Tony Dearman, a citizen of the Cherokee Nation, serves as director of the Bureau of Indian Education. Photo: Senate Committee on Indian Affairs

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Bureau of Indian Affairs strips blood quantum from proposed Johnson O'Malley rule

Friday, March 23, 2018

Depending how you look at it, the Bureau of Indian Affairs is either catching up with old business or making things more complicated for the popular Johnson O'Malley education program.

In a notice published in the Federal Register on Wednesday, the BIA said it is doing the former. JOM contracts with tribes, Indian organizations, states and school districts cannot base eligibility on a student's blood quantum, the document reads.

That's because a federal court, way back in 1990, determined that eligibility for JOM should be based solely on a student's tribal citizenship, according to the notice, which was signed by John Tahsuda in his role as "Principal Deputy Assistant Secretary—Indian Affairs, Exercising the Authority of the Assistant Secretary—Indian Affairs."

But if Indian educators are wondering why the BIA is proposing a rule to address something that happened in federal court nearly three decades ago, the notice says not to worry. Ever since the ruling, we haven't taken blood quantum into account, it reads.

"With this deletion, the rule codifies both the court ruling and past practice," the document states.

So what's the issue then? The BIA, in the past -- as recently as last summer in fact -- said blood quantum is an eligibility factor for JOM benefits.

"American Indian and Alaska Native students are eligible if they are members of a federally-recognized Indian tribe or one-fourth or more degree of Indian blood and recognized by the Secretary as being eligible for services from the bureau," Tony Dearman, the director of the Bureau of Indian Education, said in Congressional testimony on July 12, 2017.

But lest anyone think Dearman didn't know what he was talking about, another BIA official said the same thing to the same committee a year prior and even threw in some extra language for good measure.

"American Indian and Alaska Native students are eligible if they are members of a federally recognized tribe, or certify that they are at least one-fourth or more degree of Indian blood and descendant of a member of a federally recognized Indian tribe eligible for services from the bureau," Mike Black, who was serving as the director of the BIA at the time of the May 11, 2016, hearing.

To recap: according to top officials at the BIA and the BIA's own website, a student is eligible for JOM if he or she is a citizen of a federally recognized tribe or possesses at least one-fourth degree of Indian blood.

In other words, the BIA hasn't been practicing what the federal court preached back in 1990.

JOM Student Accomplishment. Congratulations, Justin Mack on having your poem published in the 2017 American Library of Poetry!🎉❤️🐻 Justin Mack is a Bearden 8th Grade Student
Posted by Muscogee Creek Nation Johnson O' Malley Program on Tuesday, February 6, 2018

Muscogee Creek Nation Johnson O'Malley Program: JOM Student Accomplishment

To make matters more complicated, because why not, this is Indian stuff, the rule is being proposed at an interesting time. The $1.3 trillion omnibus appropriations bill that averts a shutdown of the federal government requires the BIA to explain why it hasn't updated the student eligibility count for JOM since 1995.

Yes, folks, even though educators and lawmakers have long pointed out that there are more Indian students needing school supplies, taking field trips, learning more about their languages, going to powwows and participating in career fairs today than in 1995, the BIA is still basing JOM contracts on data from 1995.

"In 1995, when the JOM was frozen, the students received approximately $125 per student. Right now, in today’s dollars, we are getting $63," Carla Mann, the president of the National Johnson O’Malley Association, said at last July's hearing. "Effectively, that is around $43 per student. It can be much less for those tribes who count all students regardless of the number they are receiving money for."

According to the BIA's frozen count, 272,000 Indian students are eligible for JOM. Mann's organization, on the other hand, believes the true count is "well over" 1 million.

An updated student could could help justify an increase in funds for the program. The omnibus, which passed the House on Thursday and the Senate early Friday morning, provides $14.9 million for JOM.

"The committees remain concerned that the distribution of funds is not an accurate reflection of the distribution of students," the House and Senate appropriations committees wrote in an accompanying report. "The Bureau is directed to report back to the committees within 90 days of enactment of this act on the status of updating the student counts"

We're making progress, one might say. Once H.R.1625 becomes law, the BIA will have to "report back" or face lots of unfriendly lawmakers on Capitol Hill. Checks and balances at it's finest and a teachable moment for sure.

But don't get too excited, students, educators, parents, guardians and chaperones. In written testimony, Mann noted that Congress asked the BIA to do the same thing "in 2012, 2014, 2016, and again in 2017" yet the song remains the same.

"There can be no more serious task than we have for Indian children than ensuring the quality of their education," Sen. Heidi Heitkamp (D-North Dakota) said last October as the Senate Committee on Indian Affairs advanced S.943, the Johnson-O'Malley Supplemental Indian Education Program Modernization Act.

The bill, which Heitkamp introduced with bipartisan support, requires the BIA to update the count. It coincidentally passed the Senate on Thursday, hours before the omnibus cleared the chamber in an early morning vote on Friday.

While Indian Country awaits action on the bill in the House, the BIA is taking comments on its proposed rule until May 21. No consultations, listening sessions, conference calls, webinars or field trips have been scheduled so responses have to mailed, emailed or hand delivered to Washington, D.C.

Federal Register Notice:
Education Contracts Under Johnson-O'Malley Act (March 21, 2018)