Native Sun News Today: Johnson-O'Malley program finally in line for an update

Friday, August 23, 2019

Meeting needs of Indian students

JOM Modernization Act faces problems

By James Giago Davies

Native Sun News Today Contributing Editor

RAPID CITY— Although the Johnson-O’Malley Act (JOM) was signed into law in 1934, many people who benefit from the Act are unaware of its particulars or that it even exists. JOM’s modern purpose is to provide funding to meet the educational needs of eligible Indian students, where that need is unique or specialized beyond the capacity of normal school funding, and to help schools maintain established State education standards.

Over the years, outdated eligibility data, and a freezing of JOM funding in 1995, has resulted in a need to revamp the system, to ensure every eligible student is receiving JOM assistance. On December, 31, 2018, the JOM Modernization Act was signed into law by President Trump.

Senator John Hoeven (R-North Dakota), chairman of the Senate Committee on Indian Affairs, stated upon passage of the bill: “This legislation will ensure an accurate and updated count of students participating in the JOM program. A yearly JOM count better enables the BIA to provide needed supplemental education services and assistance to many Indian students across the country.”

The bill was sponsored by senators Heidi Heitkamp (D-North Dakota), Steve Daines (R-Montana), and James Lankford (R-Oklahoma).

Board members of the National Johnson O’Malley Association. Back row, from left: Valerie Bellson, Harold Dusty Bull, Jonas Yazzie, Mark Vance, Carla Mann, unknown, Leanna Russell, Christine Fineday Front row, from left: Marry Knutsen, Petra Wilson, Jackie White, Catherine Ezquivel. Photo courtesy NJOMA

“Studies have shown that culturally relevant learning programs help students perform better in the classroom,” former Senator Heitkamp said at the time. She added that too often these programs are “underfunded or poorly implemented,” and JOM is a textbook example. Heitkamp concludes that the Act “will require that accurate counts of Native American students are performed, so that these under-served students and schools can receive the support they deserve.”

“What’s happening right now is they are doing the tribal consultations, the Bureau of Indian Education (BIE) is setting those up,” said Petra Wilson, the Region 7 representative on the National Johnson O’Malley Association Board (NJOMA), and a member of the Oglala Sioux Tribe.

“To me it’s kind of sad to not see tribes take an interest in attending these consultations," Wilson told Native Sun News Today. "Really, if you look at everything we are doing, it’s about the kids, and it’s about those seven generations. People tend to think in the now and not so much into the future. One of the big conversations right now is student count, child count."

"The child count is a difficult one to really get accurate. So, there’s been different discussion about how that’s going to look. I think the BIE asked for a child count in May, but it’s about the potential number, not necessarily the current number, that are going to be JOM qualified," Wilson said. "Each member is supposed to be reaching out to the tribes in their region and bringing back that collective input. It’s hard because there’s not a lot of clarity on how to do that, how to outreach.”

Posted by NJOMA on Sunday, May 26, 2019

A potential problem for the Modernization Act will be the accuracy of the child count. Wilson: “Coming up with those numbers is just hard, maybe because something is missing in their record keeping maybe they don’t understand how it’s being communicated, I don’t know…but it seems to be a constant conversation, child count. The (consultation) closing is in December and many people are asking for more time. What I see is a lot of people being left out, so I don’t know where (child count) is going to go from there.”

In order for the Modernization Act to have teeth, comprehensive cooperation in compiling accurate data, and input regarding the structuring of programs, is required from every tribe and Indian community. A series of tribal consultations has been slated across 2019, ending in December, but these consultations are effective only on paper, and the reality is tribes must attend and contribute to the process.

Blood quantum also factors prominently, in that students must be at least ¼ Indian blood in order to qualify for funding. In a landmark 1986 case, Zarr v Barlow, Dianne Zarr, certified to have 7/32 Indian blood, was ruled ineligible for higher education funding by the BIA, who imposed a blood quantum cut-off of at least ¼, of which Zarr fell short, by 1/32.

The Ninth Circuit Court ruled in favor of Zarr, stating that the BIA had nothing to base blood level restriction on. The Court determined that Congress decided in 1974 to use tribal membership as the sole criteria for higher education funding.

Consultation on this issue would have to address rationale for why Zarr v Barlow applies to JOM funding despite the 1986 ruling, but if tribes don’t provide input during consultation, JOM is left with little reason to alter blood quantum restriction. JOM funding applies to students Grades Three through 12, with a preference for those living on or near a reservation.

In the Zarr v Barlow ruling, this distinction was addressed, not as it applies to JOM, but the Court determined there was sufficient precedence for the ¼ limit to apply to primary education. In determining eligibility for programs, Tribes and schools are placed in the difficult position of having to pick and choose between one student and another, often in the same family, as to who qualifies by blood quantum, and who does not.

“We talk about self-determination and self-identifying,” Wilson said. “I think nothing is more disheartening than having to tell a kid that they can’t be included in a Native American program, that they feel like they relate to, or should be part of, because they are not enough blood.”