TITLE
12 - EDUCATION
Section 12.01 - General Provisions
12.01.01 Purpose
The purpose
of this Title is to provide a vehicle whereby the Tribe may directly
intervene to provide assistance to any child covered by this Title and
to create a mechanism whereby the Tribe works cooperatively with schools
and school districts that are located in whole or part on the Nisqually
Indian Reservation or who educate students covered by this Title in
order to improve the attendance of children in the Nisqually Tribal
Community and to ensure that they are educated to their full potential.
Historical and Statutory Notes
This Title
enacted July 15, 1999.
12.01.02 Coverage
This Title
and its provisions shall apply to all children enrolled or eligible
for enrollment in the Nisqually Tribe and their parents. Coverage may
be extended to other Indian children who reside on the Nisqually Indian
Reservation or otherwise have social ties to the Nisqually Community
and their parents, provided that tribal resources are available after
the needs of Nisqually children have been met, and provided further,
that said children and their parents agree to be bound by this Title.
12.01.03 Sovereign Immunity
The sovereign
immunity of the Nisqually Indian Tribe shall in no manner be waived
by this Title. The employees, appointees and volunteers of the Nisqually
Indian Child Welfare Department and all other Nisqually social and governmental
services are cloaked with the sovereign immunity of the Nisqually Indian
Tribe and are not liable for the inability or failure to provide services
to any person.
12.01.04 Severability
If any
provision or application of this Title is determined by review to be
invalid, such determination does not render such provision inapplicable
to other persons or other circumstances nor invalidate any other provisions
of this code.
12.01.05 Repealer
This code
is to be interpreted to supersede and replace all conflicting laws,
rules or regulations of the Nisqually Indian Tribe.
12.01.06 Definitions
For the
purposes of this code unless otherwise expressly provided, the following
definitions shall apply:
(a) Court
- The Nisqually Tribal Court.
(b) Minor
- Any child under eighteen (18) years of age, excluding emancipated
minors.
(c)
Parent - A parent, guardian, or other person having legal custody
of a child.
(d) School
- As used in this Title "school" shall include the following:
(i)
The state-supported public school district within which the child
resides; or
(ii)
A private school or extension program approved either under tribal
or state law; or
(iii)
Chief Leschi School; or
(iv)
Wa-He-Lut School; or
(v)
A home-based instructional program as authorized pursuant to state
law, or approved under tribal law designed to allow the child and
parent to administer to the unique needs of the child.
(e)
Tribal Council - The Nisqually Tribal Council.
(f)
Tribe - The Nisqually Indian Tribe.
Section
12.02 - School Attendance Requirements
12.02.01 Mandatory Attendance
All parents
of any minor child who has been enrolled in a school and is covered
by this Title shall cause such child to attend school and such child
shall have the responsibility to and therefore shall attend for the
full time when such school may be in session.
12.02.02 Exceptions to Attendance Provided
A child
and his or her parents shall be excused from the requirements of this
Title and shall not be subject to the penalties set out herein if:
(a)
The school attended by the child has excused such child from attendance
because the child is physically or mentally unable to attend school
and the school is providing all legally required services in a home-based
or other approved program;
(b)
The child is attending a residential school operated by the Tribe,
other Indian education agency, or the department of social and health
services;
(c)
The child has been temporarily excused upon the request of his or
her parents for purposes agreed upon by the school authorities and
the parent, provided that such excused absences shall not be permitted
if deemed to cause a serious adverse effect upon the student's educational
progress; or,
(d)
The child is temporarily absent from school with the consent of his
or her parents in order to attend cultural events or for other cultural
purposes; or,
(e)
The child is sixteen years of age or older and:
(i)
The child is regularly and lawfully employed and the parents agree
that the child should not be required to attend school; or,
(ii)
The child is emancipated according to state or tribal law; or,
(iii)
The child has already met graduation requirements in accordance
with the State Board of Education rules and regulations; or,
(iv)
The child has received a certificate of educational competence (GED)
under rules and regulations established by the State Board of Education;
or,
(v)
The child has already met graduation requirements, if any, that
are lawfully imposed by the Nisqually Tribe and that preempt state
requirements.
Section
12.03 - Cooperative Agreements
12.03.01 Cooperative Agreement with School
(a)
The Nisqually Tribe may enter into cooperative agreements with any
school or school district which educates students covered by the Title
for purposes of increasing and improving the attendance of children
covered by this Title or addressing behavioral problems that could
lead to a student covered by an agreement being removed from school.
(b)
All agreements authorized under this part shall be in writing and
shall be approved by the Nisqually Tribal Council. No such agreement
shall waive the sovereign immunity of the Tribe, its agencies, employees
or agents.
(c)
Every agreement entered into under the authority of this section shall
contain the following provisions:
(i)
The cooperating school shall refer to the attendance officer designated
under the agreement all enrolled students covered by the agreement
who have failed without valid justification recurrently or in excess
of three (3) days per quarter to attend school; and,
(ii)
The cooperating school may refer to the attendance officer children
who are alleged to have discipline problems and/ or not achieving
academically; and,
(iii)
The cooperating school shall agree not to suspend, expel or take
away the credits of a student referred under a cooperative agreement
as allowed under this Title after the referral to the appropriate
Tribal agency provided under the agreement, unless suspension or
expulsion is required because the child creates a danger to himself/
herself and/ or others, or the school; and,
(iv)
The Tribe shall agree to enforce the provisions of this Title with
respect to each child referred by a school to the Tribe. In acting
under this provision, the Tribe, and its designated attendance officer
and appropriate agency shall work with and in cooperation with the
school in order to develop the best program and plan to correct
the attendance or discipline problems of the referred child; and,
(v)
The Tribe shall in each cooperative agreement designate a tribal
employee to act as attendance officer; and,
(vi)
Referrals of students who are not enrolled or eligible for enrollment
in the Nisqually Tribe shall be accepted only when tribal resources
are available after the needs of Nisqually children have been met
and when the student and the student's parent or guardian consents
to the referral and agrees to participate with the Tribe pursuant
to the referral and be bound by this Title.
Section
12.04 - Tribal Attendance Officer
12.04.01 Tribal Attendance Officer - Appointment
To aid
in the enforcement of this Title, tribal attendance officers shall be
appointed by the Tribal Administrator and shall be under the direct
supervision of the Social Services Department. Appointment may be from
existing staff or new staff authorized by the Tribal Administrator.
The Administrator shall approve attendance officers for each cooperative
agreement entered into under this Title, and may also appoint attendance
officers to act in other circumstances.
12.04.02 Tribal Attendance Officer - Duties
Whenever
a child is referred to a tribal attendance officer pursuant to a cooperative
agreement entered into as provided under this Title, or whenever a parent
of an enrolled child or a tribal official informs a tribal attendance
officer that a child required to attend school fails to attend school
without valid justification recurrently or for an extended period of
time, the attendance officer shall where appropriate take some or all
of the following actions:
(a)
Inform the child's custodial parent(s) by a notice in writing and
by other means reasonably necessarily to achieve notice of the fact
that the child has failed to attend school recurrently or for an extended
period of time; and,
(b)
Schedule a conference or conferences with the custodial parent(s)
and the child at a time and place reasonably convenient for all persons
included for the purpose of discussing the causes of the child's absences;
and,
(c)
Take steps in coordination with the school that the child is required
to attend to eliminate or reduce the child's absences. These steps
may include, where appropriate, adjusting the child's school program
or school course assignment, providing more individualized or remedial
instruction, preparing the child for employment with specific vocational
courses or work experience, or both, and assisting the parent or student
to obtain supplementary services that might eliminate or alleviate
the cause or causes for the absence from school; and,
(d)
Provide additional or continuing counseling for the parent(s), the
child, or both, and provide assistance in obtaining access to testing,
assessments or any other program that is reasonably designed to correct
the attendance problems of the child, insuring that the school or
school district is meeting its legal requirements to meet the child's
learning needs; and,
(e)
In those situations where a school refers a child for discipline problems
to the tribal attendance officer, the attendance officer in cooperation
with the school shall work with qualified persons to determine the
cause of the problem and develop a program that is designed to provide
the child with a positive learning environment, which program can
include the child and the parent(s); and,
(f)
If the above actions are not successful in substantially reducing
a student's absences from school or if the parent or child refuse
to comply voluntarily, the attendance officer through the Tribal prosecutor
may petition the court to assume jurisdiction under this Title.
(g)
Notify the Nisqually Indian Child Welfare Department of the referral
and the actions being taken pursuant to this Title.
(h)
Make recommendations to the Tribe regarding services which are available.
(i) Develop
plans and strategies for prevention of attendance problems.
12.04.03 Reports by Tribal Attendance Officer
(a)
The attendance officer shall report biannually to the ICW Committee,
on petitions filed alleging a violation by a child under this Title.
The report shall at a minimum contain:
(i)
The number of petitions filed by the attendance officer;
(ii)
The frequency of each action taken under this Title prior to the
filing of such petition;
(iii)
Disposition of cases filed with the Tribal Court, including the
frequency of orders issued to enforce a court's order.
(b)
The attendance officer shall make such other reports as are requested
by the Tribal Council or the ICW Committee.
Section
12.05 - Tribal Court Action
12.05.01 Petition to Tribal Court
(a) If
action taken pursuant to subsection 12.04.02(a)-(e) is not successful
in substantially reducing a student's absences from school or if the
parent or child refuse to comply voluntarily, the attendance officer
through the Tribe's Presenting Officer may petition the court to assume
jurisdiction under this Title.
(b)
A petition requesting court action may be filed with the court by
the parent of such child or by the attendance officer through the
Tribe's Presenting Officer at the request of the parent.
12.05.02 Petition Contents
A petition
for a court action under this Title shall contain the following:
(a) A
statement that the child has unexcused absences during the current
school year and that actions taken by the attendance officer have
not been successful in substantially reducing the child's absences
from school;
(b)
A statement that court intervention and supervision are necessary
to assist the Tribe or parent to reduce the child's absences from
school;
(c)
The name, age, school and residence of the child and the names and
residences of the child's parents; and
(d)
Facts that support the allegations set forth in the petition and a
general request for relief available under this Title.
12.05.03 Notice of Hearing
(a) When
a petition is filed under subsection 12.05.01, the court shall schedule
a hearing at which the court shall consider the petition. Notice of
the hearing shall be provided to the following persons:
(i)
The child;
(ii)
The child's parent(s);
(iii)
The tribal attendance officer;
(iv)
The tribal prosecutor; and,
(v)
Any other person whose presence is required by the court.
(b) Service
of notice shall be made either:
(i)
By delivering a copy to the person named; or
(ii)
By leaving a copy at his or her residence with any competent person
sixteen (16) years of age or older who resides there; or
(iii)
By sending a copy to the person's last known address by certified
mail, return receipt requested and by regular mail. Service shall
be considered complete three (3) days after the date of mailing.
12.05.04 Rights of Parties at Hearing
(a) All
parties to a court proceeding under this Title shall have the following
rights:
(i)
The right to have a legal representative advise and represent them
at their own expense;
(ii)
The right to subpoena witnesses;
(iii)
The right to introduce, examine and cross-examine witnesses;
(iv)
The right to discover, offer and inspect evidence;
(v)
The right to present arguments and statements;
(vi)
A party need not be a witness against himself or herself.
(b)
There is no right to a jury trial under this Title.
(c) The
court shall advise the parties of the availability of public defenders
and/ or low cost legal services.
12.05.05 Court Orders
If the
Court finds that the allegations in the petition have been established
by a preponderance of the evidence, the court shall grant the petition
and may order the child and/ or the parents to take such action as the
court determines will most likely cause the child to return to and remain
in school.
12.05.06 Penalties for Failure to Comply
(a) Any
parent or child who fails to comply with the court's order within
the specified time after being ordered to comply by the Tribal Court
pursuant to an action initiated pursuant to this Title, shall be subject
to a fine of not more than twenty-five dollars ($ 25.00) for each
day of non-excused absence from school.
(b)
Upon a showing of financial hardship, the court may order community
service hours in lieu of payment of a fine imposed. Each hour of community
service shall reduce the fine by the amount of federal minimum wage
at the time of sentencing. Adequate supervision must be available
before community service hours are imposed.
(c)
It shall be a defense for a parent charged with violating this Title
to show that he or she exercised reasonable diligence in attempting
to cause a child in his or her custody to attend school or that the
child's school did not perform its duties as required under the law.
(d)
Any fine imposed on a parent may be suspended upon condition that
the parent participate with the Tribe, the school and the child in
a supervised plan for the child's attendance at school or upon condition
that the parent attend a conference or counseling scheduled by the
tribal attendance officer for the purpose of analyzing the causes
of a child's absence, or on condition that the parent comply with
any other plan determined to be appropriate to assist the child to
attend school.
(e)
The Court may suspend any fine imposed on a child if the child agrees
to comply with a plan developed by the tribal attendance officer,
as it may be modified by the Court.
Section
12.06 - Enforcement Provisions
12.06.01 Collection of Fines
Whenever
the Tribal Court orders the payment of a fine to enforce the provisions
of this Title, that fine shall be entered as a judgment of the Court.
12.06.02 Child in Need of Care Proceeding
The failure
of a parent to comply with an order entered pursuant to this Title may
be grounds for court action in any action brought pursuant to the Nisqually
Child Welfare Code.
12.06.03 Tribal Law Enforcement Authority
Tribal
law enforcement is authorized to take into custody any child under the
jurisdiction of the Nisqually Tribe, when the attendance officer has
reasonable grounds to believe that the child may be a truant from school,
and thereafter to return such child to his/ her parents, for investigation
and explanation, or to the school which he/ she should properly attend.
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