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Tribal-State Partnerships: Cooperating to Improve Indian Education
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"Tribal-State Partnerships: Cooperating to Improve Indian Education"

A Paper Prepared for the National Congress of American Indians
Mid-Year Session, June 25-28, 2000
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

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

Last Updated August 21, 2000

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