At the NIEA Legislative Summit in February at Washington DC, William Mendoza was asked about the administration’s proposal to move the Bureau of Indian Education (BIE) to the Department of Education that had been floated at consultations with tribal leaders a year earlier. Mr. Mendoza, a Rosebud tribal member, is President Obama’s appointee as Director of the White House Initiative on American Indian and Alaska Native Education established by the December 12, 2011 Executive Order 13592 -- Improving American Indian and Alaska Native Educational Opportunities and Strengthening Tribal Colleges and Universities.
As he began to explain that the idea of moving the BIE to the Department of Education had been uniformly rejected by tribal leaders while reminding all in attendance that the government had moved the Indian Health Service without tribal consultation, Charles Rose, the former general counsel at the US Department of Education rose from his seat to stand by Mr. Mendoza to explain that the idea was his. Executive Order 13592 that Mr. Mendoza had come to explain may just be a reincarnation, albeit a “lighter” version, of the administration’s proposal to the move the BIE to the Department of Education through a negotiated MOU between the two federal agencies.
The mission and functions of the Executive Order particularly its central function of “strengthening the relationship between the Department of Education, which has substantial expertise and resources to help improve Indian education, and the department of the Interior and its BIE, which directly operates or provides grants to tribes to operate an extensive primary, secondary, and college level school system for AI/AN children and adults” essentially seeks transferring the leadership of the BIE to the Department of Education in order to improve Indian education. The other functions of the executive order such as ensuring AI/AN participation in the development and implementation of “key administration priorities”, coordinating programs, reporting on policy and programs, building capacity, streamlining process for entering into agreements for educational studies, developing data sources encouraging partnerships, all essentially serve the central function of the Executive Order to accomplish a “move” of the BIE to the Department of Education leadership through the development of the required Memorandum of Agreement between the two federal agencies.
Mr. Rose had resigned by midyear 2011 to join the Drinker Biddle law firm that represents private “for profit” higher education institutions “at a time when the federal and state governments are increasing their oversight of higher education institutions and the distribution of student loan funds” according to the press release announcing his new position. Why a former Obama appointee as general counsel at the US Department of Education and at the time the new lawyer with Drinker Biddle was present at the NIEA legislative summit and came to the podium to assist Bill Mendoza is curious. Mr. Rose said in taking the blame for the proposal to move the federal agency home of the BIE to the Department of Education that the performance of BIE schools, many of them tribal controlled schools, was “so terrible that they had to propose something dramatic”.
It should escape no one’s imagination that the same federal government that has held every state school system in the country accountable for results for 11 years with very limited or no results under the regime of the No Child Left Behind Act passed in 2001, state school systems that are no better in terms of performance with the same students as those attending BIE schools is the same federal government running the BIE. When it comes to the federal Indian school system the federal government is both the school system involved and the agent of accountability. Shifting federal agency locations of the Federal Indian school system or by negotiating an MOU between two federal agencies to potentially increase the bureaucratic oversight and management of the Federal Indian school system will not likely change the results. When it comes to the federal government as schoolmaster there is no one left to blame for the “terrible results” but the same federal government unless the blame be given to American Indians and the statutes that relate to Indian self determination and control in the education of American Indians that have been unattended and declining as if it were a foreclosed house since NCLB was enacted through two administrations.
The proposal to move the BIE to the Department of Education is not new as it even predates the Department of Education itself when there was but an Office of Education in the Department of Health Education and Welfare after the Elementary and Secondary Education Act (ESEA) passed in 1965. It has been proposed a number of other times since then; each time it has been uniformly rejected by tribal leaders. The proposal to transfer the BIE to the Education Department may be a lot of things but it is not a “dramatic” proposal. Certainly it’s not a panacea that will change anything except the possibility that the government’s accounting of “terrible results” will be improved.
The MOU between Interior and Education currently in draft form pending a series of tribal consultations may well be a necessary step in terms of more effective and efficient management of the Federal school system however the executive order rationalizes the need for an MOU because evidently the BIE currently doesn’t have the “expertise and resources” to improve Indian education. What expertise and resources might that be that isn’t already in place and available all along to the BIE? It might be advantageous to consider why another layer of accountability measures as in the stated goals of the executive order on top of the measures already in place through NCLB and a MOU between two federal agencies is unlikely to make any difference.
The Indian Education Act is 40 years old this year with 25% of that history now under the regime of NCLB. An entire school-age generation of American Indian students has been attending school using this approach and yet this approach is somehow not blamed for the “terrible results”. What is dramatic about both the idea to move the BIE to the Department of Education and the lighter version of the same idea in the Obama Executive Order and MOU is that it is offered as a way to improve the performance of American Indian students in schools just at a time when the federal government has already managed and regulated most of the remaining vestiges of potential for genuine Indian self determination and control out of the system through the No Child Left Behind (NCLB) Act of 2001.
Trends since NCLB was passed are very troubling to the future of self-determination and control as well as the development of quality uniquely defined education programs for American Indians that are both effective and meaningful. Despite significant policy language to the contrary in Title VII supporting the education of American Indians and Alaska Natives, the Department of Education has chosen to avoid the policy language and requirements of the statute. Rather than meeting the purposes of the Indian education act and implementing a reform agenda focused on the education of American Indian students, critical sections of statute, those dealing with a comprehensive needs assessment, the development of a comprehensive Indian education plan linked to state plans required of Title I, are simply not implemented. When it comes to the education of American Indian students NCLB envisions and requires a unique approach in each school developed with significant Indian parental involvement but it is not implemented. NCLB contrary to the actual intentions of the statute has in a sense taken the Indian out of Indian education.
Program funds intended on creating a unique Indian education presence in a school including the development and offering of curriculum related to the unique cultural heritage of students have not been supported as these funds have been increasingly utilized to support “time added” approaches such as tutoring, homework assistance, after school efforts at preparing students to take tests clearly allowable under Title I, supplanting the purposes of the formula grant program. With Title VII increasingly looking like Title I and with large sections of the required statutory provisions related to creating an Indian education presence in schools ignored, the Indian Education Act itself is at risk of being left behind.
And now an evaluative question originally posed by the Office of Management and Budget (OMB) as early as 1999 through the Bush Administration to a recent proposed study by a contractor to the Office of Indian Education, “Does the Indian Education Act formula grant program make a difference in the academic achievement of American Indian students?” It has been posed in a number of different ways, as a direct question about the formula grant program, as a question about whether culturally based education makes a difference in the academic achievement of American Indian students and now identifying effective Indian education programs funded by the formula grant using achievement as the criteria when achievement is not a direct purpose for the funds. The formula grant program has an appropriation of $104 million out of a total of $127 million dollar budget for Indian education. That represents only an approximate $300 per student. Outside of the fact that $300 per student can never make a difference in the achievement of Indian students no matter how well designed any effort may be, the purpose of the statute to create a comprehensive “presence” for Indian education throughout the school is not implemented. To consider holding the Title VII formula grant accountable for results when the appropriation is so small, the allowable programs are not directly connected to achievement and large sections of the requirements are not implemented by the federal government seems to be a set up for declaring the program a failure.
When NIEA held hearings in Indian Country in 11 different locations, a number of tribal leaders and parents reported that Indian students complained about being blamed for the schools failure to accomplish their achievement by the administrators and teachers in the school. And now the possibility that the Indian Education Act itself will be blamed for the failure of Indian students when all along it is NCLB and the federal management or more properly non-management of the Indian Education Act that should be called into question.
The No Child Left Behind Act (NCLB) 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. These are the formally defined education standards and assessments of those standards through standardized tests. NCLB recognizes that American Indian students in tribal and federal schools have unique needs and special circumstances and consequently allows tribal groups to waive all or part of the Secretary’s authorized definition of AYP and propose an alternative. Presumably this allows tribes to developed their own standards and assessments and would provide a significant opportunity toward the development of tribal education.
The Secretary of Interior in 2005 during the Bush Administration determined that each tribal and federal operated BIE funded school would use the definition of adequate yearly progress (AYP) of the state in which the school was located. MOU’s were initially negotiated with states allowing access to the states’ assessment systems without tribes being consulted or informed of the process. Assistance from the Department of Education to assist tribes with the process of developing their own standards had been returned to the Department of Education. By 2008 only half of the MOUs were in place. There were significant complaints that the BIE had not provided assistance to tribes to develop their own education standards and assessment systems or to provide guidance on how to apply. Currently there remains reluctance to provide assistance though the need for assistance is mentioned in the draft MOU.
It is not farfetched to ask what a tribally “controlled” school is after all. If a school within a reservation was funded by the federal government and was required to follow state standards and utilize state assessment systems, I would have guessed that it is a state public school receiving federal impact aid and other sources of federal moneys to educate Indians students. The distinction is less clear ever since the Secretary of Interior ‘turned’ over tribal schools to their particular state government’s definition of what is an adequate education program for American Indians in 2005.
There are now 37 state school systems formally applying for waivers from NCLB to have greater flexibility. These waivers devised by the Obama Administration because “Our children can’t wait for congress to fix No Child Left Behind” is contemplated for the BIE formally designated as a State Education Agency (SEA) for purposes of NCLB. A Request for Waiver is now proposed and it is now out for tribal consultation. The Executive Order, the proposed MOU and the proposed Wavier Request fail to consider the possibility of greater flexibility consistent with existing statutes related to the education of American Indians also in NCLB. Instead all three Obama administration initiatives opt for more administration, management and uniformity of all BIE funded tribal and federal operated schools.
U.S. Secretary of Education Arne Duncan is quoted as stating in reference to the creation of waivers that "The best ideas to meet the needs of individual students are going to come from the local level. Like the first round of waiver applicants, these plans will protect children, raise the bar and give states the freedom to implement reforms that improve student achievement," There is hardly a tribal government leader, tribal school official, Indian educator or parent that would disagree with this sentiment. However, the formal structure of Indian self-determination and control that was designed to generate “the best ideas to meet the needs of individual students…from the local level” in statute has been on the decline since NCLB. If American Indian tribes were to request a waiver from NCLB instead of the BIE acting in “loco-parentis” for tribal governments, a place to start would be to request the BIE and the Department of Education at least follow the existing provisions in the NCLB statute as it pertains to education of American Indians and fully implement the law.
The BIE request for a waiver that came after the MOU had circulated tribal consultations is an attempt not for flexibility and certainly not to fully implement the current provision of NCLB specifically related to Indian education. Instead it seeks to place all BIE funded schools, tribally operated and government operated schools under a “unified accountability system”
“At the center of the BIE’s reform approach is the creation of a unified accountability system for all BIE-funded schools. This component is critical, because the BIE — unlike the states — lacks a single, coherent accountability system. BIE is required to utilize the respective accountability systems of the 23 states in which its schools are located. For this Flexibility Request, the BIE proposes to adopt a single unified accountability system consisting of a single set of academic standards, assessments, and methodology for calculation of academic performance. Student achievement data then will be comparable across the BIE school system”.
This avoids the use of state standards by replacing them with federal standards and assessment system for all tribal and federal schools but avoids the possibility of allowable tribal government alternative standards and assessment systems. Unified accountability systems, allowing comparable achievement data across the BIE school system, will not improve achievement nor will it do anything to improve the quality and effectiveness of education programs that could potentially accomplish achievement. For that, one would need viable local control and self-determination with educators and education leaders focused on an inspiring vision for education that connects to the real lives of Indian students in tribal communities that focuses on the needs of the tribe and its communites, and provides opportunities to engage in viable local economic and social development.
A federal Indian education policy to support local education development that will make a difference must also be broader than what could be accomplished just in schools. It must include a coordinated and focused economic development strategy as well as a locally coordinated children’s and youth policy related to all the various efforts focused on the well being of children and youth. When tribal leaders rejected the proposal to move the BIE to the Department of Education the short answer as to why had to do with how they viewed the trustee relationship. However they understood that meant more than just education and its federal agency location but all the other various tribal programs and efforts that were focused on tribal government and local development. Instead, what is offered is an uninspiring vision of bureaucratic uniformity as if tribes were a fiction socially, culturally and politically in terms of education governance. It is a strange thing about language and the twisting of the meaning of words to even consider the BIE waiver request as a flexibility request as it seeks no flexibility but greater bureaucratization and uniformity.
There was a time before in the history of Indian education policy when there was a uniform set of standards and curriculum. The “Uniform Course of Study” was developed by Estelle Reel as Superintendent of Indian Schools from 1898 to 1910 and became the standardized required curriculum of all federal schools. The lack of flexibility and lack of deference to cultural and social contexts and local needs for American Indian students and tribal communities became the focus of significant criticism and national Indian education reform in the late 1920’s beginning with the Merriam Report of 1928 and should now as well for the same reasons. State governments would likely be strongly opposed to this type of federalization of their public school systems though they are looking toward the common core curriculum standards but not as a federal mandate. So ultimately Indian students and schools may be subject to the future state standards that states may adopt as well. We shall see how tribal governments and tribal leaders respond on the consultation circuit that has something new in education policy to present to tribal leaders every couple of weeks.
Title VII of the NCLB states for the first time in statute that education is an aspect of the Federal Government’s trustee relationship, “It is the policy of the United States to fulfill the Federal Government's unique and continuing trust relationship with and responsibility to the Indian people for the education of Indian children” That may be so but the trustee relationship as defined through the Indian Self Determination and Education Assistance Act and NCLB as implemented by the BIE is essentially a contractual relationship where the government determines all the terms of the contract, provides what resources for the contract it chooses and is the sole evaluator of whether the terms of the contract have been fulfilled.
The expression “if it looks like a duck, walks like a duck and quacks, than it must be a duck” can be applied to the Indian Education Act formula grant program and to tribally controlled education. The Indian Education Act looks like Title I and tribal controlled schools look like state public schools. Added to this is the recognition that the entire structure of Indian and tribal input into schools and education programs for American Indians is advisory in character. School officials known to rarely if ever heed advisory notions about what should be the goals, objectives and approaches for the education programs provided for American Indians have now also lost significant authority due to the mandates of NCLB.
The real issue is to have a viable structure for tribal governance and control of education within tribal jurisdictions and for tribal governments to significantly influence the nature of the federal interest in the education of American Indians in school settings outside of tribal jurisdictions typically aligned with the intentions and purposes of federal funds for American Indians. How do we give a real voice to the intention that language and culture is not only important in its own right to be included in the education programs for American Indians but to recognize that education for all people is social and linguistic in character, that culture and language is the way through which everyone is educated. To deny the American Indians an educational environment and process that connects them socially and linguistically with what they are denies them the very means to accomplish the academic goals provided for them. How do we give a real voice to the educational needs of tribes and American Indian communities as tribal societies and communities as being important for schools and educational institutions to serve and not define for and on behalf of American Indian students and communities? How do we enable tribes to determine the purposes of education for their own tribes and communities that connect to their children and youth and to develop the type of standards that will define a tribal vision for education that schools must serve?
What has been left of the Indian Education Act and the Indian Self determination and Education Assistance Act is an illusion or shell of control and self determination with all the control and self determination residing with the federal government and not with tribal governments, tribal school authorities or with Indian parents and communities. Here lies the biggest danger to the development of viable self determination and control and programs that reflect the cultural heritage and respond to the needs of American Indian students, tribes and communities- that it be blamed for the very failures it has no real control over in the first place.
Ultimately we need a new Indian Education Act that brings to life the role of tribal government and sovereignty and the federal trustee relationship for education. We can no longer bury Indian education in the lack of any real accomplishment or within titles of ESEA that are not implemented and provide only a structure of Indian parental and tribal advisory input into state public schools and education programs for American Indians which is not heeded in the first place and in the case of tribal “controlled” schools where tribes have become federal contractors of what for all intents and purposes are state public schools. We need a new federal tribal vehicle for Indian education as well as economic and social development that produce results in the interest of children and youth, and the tribal societies and communities in which they live. The results of existing efforts in terms of achievement levels, dropout rates, the general level of failure and generally poor wellbeing of Indian children and youth beg attention to find a better way. The trustee relationship of the federal government to American Indian tribes should not solely be the federal governments to define. The trustee relationship is after all a relationship between two governments that emanates from treaties between the United States government and American Indian tribes as nation to nation as ratified by provisions the US Constitution.
The underlying issue is that we have in a sense outgrown the statutory “pair of pants’ that the education of American Indians was suited with through the Johnson O’Malley Act of the 1934 and the initial JOM contracts with state governments that put into place the structure of federal, state and tribal governments in the education of American Indians. We have since then been developing statutes and education policy ideas within this framework and have despite the excellence of policy ideas developed to respond to the needs of American Indian students for both effective and meaningful education programs have never found a viable vehicle within that structure to implement them and to provide the type of longevity that will produce results. The federal government in the 1930s represented the interests of American Indians to the states through contracts that included conditional provisions to ensure that the states would meet the special education needs of American Indians, maintain village elementary schools in distinctly Indian villages and guarantee that Indian students would not be deprived of any resources generally available to other students. It was soon learned that the states were primarily interested in the funds and the federal government had little inclination to do anything about compelling the states to do anything unique for Indian students. Everything has been tried since to give a voice to Indian parents and tribal governments in the education of American Indian students and whatever is put into place soon defaults to little or no voice.
What is missing and has not been tried is a structure of education governance and control for tribal governments through redefining the statutory vehicle for articulating the federal tribal relationship in education from that of a contractual relationship to a truly Nation to Nation relationship. Real tribal control lies in determining the education purposes and the education standards that will define the educational program and the contexts whereby schools will operate. The federal government must develop a more passive trustee role to allow tribal governance in education to fully emerge while protecting the tribal government interest including funding.
Any new ideas must deal with the existence of state public school systems within the jurisdictions of tribal governments and how to represent an Indian and tribal governance voice for the education of American Indian outside of tribal jurisdictions. The ideas that have been suggested include outside of fully implementing the existing statute-the development of tribal state government compacts for education under a broad federal framework particularly in reservation areas with impact aid schools where the terms and conditions of state public education of American Indians is negotiated up front- the development and funding of tribal education departments as already authorized in two statutes as currently proposed on a trial basis in the State-Tribal Education Partnership (STEP) Pilot and tribal education departments potentially receiving ESEA funds to all schools in a tribal jurisdiction-the creation of tribal-state education commissions to consider Indian education issues broadly in state public schools- the development of an all Indian state funded school district in urban areas under a structure of joint tribal state governance-development of reservation wide education networks including all state public schools through tribal government agreements with each state school district-splitting the tribal school and federal school sides of the BIE, moving the SEA functions for tribal schools to tribal governance, creating a federal tribal commission for tribally controlled education under a federal charter-develop the separate federal operated schools system as a federal national school district with a school board structure incorporating tribal representation at both the school district and LEA level-tribal governance of all existing school systems in a tribal jurisdiction or determining the contexts whereby any school system may operate within a tribal jurisdiction under a regulatory and licensing model. The list of ideas generated when considering the possibilities of tribal governments truly developing a governance function related to education can be many but then that is exactly what is necessary if we are to unleash the creative energy that would be needed to move Indian education to the next level. What is necessary is not the endorsement of any specific scheme or recommendation but the opportunity to consider and propose something brand new among tribal governments and Indian educators that will make a difference. Proposals from the Obama administration completely considered and developed within the bureaucracy and then rolled out at numerous tribal “consultations” one at a time in such a way that one never sees the entire package at once is more reminiscent of the no choice treaty days than a consultative process that could potentially develop a workable strategy and are limited in what can potentially be proposed in the first place.
Indian education policy has been placed upon every federal education policy band wagon to come along from the original Elementary and Secondary Education Act when funds were provided the federal Indian school system from this source, when the Indian Education Act of 1972 was added to ESEA to the standards based education reform movement as represented in the Indian Nations Risk Report and the Clinton presidential executive order and now NCLB and the second Bush presidential executive order, and the third Obama presidential executive order, MOU and waiver request. At a meeting of the Indian Nations at Risk Task Force, Terrel Bell, the former Secretary of Education under President Reagan who was responsible for the “Nation at Risk” Report and at the time a co-chair of the “Indian Nations at Risk” Task Force along with William Demmert Jr reminded the Task Force members as it debated two versions of the final report that it was necessary to focus on the report that was most likely to enable Indian education to get on board with the standards based education movement. Mindful of that notion, Demmert addressed the NIEA convention in San Diego in 1990 to introduce the work of the Task Force offered a cautionary advisory in conclusion “If we are to survive as distinct cultures and people we must succeed. The challenge before us is to work with our existing institutions to see that this occurs. If our existing educational institutions will not or cannot change, and I expect them to, then they must be abandoned and new and different ones created.”
Those institutions have not and cannot change under the current system of NCLB and federal management of Indian education policy. The NCLB policy bandwagon has stopped playing music and those who jumped on board are hoping to jump off when the “train” slows down if it ever does. It’s time to construct a new statutory vehicle for tribal and Indian education based on tribal sovereignty and governance that secures a future for tribal societies, communities and people and especially tribal youth, the only ones that will become the future Indian Nations of tomorrow. c.David Beaulieu 6/20/2012
