 |
Juneau, Alaska
Prepared by:
- the Rosebud Sioux Tribez
- the Mandan, Hidatsa, and Arikara Nation
- the Jicarilla Apache Tribe
- the Stockbridge-Munsee Community Band of Mohican Indians
- the Affiliated Tribes of Northwest Indians
- the Montana Indian Education Association
- the National Indian School Board Association
- the National Indian Education Association
- the Native American Rights Fund
A complete copy of this document is available for $13.00, including shipping and handling
TABLE OF CONTENTS
THE MUTUAL
INTEREST: TRIBAL STUDENTS
There are about 450,000 American Indian and Alaska Native elementary and secondary
students in this country. Located in every state, they are members of over
550 federally recognized sovereign Indian tribes.
About ten percent of tribal elementary
and secondary students attend schools operated by the Bureau of Indian Affairs
(BIA) or by tribes under contracts and grants. The other ninety percent attend
public schools. Final Report of the Indian Nations at Risk Task Force, U.S.
Department of Education, Indian
Nations at Risk: An Educational Strategy for Action at 2 (October 1991).
About half of the public schools are located off
of Indian reservations or outside
"Indian country" as that term
is defined by federal law. The rest are on
or near reservations or within
Indian country.
Available data shows that many of
these tribal students suffer from disproportionately low achievement scores,
graduation rates, and educational attainment levels. See
Statement by Michael Cohen, Assistant Secretary for Elementary and Secondary
Education, U.S. Department of Education, before the Senate Committee on Indian
Affairs on the FY 2001 Budget for Department of Education Programs that Serve
Indians (Feb. 23, 2000); Indian
Nations at Risk at 7; Bureau of the Census, Economics and Statistics
Administration, U.S. Department of Commerce, We
the First Americans at 4 (September 1993); see
also Rosebud Sioux Tribe, State
of Reservation Education Report, (1989-1990 and subsequent years). In
some places, drop out rates for tribal secondary students are at sixty percent,
or higher. Indian Nations
at Risk at 6-7.
This educational deficit severely
damages tribal communities and the nation at large - socially, culturally,
and economically. See Indian
Nations at Risk at 2;
We the First Americans at 5-6. Both Tribes and States have an interest
in helping these tribal students.
THE JURISDICTIONAL
QUESTIONS: TRIBES AND STATES
Prior to contact with non-Indians, tribes had complete and effective control
of the education of their members. See
Raymond Cross, American
Indian Education: The Terror of History and the Nation's Debt to the Indian
Peoples, 21 U. Ark. Little Rock L. Rev. 941, 945-949 (1999). Since the
founding of the United States of America, federal law and policy has transferred
governance of Indian
education - meaning primary and actual
authority for formal education - from tribal to federal to state sovereigns.
Id. at 959-694.
But what about jurisdiction?
Who has legal authority
over tribal students and the public schools that are on reservations or in
other Indian country? Do Tribes, because the students are tribal members and
the schools are on-reservation? Or do States, because school districts are
their political entities whose location on-reservation has been sanctioned
by federal law? Or, at least in some instances, perhaps where public school
students are both tribal and non-Indian, do Tribes and States have concurrent
authority?
These questions have not been conclusively resolved. The
few courts that have addressed them are reaching various results. Compare
Glacier County Sch. Dist. v. Galbreath, 47 F.Supp.2d 1167, 1171 (D.Mont.
1997) (under the "direct effect" test of Montana v. United States,
450 U.S. 544 (1981), as applied to the facts of Glacier County, a tribe
could not regulate the administration and operation of a public school located
on non-Indian fee land within a reservation) with Lewis County v. Allen,
No. 93-0382, Slip Op. at 28 (D.Idaho June 7, 1994) ("it may very well be
that by creating a school district and constructing and operating schools within
the reservation, ... [a state] create[s] a "consensual relationship" with the
tribe under the first Montana exception." ), aff'd on other grounds,
County of Lewis v. Allen, 163 F.3d 509 (Ninth Cir. 1998) (en
banc); see also Meyers v. Board of Educ., 905 F. Supp. 1544, 1578
(D.Utah 1995) ("all of the entities involved in this case - the District, the
State, the United States, and the Navajo Nation - each has a duty to educate
the children of Navajo Mountain. The duty of one does not relieve any other
of its own obligation. The precise scope of that duty may depend on facts that
have yet to be developed.").
Taking these issues to court could
consume enormous resources, including the expense of delaying or denying
improvement of education for tribal students. Rather than litigating the
issues, some tribes, states, and their political entities such as public
school districts, are choosing to enter into mutual agreements to advance
Indian education.
See generally Affiliated
Tribes of Northwest Indians and The Northwest Regional Assistance Center
of the Northwest Regional Education Laboratory, Draft Report of Findings
and Criteria for Design of Training and Technical Assistance, Models
for Collaboration: Relationships Between Tribes and School Districts in
the Northwest (Apr. 28, 2000); see
also John E. Silverman, The
Miner's Canary: Tribal Control of American Indian Education and the First
Amendment, 19 Fordham Urb. L. J. 1019, 1021(1992) ("This Note concludes
that the key to Native American educational success lies with the encouragement
of parental involvement, and the establishment of state-tribal compacts
and tribal education departments and codes.").
COLLABORATIVE
EFFORTS: PROCESSES AND RESULTS
Processes
In some instances, the law may dictate or guide the process by which Tribes
and States may reach and enter into collaborative efforts. E.g.,
Pub. L. No. 81-874, 64 Stat. 1100, as amended by Pub. L. No. 95-561,
92 Stat. 2315, requires school districts, as a condition of getting Impact
Aid funding, to consult with Indian parents and tribes regarding school
programs and activities. 20 U.S.C. 7704(a); see
also Colo. Rev. Stat. 22-32-122 (2000) (authorizing school districts
to contract with, among other entities, Indian tribes for services, equipment,
and supplies, and requiring certain provisions in such contracts).
In absence of or as a complement
to applicable law, the preparers of this Paper have found the following process
steps useful, if not critical, to successful collaboration:
- communications / introductions
/ meetings among parties;
- preparation and sharing of information,
data, needs, plans, and goals;
- sharing research on other models
/ best practices / examples of cooperative agreements and efforts;
- identification of and agreement
on mutual interests, needs, goals, and priorities;
- identification of available resources
and contributions of each party to carry out goals and priorities;
- identification of and, where appropriate,
sharing of and plans for addressing possible obstacles to reaching agreement
(i.e., legal impediments,
- confidentiality matters, opposing factions, fear of change, concerns about
loss of or changes in employment, roles, and responsibilities);
- agreements on commitments to agreement;
- willingness of both parties to
be open and honest;
- agreements on the scope of negotiations
and of the proposed agreement;
- joint development of a negotiations
process, including the possible use of third parties as facilitators or
resources;
- joint development of rules for
negotiations (this may include, for example, agreements to disagree on certain
points, but not to dwell on or even raise these);
- development of a networking process
to get input and involvement of constituencies / stakeholders / those most
affected by the proposed agreement;
- joint development of written background
materials & supporting documents for the agreement;
- holding joint public meetings
/ hearings that allow reasonable input and sharing;
- identification and assignment
of roles and responsibilities in the negotiations and networking processes;
- planning and actual negotiations;
- drafting, redrafting, and at least
some joint review of the same;
- development of joint strategies
of flexibility, options, and overcoming obstacles.
Many of these steps are set forth
in more detail in the Native American Rights Fund, Indian Education Legal
Support Project, "Presentation
/ Workshop Materials (1993, updated 1995); and, the Native American Rights
Fund, Indian Education Legal Support Project, Draft
Materials for Tribal Governance in Education (1994).
Results
- Cooperative agreements for education funding, data, and services
Several tribes have agreements with public schools that serve their members.
The Skokomish Tribe in Washington has a Memorandum of Agreement (MOA) with
the Hood Canal School District and the State Superintendent of Public Instruction
to operate a project to increase tribal student reading achievement and community
and family involvement. Under this project, tribal employees can volunteer
one hour a week to help students with reading and other school subjects. Summer
and after school curricula integrate computer technology, physical activities,
and tribal language and culture. A copy of this MOA is appended with permission
to this Paper in the Affiliated Tribes of Northwest Indians and The Northwest
Regional Assistance Center of the Northwest Regional Education Laboratory,
Draft Report of Findings and Criteria for Design of Training and Technical
Assistance, Models for
Collaboration: Relationships Between Tribes and School Districts in the Northwest
(Apr. 28, 2000).
The Swinomish Tribal Community in
Washington has a Cooperative Agreement with the LaConner Public School District
and the Skagit Islands Head Start Program for the collaborative funding and
provision of early childhood intervention services for pre-school children
and their families. A copy of this Agreement is appended with permission to
this Paper as part of the Affiliated Tribes of Northwest Indians and The Northwest
Regional Assistance Center of the Northwest Regional Education Laboratory,
Draft Report of Findings and Criteria for Design of Training and Technical
Assistance, Models for
Collaboration: Relationships Between Tribes and School Districts in the Northwest
(Apr. 28, 2000).
Tribes such as the Rosebud Sioux
Tribe in South Dakota and the Navajo Nation have reached agreements with States
and public school districts whereby the Tribes receive needed data kept by
the States and schools on tribal students. This is despite ambiguity in the
Family Educational and Privacy Rights Act of 1974, Pub. L. No. 90-247, 88
Stat. 571 (FERPA). FERPA generally prohibits public schools from releasing
student data without prior parental consent. 20 U.S.C. 1232g. Exceptions
are made for data requested by the federal and state governments, but it is
unclear whether Tribes are entitled to this exception, as well.
Under the Tribally Controlled Schools
Act of 1988, Pub. L. No. 100-297, 102 Stat. 385, tribes can operate by grants
schools formerly run by the BIA. See
25 U.S.C. 2501-2511. At least two tribal grant schools have cooperative
agreements with public school districts.
The Lummi Tribal Schools in Washington
have an agreement with the Ferndale School District that addresses funding
and provision of education for grant school students. By enrolling the grant
school students in the public school district, the school district receives
state funding for those students. The school district then apportions that
funding to the grant school in exchange for the grant school's provision of
educational services for the students. A copy of this agreement is reprinted
with permission in the Native American Rights Fund, Indian Education Legal
Support Project, Cooperative
Agreements in Indian Education 39-68 (October 1998).
The Cherokee Central Schools in
North Carolina have an agreement with the Swain County School District by
which the boards of each school jointly approve the use of the school district's
Impact Aid and state funds. The school district must use some of these funds
for the tribal grant school. For example, the school district provides Driver
Education, test scoring services, and teachers to the grant school. In exchange,
the grant school provides the school district with tribal language and culture
curriculum for tribal students attending the public school. A copy of this
agreement is appended with permission to this Paper.
- Co-Governance in truancy, Impact Aid funding, JOM programs, and schools
The Stockbridge-Munsee Community
Band of Mohican Indians in Wisconsin has an arrangement with the Bowler School
District to address truancy. The Tribe and the School District agreed that
additional staffing was needed to handle tribal student truancy. The Tribe
paid the entire first-year salary of a Home School Coordinator. For subsequent
years the Tribe and the School District have split the costs of this staff
position. Federal law generally allows state compulsory school attendance
laws to apply on Indian reservations only with the consent of the tribe. 25
U.S.C. 231. In this instance, the Tribe has its own Truancy Ordinance. Rather
than debate issues of which sovereign's truancy laws governed which children
and where, the Home School Coordinator is charged with enforcing both the
Tribal Truancy Ordinance and the State Compulsory Attendance Law.
The Rosebud Sioux Tribe operates
a Truancy Intervention Program (TIP) and funds it annually with over $100,000
from the Tribe's Tribal Priority Allocation grant under the Indian Self-Determination
and Education Assistance Act of 1975, Pub. L. No. 93-638, 88 Stat. 2203. See
also 25 U.S.C. 2010(c). Under the TIP, two Truancy Intervention Officers
work to increase attendance in both the tribal grant school and the public
schools. The TIP is an award-winning program that has been independently evaluated
as an effective means of reducing tribal student truancy in both tribal and
public schools. See
Harvard University, Honoring
Nation's Program: Finalists
(1999); RJS & Associates, Inc., External
Evaluation Final Report: Rosebud Sioux Tribal Education Department and Tribal
Education Code (1999). A copy of the Rosebud Sioux TIP Budget Request
Proposal for FY 2000 is appended with permission to this Paper.
The Rosebud Sioux Tribe also has
an arrangement with the Todd County School District to co-manage the School
District's Impact Aid funds. The School District's Impact Aid "Indian Policies
and Procedures" put the Tribe's Education Department on a level equal with
the School District regarding the application for, use of, and accountability
for Impact Aid funding. There is no federal law requiring the School District
to do so. The School District amended its Indian Policies and Procedures after
the Tribe enacted its Tribal Education Code in 1991. The Indian Policies and
Procedures recognize the Tribe's Education Code as the basis for the arrangement,
along with the parties' mutual desire "to ensure a cooperative working relationship...."
A copy of the Todd County School District's Indian Policies and Procedures
are appended with permission to this Paper.
The Johnson O'Malley Act of 1934,
48 Stat. 596 (JOM), authorizes the BIA to contract with states and their political
subdivisions for, among other things, Indian education. 25 U.S.C. 452 -457.
Under the Indian Self-Determination and Education Assistance Act of 1975,
Pub. L. No. 93-638, 88 Stat. 2203, many tribes contract the operation of JOM
programs. 25 U.S.C. 450-450n. This in turn leads to JOM contracts between
tribes and public schools. Indeed, JOM contracts probably represent the majority
of Tribal-State Partnerships in Indian education. See
Affiliated Tribes of Northwest Indians and The Northwest Regional Assistance
Center of the Northwest Regional Education Laboratory, Draft Report of Findings
and Criteria for Design of Training and Technical Assistance, Models
for Collaboration: Relationships Between Tribes and School Districts in the
Northwest at 7-11 (Apr. 28, 2000). At present the Navajo Nation has multi-year
JOM contracts with thirty-five public school districts, many of which as a
matter of tribal law require instruction in tribal language as a contract
condition.
Under the Indian Education Act of
1978, Pub. L. No. 95-561, 92 Stat. 2316, as amended, tribes may select or
elect school boards for BIA schools. 25 U.S.C. 2026(10). At least three
BIA schools have agreements with public school districts on school governance.
Two of these BIA schools are located on the Turtle Mountain Band of Chippewa
Indians Reservation in North Dakota. They have agreements to co-govern the
BIA schools and the public schools. See
the Native American Rights Fund, Indian Education Legal Support Project, Cooperative
Agreements in Indian Education 23 -34 (October 1998). Under the Cheyenne-Eagle
Butte School Cooperative School Agreement, a BIA boarding school located on
the Cheyenne River Sioux Reservation in South Dakota and a public school have
established a Combined School Board to address matters of budget and finance,
personnel, curriculum, transportation, and student rights. Id.
at 11-22.
- Other interactions in school governance and curriculum
Montana is the only state in the Union that constitutionally recognizes the
importance of Indian education. "The state recognizes the distinct and unique
cultural heritage of the American Indians and is committed in its educational
goals to the preservation of their cultural integrity." Mont. Const. art.
X, 1(2). Recent legislation - H.B. 528 - helps clarify the intent of this
constitutional language. H.B. No. 528, 56th Leg., Reg. Sess. (Mont. 1999).
Among other things, H.B. 528 requires every educational agency and all educational
personnel to work cooperatively with Montana tribes when providing instruction,
implementing educational goals, and adopting education rules. H.B. No. 528,
Sec. 1(b). The Montana Board of Education has issued a Report and Recommendations
to implement H.B. 528. The Recommendations "encourage tribal-state cooperative
agreements ... that will allow for state and local education leadership and
tribal governments to work together to determine appropriate and culturally
responsive educational goals for citizens of the Montana reservation communities
." A copy of H.B. 528 and the Report and Recommendations are appended to this
Paper.
Several states have provided by
state law for tribes to serve as school boards. See,
e.g., Fla. Stat. ch. 285.18 (2000) (designating Seminole and Miccosukee
Tribes as governing bodies of special improvement districts under state law,
and authorizing them to contract with adjoining school districts for education
services and programs); Minn. Stat. 128B.011 (2000) (vesting the "care,
management, and control of Pine Point [public] school" in the Tribal Council
of the White Earth Reservation, and confirming that the "council has the same
powers and duties as a school board...."). On the Mandan, Hidatsa, and Arikara
Nation's Reservation in North Dakota, three tribal grant schools also receive
funding and operate as public school districts under state law.
As provided in its Education Code,
the Rosebud Sioux Tribe has developed tribal education standards in Lakota
Studies for grades K-12. Standards development occurred through a collaborative
process among the Tribal Education Department, the tribal college, Sinte Gleska
University, and the Todd County School District. In 1997, the School District
finalized and adopted these standards. In 1998, the School District began
integrating the standards into its regular curriculum. See
RJS & Associates, Inc., External
Evaluation Final Report: Rosebud Sioux Tribal Education Department and Tribal
Education Code at 14 (1999).
The Kalispel Tribe in Washington
and the Cusick Public School District have together created a high school
class called "Intro to Indian Studies." It has been so successful as a one
semester elective class that plans are underway to develop it into a K-12
curriculum and to expand it to include a tribal language component. This initiative
is discussed in Affiliated Tribes of Northwest Indians and The Northwest Regional
Assistance Center of the Northwest Regional Education Laboratory, Draft Report
of Findings and Criteria for Design of Training and Technical Assistance,
Models for Collaboration:
Relationships Between Tribes and School Districts in the Northwest at
14 (Apr. 28, 2000), appended with permission to this Paper.
Some tribes such as the Rosebud
Sioux, the Navajo Nation, the Chippewa-Cree Tribe of the Rocky Boy's Reservation
in Montana, and the Confederated Tribes of the Grand Ronde Reservation in
Oregon work with their states, school districts, tribal colleges, and state
universities in areas of teacher training, school accreditation, youth leadership
programs, and parental, family, and community involvement programs.
SUSTAINABILITY: THE FUTURE
The preparers of this Paper have found that the following factors contribute
to successful sustainment of collaborative efforts in Indian education:
- a good communications system among
the parties to the agreement;
- the "buy-in" input and involvement
of constituencies / stakeholders / those affected most by agreement;
- a focus on long term benefits
(such as learning and teaching), not short-term crisis management;
- a well-crafted plan for step-by-step
or gradual implementation upon which trust and success can be built;
- built-in joint reporting, monitoring
/ enforcement, and accountability means / systems (this includes the establishment
of joint boards and the use of joint contact persons, coordinators, resource
persons, etc.);
- conducting joint training and
technical assistance sessions on implementation of agreement;
- continual education of each parties'
political leadership about the agreement;
- putting the agreement in writing
and formal approval / enactment of agreement into law of tribe / state;
- jointly publicizing / making the
collaborative effort available to the public;
- jointly educating and communicating
to the general public about agreement;
- jointly meeting on a regular basis
to review, evaluate, and revise or endorse the agreement for future use.
CONCLUSION
Tribes are increasingly exercising
their sovereignty over education, including over public schools that serve
tribal children. The exercise of tribal sovereignty over schools and education
can improve learning and teaching for tribal students. Cooperative agreements
and intergovernmental collaboration are a valid means of exercising tribal
sovereignty. They do not in and of themselves compromise tribal sovereignty.
"[P]ositive political relationships
between tribes and state[s] ... are important to students' self-image and success
in school." Indian Nations
at Risk at 20; see also
Affiliated Tribes of Northwest Indians and The Northwest Regional Assistance
Center of the Northwest Regional Education Laboratory, Draft Report of Findings
and Criteria for Design of Training and Technical Assistance, Models
for Collaboration: Relationships Between Tribes and School Districts in the
Northwest at 9 (Apr. 28, 2000) ("where there was a hostile relationship
... educational services for Indian students suffer ...."). For Indian education
to continue to improve, more - and more effective - Tribal-State Partnerships
are needed. Finally, those Partnerships that already exist are unfortunately
not always readily available to others by normal research means, and thus we
commend the National Congress of American Indians for this opportunity to share
this information.
APPENDICES
Cooperative Agreements / Collaborative
Efforts in Indian Education
- Cooperative Agreement between
the Cherokee Central School and the Swain County School District
- Rosebud Sioux Tribe Truancy Intervention
Project
- Todd County School District Impact
Aid Indian Policies and Procedures
- Affiliated
Tribes of Northwest Indians and The Northwest Regional Assistance Center
of the Northwest Regional Education Laboratory, Draft Report of Findings
and Criteria for Design of Training and Technical Assistance, Models
for Collaboration: Relationships Between Tribes and School Districts
in the Northwest at 14 (Apr. 28, 2000)
- Native American Rights Fund, Indian Education Law Materials Order Form
-
Applicable laws
- The Rosebud Sioux Tribe Education Code
- The Impact Aid Laws of 1950, as amended by Pub. L. No. 95-561, 92 Stat.
2315, 20 U.S.C. 7704(a)
- Enforcement of State laws affecting health and education, 25 U.S.C.
231
- The Johnson O'Malley Act of 1934, 48 Stat. 596, 25 U.S.C. 452
- The Indian Self-Determination and Education Assistance Act of 1975, as
amended by Pub. L. No. 98-511, 99 Stat. 2366, as amended, 25 U.S.C. 2010(c)
- Colorado Rev. Stat. 22-32-122(1)
- Florida Stat. ch. 285.18(1) & (2)
- 30 Maine Rev. Stat. Ann. 6214
- Minnesota Stat. 128B.011
- Wisconsin Stat. 15.375(1)
- Montana Constitution art. X, sec. 1(2)
- Montana H.B. No. 528 (1999)
Contact List of Preparers of this Paper
Sherry Red Owl, Director
Education Department Rosebud Sioux Tribe
PO Box 430
Rosebud, SD 57570
Tex Hall, Chairman
Bernadine Young Bird, Education Director
Mandan, Hidatsa, and Arikara Nation
HC 1, Box 2
New Town, ND 58763
Freida Havens, Director
Jicarilla Apache Department of Education
Jicarilla Apache Tribe
PO Box 507
Dulce, NM 87528
Teresa Puskarenko, Director
Education Department
Stockbridge-Munsee Community Band of Mohican Indians
W13447 Camp 14 Rd
Bowler, WI 54116
Doyce Cannon, Superintendent
Cherokee Central Schools
PO Box 134, Acquoni Rd
Cherokee, NC 28719
Patsy Martin, Council Member, Yakama Nation
Chair, Education Committee
Affiliated Tribes of Northwest Indians
1827 NE 44th Ave., Ste. 130
Portland, OR 97213
Carol Juneau, Chair
Montana Indian Education Association
PO Box 55
Browning, MT 59417
Carmen Taylor, Program Director
National Indian School Boards Association
PO Box 790
Polson, MT 59860
Gloria Sly, President
John Cheek, Executive Director
National Indian Education Association
700 N. Fairfax St., Ste. 210
Alexandria, VA 22314
www.niea.org
Melody McCoy, Staff Attorney Native American Rights Fund
1506 Broadway
Boulder, CO 80302
www.narf.org
A complete copy of this document is available for $13.00, including
shipping and handling.
Last Updated August 21, 2000
|
|
