribal governing body through functioning tribal department of education with the type of support intended could make this area truly viable. It again is also not a teach to imagine that what is developed for federal schools and approved by the same Education secretary could be applied for state as indicted in the section regarding compressive plans which I believe are also required of tribal and federal schools.

NCLB sections affecting Tribal Alternative AYP

“A) DEVELOPMENT OF DEFINITION–
(i) DEFINITION– The Secretary of the Interior, in consultation with the Secretary (of Education) if the Secretary of Interior requests the consultation, using the process set out in section 1138(b) of the Education Amendments of 1978, shall define adequate yearly progress, consistent with section 1111(b), for the schools funded by the Bureau of Indian Affairs on a regional or tribal basis, as appropriate, taking into account the unique circumstances and needs of such schools and the students served by such schools.
(ii) USE OF DEFINITION– The Secretary of the Interior, consistent with clause (i), may use the definition of adequate yearly progress that the State in which the school that is funded by the Bureau is located uses consistent with section 1111(b), or in the case of schools that are located in more than one State, the Secretary of the Interior may use whichever State definition of adequate yearly progress that best meets the unique circumstances and needs of such school or schools and the students the schools serve.
(B) WAIVER– The tribal governing body or school board of a school funded by the Bureau of Indian Affairs may waive, in part or in whole, the definition of adequate yearly progress established pursuant to paragraph (A) where such definition is determined by such body or school board to be inappropriate. If such definition is waived, the tribal governing body or school board shall, within 60 days thereafter, submit to the Secretary of Interior a proposal for an alternative definition of adequate yearly progress, consistent with section 1111(b), that takes into account the unique circumstances and needs of such school or schools and the students served. The Secretary of the Interior, in consultation with the Secretary if the Secretary of Interior requests the consultation, shall approve such alternative definition unless the Secretary determines that the definition does not meet the requirements of section 1111(b), taking into account the unique circumstances and needs of such school or schools and the students served.
(C) TECHNICAL ASSISTANCE– The Secretary of Interior shall, in consultation with the Secretary (of education) if the Secretary of Interior requests the consultation, either directly or through a contract, provide technical assistance, upon request, to a tribal governing body or school board of a school funded by the Bureau of Indian Affairs that seeks to develop an alternative definition of adequate yearly progress.”

A New Indian Education Act

If you can pull together all these areas together by scope of authority and what is intended in existing statute into a permissive section of the statute for tribal departments of education that allows Tribal governments through tribal departments of education to have the authority instead of the advisory input and provide for tribal state education agreements under a federal framework requiring negotiation with certain standards and federal review which is currently required any way, you then have a new Indian education Act. It is not necessary to change the location of these sections for schools within tribal jurisdictions for those tribes which do not want to do this unless in fact we should generally change locations of certain sections of Title VII such as elevating the language about the trustee status and goals for Indian education and requirements for comprehensive plans and alignment of all federal programs to meet the needs of Indians student into the operating principals of ESEA including a statement of purposes unique to Indian education which state governments must follow. This can be done as simply by directly stating and referencing the specific sections of the Indian education Act in this section of Title I. There also needs to be an appropriation a piece of the huge Title I pie for tribes to actually do what is intended..

If we also consider and tribal departments of education apply for the possibility of utilizing schools as service centers for Indian student and families enrolled in the school which is a program possibility in I believe Title I, It is possible and practical to better coordinate the health, social and other services available for students attending the school and the possibility of developing a local Native children’s agenda becomes a real on the ground possibility. All these areas as we know impact the well being of children and impact the capacity of children to learn.
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