[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
EXAMINING THE BUREAU OF INDIAN EDUCATION'S SCHOOL REOPENING GUIDANCE
DURING THE COVID-19 PANDEMIC
=======================================================================
OVERSIGHT HEARING
BEFORE THE
SUBCOMMITTEE FOR INDIGENOUS PEOPLES OF THE UNITED STATES
OF THE
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
__________
Thursday, September 10, 2020
__________
Serial No. 116-40
__________
Printed for the use of the Committee on Natural Resources
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
or
Committee address: http://naturalresources.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
41-453 PDF WASHINGTON : 2020
--------------------------------------------------------------------------------------
COMMITTEE ON NATURAL RESOURCES
RAUL M. GRIJALVA, AZ, Chair
DEBRA A. HAALAND, NM, Vice Chair
GREGORIO KILILI CAMACHO SABLAN, CNMI, Vice Chair, Insular Affairs
ROB BISHOP, UT, Ranking Republican Member
Grace F. Napolitano, CA Don Young, AK
Jim Costa, CA Louie Gohmert, TX
Gregorio Kilili Camacho Sablan, Doug Lamborn, CO
CNMI Robert J. Wittman, VA
Jared Huffman, CA Tom McClintock, CA
Alan S. Lowenthal, CA Paul A. Gosar, AZ
Ruben Gallego, AZ Paul Cook, CA
TJ Cox, CA Bruce Westerman, AR
Joe Neguse, CO Garret Graves, LA
Mike Levin, CA Jody B. Hice, GA
Debra A. Haaland, NM Aumua Amata Coleman Radewagen, AS
Joe Cunningham, SC Daniel Webster, FL
Nydia M. Velazquez, NY Liz Cheney, WY
Diana DeGette, CO Mike Johnson, LA
Wm. Lacy Clay, MO Jenniffer Gonzalez-Colon, PR
Debbie Dingell, MI John R. Curtis, UT
Anthony G. Brown, MD Kevin Hern, OK
A. Donald McEachin, VA Russ Fulcher, ID
Darren Soto, FL Pete Stauber, MN
Ed Case, HI
Steven Horsford, NV
Michael F. Q. San Nicolas, GU
Matt Cartwright, PA
Paul Tonko, NY
Jesus G. ``Chuy'' Garcia, IL
Vacancy
David Watkins, Chief of Staff
Sarah Lim, Chief Counsel
Parish Braden, Republican Staff Director
http://naturalresources.house.gov
------
SUBCOMMITTEE FOR INDIGENOUS PEOPLES OF THE UNITED STATES
RUBEN GALLEGO, AZ, Chair
PAUL COOK, CA, Ranking Republican Member
Darren Soto, FL Don Young, AK
Michael F. Q. San Nicolas, GU Aumua Amata Coleman Radewagen, AS
Debra A. Haaland, NM John R. Curtis, UT
Ed Case, HI Kevin Hern, OK
Matt Cartwright, PA Pete Stauber, MN
Jesus G. ``Chuy'' Garcia, IL Rob Bishop, UT, ex officio
Vacancy
Raul M. Grijalva, AZ, ex officio
------
CONTENTS
----------
Page
Hearing held on Thursday, September 10, 2020..................... 1
Statement of Members:
Gallego, Hon. Ruben, a Representative in Congress from the
State of Arizona........................................... 1
Prepared statement of.................................... 3
Stauber, Hon. Pete, a Representative in Congress from the
State of Minnesota......................................... 4
Prepared statement of.................................... 6
Statement of Witnesses:
Garcia, Hon. Joe, Co-Chair, Tribal Interior Budget Council,
Education Subcommittee, National Congress of American
Indians, Washington, DC.................................... 8
Prepared statement of.................................... 9
Questions submitted for the record....................... 12
Parton, Sue, President, Federation of Indian Service
Employees, Albuquerque, New Mexico......................... 17
Prepared statement of.................................... 19
Questions submitted for the record....................... 21
Witte, Lance, Superintendent and Principal, Lower Brule
Schools, Lower Brule, South Dakota......................... 14
Prepared statement of.................................... 15
Questions submitted for the record....................... 17
Yanan, Therese, Executive Director and Attorney, Native
American Disability Law Center, Farmington, New Mexico..... 22
Prepared statement of.................................... 24
Questions submitted for the record....................... 29
Additional Materials Submitted for the Record:
Bureau of Indian Education, U.S. Department of the Interior,
Statement for the Record................................... 47
Bureau of Indian Education, U.S. Department of the Interior,
Return to Learn! Plan...................................... 47
Submissions for the Record by Representative Stauber
Navajo Nation, July 28, 2020 Letter to Speaker Pelosi and
Rep. McCarthy on S. 886................................ 33
The Mille Lacs Band of Ojibwe Indians, Statement for the
Record................................................. 48
OVERSIGHT HEARING ON EXAMINING THE BUREAU OF INDIAN EDUCATION'S SCHOOL
REOPENING GUIDANCE DURING THE COVID-19 PANDEMIC
----------
Thursday, September 10, 2020
U.S. House of Representatives
Subcommittee for Indigenous Peoples of the United States
Committee on Natural Resources
Washington, DC
----------
The Subcommittee met, pursuant to notice, at 3:06 p.m., via
Webex, Hon. Ruben Gallego [Chairman of the Subcommittee]
presiding.
Present: Representatives Gallego, Soto, Haaland, Case,
Cartwright, Grijalva; and Stauber.
Mr. Gallego. The Subcommittee for Indigenous Peoples of the
United States will now come to order.
The Subcommittee is meeting today to hear testimony on the
Bureau of Indian Education's COVID-19 School Re-opening
Guidelines.
Under Committee Rule 4(f), any oral opening statements at
hearings are limited to the Chair and the Ranking Minority
Member. This will allow us to hear from our witnesses sooner
and help Members keep to their schedules.
Therefore, I ask unanimous consent that all other Members'
opening statements be made part of the hearing record if they
are submitted to the Clerk by 5 p.m. today or the close of the
hearing, whichever comes first.
Hearing no objections, so ordered.
Without objection, the Chair may also declare a recess
subject to call of the Chair.
Hearing no objection, so ordered.
As described in the hearing notice, statements, documents
or motions must be submitted to the electronic repository at
[email protected]. Additionally, please note that, as
with in-person meetings, Members are responsible for their own
microphones and Members can be muted by staff only to avoid
inadvertent background noise. Finally, Members or witnesses
experiencing technical problems should inform Committee staff
immediately.
Thank you.
STATEMENT OF THE HON. RUBEN GALLEGO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Mr. Gallego. Good afternoon and welcome to everyone
watching our livestream. I want to thank our witnesses for
making the time to testify before us remotely.
Today, we will be examining the Bureau of Indian
Education's School Re-opening Plan and the steps, or missteps,
BIE has taken in ensuring the safety of Native American
students, teachers, and employees.
Though I am grateful for the witnesses we have here today,
I would like to voice my disappointment in the Bureau of Indian
Education for choosing not to testify today. BIE has refused to
testify because we are holding this hearing in a virtual
setting.
While this Committee has often struggled with this
Administration's frequent refusal to provide timely and
informed testimony, the BIE's refusal to be here today is a new
low.
This fall, the health of Native children is on the line
when they return to school. The health of teachers and staff is
on the line. The health of their families and their communities
is on the line.
If we do not get BIE schools re-opened correctly, Native
Americans will die as a result. We know this because multiple
BIE employees died this spring when some BIE schools took too
long to close. We cannot let that happen again.
It is a dereliction of the Federal trust responsibility for
the BIE to refuse to be here to discuss how to protect Native
students just because the hearing is not happening in person.
This hearing is happening remotely because we understand
the stakes of the public health crisis we are in. From their
refusal, it is clear that BIE does not understand those stakes,
which is why I am extremely concerned about their ability to
oversee safe re-openings at BIE-run schools this fall.
Finally, I want it to be on the record that this Committee
stands ready to hear BIE's testimony on school re-openings when
the agency determines that Native lives are important enough to
necessitate it.
Now, let's move on to the situation before us. BIE
currently funds 183 elementary and secondary schools located on
64 reservations in 23 states, serving over 40,000 students.
Fifty-five of those schools are operated by the BIE.
At the beginning of the pandemic, BIE schools shut down
along with public schools across the country. Like other
schools, BIE attempted to transition to a distance learning
model; unlike other schools, BIE schools have had to contend
with digital divide in Indian Country.
People on tribal lands are four times more likely to not
have the internet, and are also more likely to lack access to
laptops or, unfortunately, even electricity.
To make matters worse, BIE was not able to quickly mobilize
to provide instruction, resources, or IT services to aid the
transition to virtual learning in the spring. While these
hiccups may have been understandable in March, it is disturbing
that we are seeing those same problems arise in September, when
BIE has had months to prepare.
In March, Congress provided funding for BIE schools through
the CARES Act Education Stabilization Fund. However, it took
BIE 97 days, over 3 months, to distribute this money, which
undermined schools' ability to prepare teachers, students, and
employees for the fall.
In addition to funding delays, BIE spent the summer sending
mixed and concerning messages regarding school re-opening
plans. In July, BIE held two tribal consultation sessions and
assured the tribal leaders, tribal organizations, and school
boards involved that their input would inform the re-opening
plan.
However, in August, the BIE released a plan proclaiming
that on September 16, BIE-operated schools would open in-person
to the maximum extent possible. The BIE guidance does not
provide for the consultation and explicit consent of local
tribes, parents, and teachers before re-opening a school.
The BIE guidance, though it is only binding for BIE-
operated schools, directs any tribally operated school that
deviates from the guidance to ``consult with its legal counsel
to ensure it does not risk violating the terms of its grant''--
a potential threat to tribal sovereignty.
Finally, the BIE guidance released on August 24 gave
schools less than 1 month to implement this top-down approach,
leaving school leaders with more questions than answers.
We all know that effectively and safely educating our
children in a pandemic is a huge challenge. But we will never
be able to overcome the challenges in Indian Country without
committing to a thoughtful, nuanced approach that emphasizes
consultation and partnership with local tribes and school
leadership.
That is why I am disappointed that BIE is not here to
engage in this discussion today, and that is why I look forward
to hearing what our witnesses have to say.
[The prepared statement of Mr. Gallego follows:]
Prepared Statement of the Hon. Ruben Gallego, Chair, Subcommittee for
Indigenous Peoples of the United States
Good afternoon and welcome to everyone watching on our livestream.
I want to thank our witnesses for making the time to testify before us
remotely.
Today, we will be examining the Bureau of Indian Education's school
re-opening plan and the steps--or missteps--BIE has taken in ensuring
the safety of Native American students, teachers and employees.
Though I am grateful for the witnesses we have here today, I would
like to voice my disappointment in the Bureau of Indian Education for
choosing not to testify today. BIE has refused to testify because we
are holding this hearing in a virtual setting.
While this Committee has often struggled with this Administration's
frequent refusal to provide timely and informed testimony, the BIE's
refusal to be here today is a new low.
This fall, the health of Native children is on the line when they
return to school. The health of teachers and staff is on the line. The
health of their families and their communities is on the line.
If we do not get BIE school re-openings right, Native Americans
will die as a result. We know this because multiple BIE employees died
this spring when some BIE schools took too long to close. We cannot let
that happen again.
It is a dereliction of the Federal trust responsibility for BIE to
refuse to be here to discuss how to protect Native students just
because the hearing isn't happening in person.
This hearing is happening remotely because we understand the stakes
of the public health crisis we are in. From their refusal, it's clear
that the BIE does not understand those stakes, which is why I am
extremely concerned about their ability to oversee safe re-openings at
BIE-run schools this fall.
Finally, I want it to be on the record that this Committee stands
ready to hear BIE's testimony on school re-openings when the agency
determines that Native lives are important enough to necessitate it.
Now, let's move on to the situation before us. BIE currently funds
183 elementary and secondary schools, located on 64 reservations in 23
states, serving over 40,000 students; 55 of these schools are operated
by the BIE.
At the beginning of the pandemic, BIE schools shut down along with
public schools across the country. Like other schools, BIE attempted to
transition to a distance learning model. Unlike other schools, BIE
schools had to contend with the digital divide in Indian Country.
People on tribal land are four times more likely to not have
internet, and are also more likely to lack access to a laptop or even
electricity.
To make matters worse, BIE was not able to quickly mobilize to
provide instruction, resources, or IT services to aid the transition to
virtual learning in the spring.
While these hiccups may have been understandable in March, it is
disturbing that we are seeing the same problems arise in September,
when BIE has had months to prepare.
In March, Congress provided funding for BIE schools through the
CARES Act Education Stabilization Fund. However, it took BIE 97 days--
over 3 months--to distribute this money, which undermined schools'
ability to prepare teachers, students and employees for the fall.
In addition to funding delays, BIE spent the summer sending mixed
and concerning messages regarding school re-opening plans. In July, BIE
held two tribal consultation sessions and assured the tribal leaders,
tribal organizations, and school boards involved that their input would
inform the re-opening plan.
However, in August, the BIE released a plan proclaiming that on
September 16, BIE-operated schools would open in-person ``to the
maximum extent possible.'' The BIE guidance does not provide for the
consultation and explicit consent of local tribes, parents and teachers
before re-opening a school.
The BIE guidance, though it is only binding for BIE-operated
schools, directs any tribally-operated school that deviates from the
guidance to ``consult with its legal counsel to ensure it does not risk
violating the terms of its grant''--a potential threat to tribal
sovereignty.
Finally, the BIE guidance, released on August 24, gave schools less
than 1 month to implement this top-down approach, leaving school
leaders with more questions than answers.
We all know that effectively and safely educating our children in a
pandemic is a huge challenge. But we will never be able to overcome
that challenge in Indian Country without committing to a thoughtful,
nuanced approach that emphasizes consultation and partnership with
local tribes and school leadership.
That is why I am so disappointed that the BIE is not here to engage
in this discussion today. And that is why I look forward to hearing
what our witnesses have to say.
______
Mr. Gallego. Before I end my remarks, I want to welcome Mr.
Stauber as a new member of the House Natural Resources
Committee and this Subcommittee. He is serving as Ranking
Member today, and I would like to recognize him for any opening
remarks he may have.
STATEMENT OF THE HON. PETE STAUBER, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MINNESOTA
Mr. Stauber. Thank you very much, Mr. Chairman. Today marks
my first appearance as a member of the House Natural Resources
Committee.
My district is home to 3.5 million acres of Federal lands,
the headwaters of the mighty Mississippi River, five sovereign
Native American bands, and the Duluth Complex.
I have sought an appointment to this Committee since I
started in Congress, and I have been fortunate enough to
participate in an unofficial capacity several times.
Thank you very much to Chairman Grijalva and Ranking Member
Bishop for welcoming me. I am excited to roll up my sleeves and
get to work on Committee business.
Now, it is an honor and privilege to stand in for Ranking
Member Cook and serve alongside Chairman Gallego today to
discuss an issue pressing and pertinent to northern Minnesota
and throughout the country.
First, I want to thank the Chairman for his interest in
Indian education, but would encourage collaboration with the
Committee that has jurisdiction over the Bureau of Indian
Education, the Education and Labor Committee.
While this Committee has very limited jurisdiction over
Indian education, there are legislative proposals this
Committee has and can take action on.
I was proud to support the Great American Outdoors Act,
which was signed by President Trump earlier this year. The Act
included a 5 percent annual carve out for Bureau of Indian
Education schools. When updating infrastructure with this
funding, these schools can further develop infrastructure to
provide better education and combat the virus.
Joining Chairman Bishop and the Committee's Minority, I
wish to express disappointment in the Committee Majority for
refusing to act on S. 886, the Indian Water Rights Settlement
Extension Act. This bill would help tribes in one of the
hardest-hit COVID-19 regions. As the CDC has advised, one of
the best ways to combat COVID is hand washing.
Unfortunately, the Democrat Majority seems content in
letting the settlement agreement collect dust, and many Navajo
households struggle to get access to a reliable water supply.
It has been 90 days since the Senate sent over a
legislation package containing this agreement and other bills
aimed at the Native American communities and schoolteachers.
This legislation is currently being held at the desk, and it
appears that the Majority has no interest in passing this
critical agreement.
I want to submit for the record a letter from President Nez
asking Speaker Pelosi to schedule a vote on final passage of
this bill.
That being said, and turning back to the issue of BIE
schools in my district, we have three tribal schools operated
by the Leech Lake Band, the Fond du Lac Band, and the Mille
Lacs Band. These schools [inaudible].
Mr. Gallego. Let's give Mr. Stauber a few minutes so that
way his internet catches up.
Mr. Stauber. [Inaudible.]
Mr. Gallego. Mr. Stauber, you are coming in and out.
Mr. Stauber. I am confident everyone participating today
can agree that the priority is to simply get children back in
school, especially the American Academy of Pediatrics, the
leading organization on children's health.
Therefore, thank you to the Bureau of Indian Education for
providing detailed guidance to help students return. It is well
documented that [inaudible] of students [inaudible] in school.
For example, evidence from the McKinsey Foundation shows that
kids remaining at home will make existing achievement gaps
worse.
Furthermore, [inaudible] student anxiety and depression
have skyrocketed during closures.
With these effects in mind, we need to find ways to get
students safely back into schools. I am encouraged by the
Bureau's guidance, relying on the CDC's leadership, by
instituting social distancing, adding protective barriers,
requiring face coverings, and added [inaudible].
Most importantly, we must remember these Native schools
serve sovereign nations in largely rural areas. Therefore, they
require flexibility and local decision making. The Bureau's
guidelines do just that by offering expert opinions to match
the needs of individual communities.
Mr. Chairman, I am a father of four and a youth advocate. I
want [inaudible] education possible and our sovereign
[inaudible].
Let's provide our Native children with the education they
need and deserve by following the guidelines of the Bureau and
getting them safely back into their schools.
I yield back.
[The prepared statement of Mr. Stauber follows:]
Prepared Statement of the Hon. Pete Stauber, a Representative in
Congress from the State of Minnesota
Thank you, Mr. Chairman. Today marks my first appearance as a
member of the House Natural Resources Committee. My district is home to
3.5 million acres of Federal public lands, the headwaters of the Mighty
Mississippi River, five sovereign Native American bands, and the Duluth
Complex. I have sought an appointment to this Committee since I started
in Congress, and I have been fortunate enough to participate in an
unofficial capacity several times.
Thank you very much to Chairman Grijalva and Ranking Member Bishop
for welcoming me. I am excited to roll up my sleeves and get to work on
Committee business.
Now, it is an honor and privilege to stand in for Ranking Member
Cook and serve alongside Chairman Gallego today to discuss an issue
pressing and pertinent to northern Minnesota and throughout the
country.
First, I want to thank the Chairman for his interest in Indian
Education, but would encourage collaboration with the committee that
has jurisdiction over the Bureau of Indian Education, the Education and
Labor Committee.
While this Committee has very limited jurisdiction over Indian
education, there are legislative proposals this Committee has or can
take action on. I was proud to support the Great American Outdoors Act
which was signed by President Trump earlier this year. The Act included
a 5 percent annual carve out for Bureau of Indian Education Schools;
when updating infrastructure with this funding, these schools can
further develop infrastructure to provide better education and combat
the virus.
Joining Chairman Bishop and the Committee's Minority, I wish to
express disappointment in the Committee Majority for refusing to act on
S. 886, the Indian Water Rights Settlement Extension Act. This bill
would help tribes in one of the hardest hit COVID-19 regions. As the
CDC has advised, one of the best ways to combat COVID is hand washing.
Unfortunately, the Democrat Majority seems content in letting this
settlement agreement collect dust as many Navajo households struggle to
access a reliable water supply. It has been 90 days since the Senate
sent over a legislative package containing this agreement, and other
bills aimed at the Native American communities and schoolteachers. This
legislation is currently being held at the desk and it appears the
Majority has no interest in passing this critical agreement. I want to
submit for the record a letter from President Nez asking Speaker Pelosi
to schedule a vote on final passage for this bill.
That being said and turning back to the issue of BIE schools, in my
district, we have three tribal schools, operated by the Leech Lake
Band, the Fond du Lac Band, and the Mille Lacs Band. These schools
provide a world-class education while preserving the traditions of the
respective Ojibwe bands.
I would like to take a moment and thank the Mille Lacs Band for
providing my office with background on what the Nay Ah Shing School has
been doing. They plan to open with a Hybrid Learning and Distance
Learning Options, following the guidelines of the Bureau.
The BIE payments from the CARES Act to the Mille Lacs Band will be
used to implement infrastructure updates such as barriers to ensure a
touch-free environment and for transportation options to implement
social distancing for bussing.
Another point to be made on behalf of the Mille Lacs Band is the
need for mental health counseling in the school. It is impossible for
the mental health staff to reach the students that need to be reached
when schools are closed.
I am confident everyone participating today can agree that the
priority is to safely get children back into the classroom, as that is
the position of the American Academy of Pediatrics, the leading
organization on children's health. Therefore, thank you to the Bureau
of Indian Education for providing detailed guidance to help students
return.
It is well documented that learning, health, safety, and nutrition
of students are at their best when students are in school.
For example, evidence from the McKinsey Foundation shows that kids
remaining at home will make existing achievement gaps worse.
Furthermore, EdSource highlighted in a recent article that student
anxiety and depression have skyrocketed during closures.
With these effects in mind, we need to find ways to get students
safely back into schools. I am encouraged by the Bureau's guidance
drawing on the CDC's leadership by instituting social distancing,
adding protective barriers, requiring face coverings, and added
emphasis on hand washing and sanitizing.
Most importantly, we must remember these Native schools serve
sovereign nations in largely rural areas. Therefore, they require
flexibility and local decision making. The Bureau's guidelines do just
that, by offering expert opinion to match the needs of individual
communities.
Mr. Chairman, I am a father of four and an education advocate. I
want my children to get the best education possible, and our sovereign,
Native brothers and sisters deserve the same.
Let's provide our Native children the education they need and
deserve by following the guidance from the Bureau and getting them
safely back into their schools.
______
Mr. Gallego. Thank you, Representative Stauber.
You did break up for a portion there, say, two-thirds of
the way in. If you get a better connection and you want to read
that into the statement at some point, or just in the process
of questioning, obviously we will give you extra time.
I believe at some point you wanted to submit something for
the record. I did not fully get that. I thought you had a
letter from a tribal leader or something like that. If you
could just repeat that, then I could put it into the record.
And, obviously, when we go through the question period if
you want to add anything that was missed during your opening
statement, we will give that opportunity.
Now, I would like to transition to our panel of witnesses
for today.
Under our Committee Rules, oral statements are limited to 5
minutes, but you may submit a longer statement for the record
if you choose.
When you begin, the on-screen timer will begin counting
down and will turn orange when you have 1 minute remaining.
I recommend that Members use the grid view function so they
may pin this timer on their screen. When you go over the
allotted time, I will ask you to please wrap up your statement.
After your testimony is complete, please remember to mute
yourself to avoid any inadvertent background noise.
I will allow the entire panel to testify before we question
the witnesses.
The Chair will now recognize the Honorable Joe Garcia, who
is the co-chair for the National Congress of American Indians
and Interior's Tribal Budget Formulation Education
Subcommittee.
STATEMENT OF THE HON. JOE GARCIA, CO-CHAIR, TRIBAL INTERIOR
BUDGET COUNCIL, EDUCATION SUBCOMMITTEE, NATIONAL CONGRESS OF
AMERICAN INDIANS
Mr. Garcia. Good afternoon. Mr. Chairman, can you hear me?
Mr. Gallego. I can, sir. Please continue.
Mr. Garcia. Chairman Gallego, Ranking Member Cook, and
members of the Subcommittee, and I also see Chairman Grijalva
present. It is good to see all of you.
My name is Joe Garcia, and I am Head Councilman and former
three-term governor of Ohkay Owingeh, a federally recognized
tribal nation in New Mexico.
I am also a former two-term president of the National
Congress of American Indians, or NCAI. NCAI, founded in 1944,
is the oldest and largest representative organization of tribal
nations and communities.
This hearing could not come at a more critical time.
September is the time that schools re-open for the new academic
year. This year that task is complicated by the COVID-19
pandemic, which continues to plague Indian Country, and the
nation and the world as a whole.
But even if that were not the case, there is a long-
standing crisis in Indian education that merits this
Subcommittee's attention and scrutiny. I have addressed this in
my prepared testimony and will be glad to take your questions.
My oral testimony focuses on the re-opening of the Bureau
of Indian Education schools, the BIE schools.
The BIE funds 183 schools located on 63 reservations in 23
states. Of these 183 schools, 132 are tribally controlled
schools operated pursuant to a grant under the Tribally
Controlled Schools Act of 1988 or pursuant to a contract under
the Indian Self-Determination and Education Assistance Act. The
remaining 55 schools are Bureau operated, which gives the BIE
central office more authority over how these schools operate.
Today, the most critical issue before this Subcommittee is
the question of whether these 55 Bureau-operated schools should
re-open for in-person instruction. NCAI's position is that
schools should re-open for in-person instruction only where
BIE, the tribal government that the school serves, the parents,
and the teachers all concur that it is safe to do so.
These decisions must be made at the local level, free of
over-reach from the BIE central office and free in every
respect from political interference. By this, I mean to say
that the White House has no business influencing the BIE on
whether it is safe to re-open a school.
On August 6, the U.S. Department of the Interior's Office
of Indian Affairs announced that it would re-open brick and
mortar schools under its jurisdiction to the maximum extent
possible. It was widely believed that the Interior Department
took this action out of a desire to please the President, if
not in response to direct pressure from the White House.
This announcement was not well received in Indian Country.
The ``Dear Tribal Leader'' letter included another sentence
that reads, ``Local decisions will be made in coordination with
tribes, states, and local public health officials.'' This is
closer to what NCAI wants things to be.
But, unfortunately, we are not seeing this coordination
happen to the extent that we believe is needed.
On August 22, the BIE issued its final re-opening plan
titled, ``Return to Learn.'' While this guidance provides more
information than that of previous documents issued by the
Bureau, it does not ensure that the decision of tribal
governments will be respected when it comes to the re-opening
of K-12 and the safety of the students.
Once again, the Interior Department said that schools will
operate in-person on a regular full-time schedule to the
maximum extent possible, in effect doubling down on the very
position that drew strong criticism from Indian Country in
early August.
We are now a week away from school opening, and the
question before us is whether BIE will respect the local
judgments of tribal nations, sovereign nations, and parents on
whether the school opens in person or virtually.
The BIE should be here today to answer the questions for
all of us, but unfortunately, the Bureau declined the
Subcommittee's invitation to testify.
Additionally, there is no evidence that the Interior
Department or BIE officials have deferred to the position that
tribal leaders have expressed to them. For example, on August
24----
Mr. Gallego. Mr. Garcia, start wrapping up please.
Mr. Garcia. Yes. We urge the Subcommittee to demand that
the Department of the Interior commit to abide by the wishes of
the tribal government when it comes to re-opening schools.
The most important piece of it is that the safety and well-
being of our children, of the faculty, and the staff be adhered
to. That is the No. 1 reason why education systems exist in
this country.
I thank the Committee for holding this hearing, and I look
forward to your questions and working with you to address these
issues.
Thank you.
[The prepared statement of Mr. Garcia follows:]
Prepared Statement of Head Councilman Joe Garcia, National Congress of
American Indians
Chairman Gallego, Ranking Member Cook, and members of the
Subcommittee, My name is Joe Garcia, and I am Head Councilman and
former three-term Governor of Ohkay Owingeh, a federally recognized
tribal nation in New Mexico. I am also Co-Chair to the Department of
the Interior's Tribal Budget Formulation Education Subcommittee, and a
former two-term President of the National Congress of American Indians
(NCAI). NCAI, founded in 1944, is the oldest and largest representative
organization of tribal nations and communities.
This hearing could not come at a more critical time. September is
the time that schools reopen for the new academic year. This year that
task is complicated by the COVID-19 pandemic, which continues to plague
Indian Country and the Nation as a whole. But even if that were not the
case, the month of September is the best time to discuss the state of
Indian education. The Bureau of Indian Education (BIE) has historically
faced difficulties in providing quality, robust education to our
American Indian and Alaska Native (AI/AN) students due to the
underfunding of our programs, inadequate facilities, limited access to
broadband, difficulty recruiting and retaining teachers, and a lack of
culturally appropriate educational opportunities--all of which have
been exacerbated by the COVID-19 pandemic.
the reopening of bureau of indian education schools
The BIE funds 183 schools located on 63 reservations in 23 states.
Of these 183 schools, 132 are tribally controlled schools operated
pursuant to a grant under the Tribally Controlled Schools Act of 1988
(25 U.S.C. Sec. 2501, et seq.) or pursuant to a contract under the
Indian Self-Determination and Education Assistance Act (25 U.S.C.
Sec. 5301, et seq.). The remaining 55 schools are Bureau-operated,
which gives the BIE Central Office more authority over how these
schools operate. Today, the most critical issue before this
Subcommittee is the question of whether these 55 Bureau-operated
schools should reopen for in-person instruction. NCAI's position is
that schools should reopen for in-person instruction only where BIE,
the tribal government(s) that the schools service, the parents, and the
teachers all concur that it is safe to do so. These decisions must be
made at the local level, free of over-reach from the BIE central
office, and free in every respect from political interference. By this,
I mean to say that the White House has no business influencing the BIE
on whether it is safe to open a school.
On August 10, NBC News reported that the U.S. Department of the
Interior's Office of Indian Affairs announced that it would reopen
``brick and mortar schools'' under its jurisdiction to the ``maximum
extent possible'' on September 16.\1\ It was widely believed that the
Interior Department took this action out of a desire to please the
President, if not in response to direct pressure from the White House.
This announcement was not well received in Indian Country. Furthermore,
we are aware that the news report led parents to seriously consider
pulling their children out of BIE schools this academic year.
---------------------------------------------------------------------------
\1\ NBC News, ``Federal agency to reopen 53 Native American schools
despite coronavirus fears,'' Miranda Green, August 10, 2020, https://
www.nbcnews.com/news/us-news/federal-agency-reopen-53-native-american-
schools-despite-coronavirus-fears-n1236253.
---------------------------------------------------------------------------
The document on which the NBC News story was based is a Dear Tribal
Leader Letter signed by Assistant Secretary Tara Sweeney on August 6.
The Dear Tribal Leader Letter included another sentence that was not
mentioned by NBC News. That sentence reads, ``Local decisions will be
made in coordination with tribes, states, and local public health
officials.'' This is closer to where NCAI wants things to be.
A month has passed since the NBC News story, and we are a week away
from school opening. The question before us now is whether BIE will
respect the local judgments of tribal nations and parents on whether
school opens in person or virtually. The BIE should be here today to
answer the question for all of us. But unfortunately, the Bureau
declined the Subcommittee's invitation to testify.
On August 21, the BIE issued its final reopening plan titled
``Return to Learn.'' While this guidance provides more information that
previous documents issued by the Bureau, it does not ensure that the
decisions of tribal governments will be respected when it comes to the
reopening of K--12 schools. Once again, the Interior Department states
that schools will operate in-person on a regular full-time schedule to
the maximum extent possible. In effect, they are doubling down on the
very position that drew strong criticism from Indian Country in early
August.
Adding to the confusion, there is no evidence that the Interior
Department or BIE officials have deferred to positions that tribal
leaders have expressed to them. There are more BIE-controlled schools
on the Navajo Nation than any other tribal nation in the country. On
August 24, 2020, Navajo Nation President Jonathan Nez sent a letter
stating that every BIE-operated school located within the Navajo Nation
must remain closed for face-to-face and in-classroom instruction for
the entirety of the Fall 2020 semester, after which point the issue
will be reviewed again. As of September 8, 2020, the Department of the
Interior still has not acceded to this request. We are uncertain how
the Department has handled similar communications that other tribes
have submitted.
We urge the Subcommittee to demand that the Department of the
Interior commit to abide by the wishes of tribal governments when it
comes to reopening schools. The BIE must also provide a straightforward
process for tribal leaders to request that the Bureau provide online or
distance learning until a tribal community deems it safe to reopen.
Finally, there may be situations where a tribal government is willing
to reopen schools on its reservation for in-person instruction if it is
convinced it is safe to do so. The Interior Department needs to provide
straightforward assurances that BIE schools will be able to fulfill
this promise. Furthermore, if an outbreak should arise, they should be
prepared to close the school and swiftly move to a remote learning
environment.
Other areas of concern regarding the BIE's ``Return to Learn'' plan
include how the Agency will guarantee students that are required to
receive special education services do so. This is troublesome to tribal
leaders considering the Government Accountability Office published a
report this year finding that BIE schools did not provide or did not
account for 38 percent of special education and related service time
for students with disabilities during a regular school year.
Tribal leaders have also voiced their concerns during the
Department of Interior's Tribal Interior Budget Council meeting, held
on August 10-14, 2020, that because of the BIE's inadequate
communications to tribal families, many families are withdrawing their
students from the BIE system for this academic year. Therefore, tribal
leaders have requested that the Bureau freeze Average Daily Membership
(ADM) levels for the 2020-2021 school year to 2019-2020 levels. These
ADMs have a critical role in the appropriations each school receives
every year, and tribal leaders are concerned that the withdrawal of
students for this academic year will negatively impact their Federal
funding for years to come.
the state of indian education
Even if the pandemic had not occurred, we would be here today to
describe the state of Indian education as troubling. The COVID-19
pandemic has only exacerbated long-standing educational disparities
that directly result from the Federal Government's chronic underfunding
of its trust and treaty responsibilities. There are approximately
620,000 AI/AN students enrolled in public schools, both in urban and
rural areas, while 48,000 attend BIE schools. There are 183 BIE-funded
schools located on 63 reservations in 23 states. The most recent data
shows the high school graduation rate for BIE students is at 67 percent
compared to the national average of 85 percent for the rest of the
country.\2\,\3\
---------------------------------------------------------------------------
\2\ U.S. Department of the Interior, Budget Justification and
Performance Information, FY 2021 Bureau of Indian Education, https://
www.doi.gov/sites/doi.gov/files/uploads/fy2021-budget-justification-
bie.pdf.
\3\ U.S. Department of Education, National Center for Education
Statistics. (2020). The Condition of Education 2020 (NCES 2020-144),
https://nces.ed.gov/fastfacts/display.asp?id=805.
Prior to the pandemic, the Federal Government recognized that AI/AN
students were being educated in inadequate facilities. For example, the
Department of the Interior identified $629 million in deferred
maintenance for BIE-funded education facilities and $86 million in
deferred maintenance for BIE educational quarters, including severely
overcrowded classrooms.\4\ In addition to the crumbling physical
infrastructure, tribal communities disproportionately lack the
infrastructure to engage in culturally rich remote education.
---------------------------------------------------------------------------
\4\ Statement of Jason Freihage, Deputy Assistant Secretary For
Management Office of the Assistant Secretary for Indian Affairs
Department of the Interior before the Subcommittee on Interior,
Environment, and Related Agencies, House Committee on Appropriations on
Education Facilities and Construction (July 24, 2019), https://
www.congress.gov/116/meeting/house/109835/witnesses/HHRG-116-AP06-
Wstate-FreihageJ-20190724.pdf.
In addition to these infrastructure disparities that result in less
than ideal learning conditions, the BIE has historically had
difficulties with recruiting and retaining highly effective teachers.
Inadequate housing, the inability for tribally controlled schools to
provide their staff Federal Employee Health Benefits, and low salary
make it difficult for quality teachers to consider careers in the BIE
system.
funding during the pandemic
Initially, tribal and educational leaders were hopeful after the
CARES Act was enacted because $153.75 million was allocated under the
Department of Education's Education Stabilization Fund to programs
operated or funded by the BIE. In addition to these funds, $69 million
was appropriated directly to the BIE to ``prevent, prepare for, and
respond to coronavirus.'' On March 31, 2020, NCAI and the National
Indian Education Association sent an intertribal organizational letter
to both the Departments of Education and Interior requesting that funds
allocated under the CARES Act be disbursed quickly and with maximum
flexibility to BIE-funded schools. Despite this request, it was not
until April 28 and 30 that the Department of Education held formal
tribal listening sessions regarding the disbursement of the $153.75
million in funding. Finally, on June 9, the BIE began distributing
their directly appropriated $69 million to BIE schools, and on July 2,
the Agency began distributing the $153.75 million from the Department
of Education.\5\ This 97-day delay in releasing funds impaired access
to distance learning, prevented schools from preparing for summer
programming, and delayed assessment of technology needs as described in
NCAI's testimony before the U.S. Commission on Civil Rights Hearing on
COVID-19 in Indian Country.\6\
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\5\ U.S. Department of Interior, BIE Listening Session, (July 2,
2020), https://www.bia.gov/sites/bia.gov/files/assets/asia/opa/
BIE_CARES_Act_Slides%20-%20July%202nd%20Update.pdf.
\6\ National Congress of American Indians, Testimony before U.S.
Commission on Civil Rights Hearing on COVID-19 in Indian Country: The
Impact of Federal Broken Promises on Native Americans, (July 17, 2020),
http://www.ncai.org/resources/testimony/written-testimony-of-president-
fawn-sharp-at-the-hearing-on-covid-19-in-indian-country-the-impact-of-
federal-broken-promises-on-native-americans.
emergency funding and current needs for our ai/an students
As BIE-funded schools continue to plan for the 2020-2021 academic
year, it is clear that our K-12 schools do not have the resources and
educational infrastructure to ensure a safe return for our students. To
address this, 21 national and regional tribal organizations have
requested the following: (1) investment in emergency broadband access
and deployment for BIE schools and tribal communities; (2) at least $1
billion in emergency funding to address the backlog of unfunded repairs
and renovations at Bureau-funded schools which are especially needed to
address overcrowded classrooms; and (3) at least $1.5 billion to BIE
funded schools to meet the health, safety, and educational needs of
students due to the impacts of COVID-19.\7\
---------------------------------------------------------------------------
\7\ Inter-tribal Letter to Congress on Tribal Priorities for COVID-
19 Relief Package, (July 20, 2020), http://www.ncai.org/Covid-19/
indian-country-priorities-for-covid19-stimulus/Tribal_Inter-
Org_COVID_Relief_Letter-7.20.2020-FINAL.pdf.
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conclusion
Thank you again to the Committee for holding this hearing, and I
look forward to your questions and working with you to address these
disparities.
______
Questions Submitted for the Record to the Honorable Joe Garcia, Head
Councilman, National Congress of American Indians
Questions Submitted by Rep. Gallego
Question 1. In an ideal world, what would BIE's decision-making
process about the upcoming school year have looked like?
Answer. The Bureau of Indian Education's (BIE's) decision-making
process regarding the 2020-2021 school year should have centered around
the safety and well-being of students, staff, and the community. Rather
than taking risks in reopening schools, the BIE and Department of the
Interior (Interior) should have deferred to all tribal nations, their
elected leaders, and their local educational advisors on how to reopen
schools safely.
In an ideal world these discussions with BIE, Interior, and tribal
leaders would have occurred in May 2020 rather than in July, which
would have provided more time for tribal communities to prepare for
various situations. Doing so would have allowed for better
collaboration and planning between tribal authorities, local and state
health authorities, and the BIE, in order to develop health and safety
plans alongside community members.
Question 2. The Broken Promises report by the U.S. Commission on
Civil Rights found that remote areas in Indian Country lack
telecommunications infrastructure and broadband access.
2a. How has the lack of infrastructure and broadband access
affected Native students during this pandemic?
2b. How will this affect achievement gaps?
Answer. According to a Government Accountability Office report,
only 65 percent of individuals living on tribal lands had access to
fixed broadband in contrast to the access rate of 92 percent for all
Americans. Further, 34 percent of Native students nationwide do not
have internet access in their homes, compared to 24 percent of students
nationwide.\1\
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\1\ Alliance for Excellent Education, Future Ready Schools,
Students of Color Caught in the Homework Gap, https://futureready.org/
homework-gap/.
---------------------------------------------------------------------------
Not being able to connect to the internet hinders a student's
ability to get assistance or engage in active lesson plans. Further,
not being able to communicate with an instructor or ask questions when
unsure of a program or topic discourages students and furthers the
achievement gap. Finally, if a teacher is not able to engage with their
students and provide formative assessments, their learning progression
can be hindered, which can result in students not achieving the
educational outcomes and goals for the day. Four months of this or more
will widen the achievement gap and have a negative effect on our
students and their futures.
Question 3. The CARES Act provided $153 million for BIE schools. Is
this funding enough to meet the needs of Native students?
Answer. Simply put, no. A significant investment in emergency
funding is needed for the BIE system. On July 24, 2020, 21 national and
regional tribal organizations requested at least $1.5 billion in direct
funding to BIE funded schools to meet the health, safety, and
educational needs of students due to the impacts of COVID-19. This
funding would go toward purchasing education technology hardware,
software, and connectivity; prevention and response efforts related to
COVID; providing mental health services and services specific to the
unique needs of AI/AN students; hiring additional IT staff; increased
transportation to allow students to social distance on buses; and
cleaning and sanitizing school facilities. This does not include the
cost of maintenance and repair to BIE school facilities that would
allow students and staff to abide by CDC guidance
Questions Submitted by Rep. Grijalva
Question 1. We have reviewed reporting by the GAO and the
Department of the Interior's Office of Inspector General indicating
that BIE facilities are currently in subpar conditions and do not meet
health and safety standards.
1a. Can you share your concerns about BIE school facilities, in
subpar conditions, meeting the CDC's guidelines to safely reopen
schools?
Answer. Prior to the pandemic, the Department of the Interior
recently identified $629 million in deferred maintenance for BIE funded
education facilities and $86 million in deferred maintenance for BIE
educational quarters. These maintenance needs include utility systems
such as portable water wells, water treatment plans, and water storage
tanks. It is impossible for AI/AN students to abide by CDC's sanitation
and hygiene standards in response to COVID-19 without the necessary
water and sanitation infrastructure at our BIE schools. Due to the
large amount of deferred maintenance, Indian Country has concerns on
BIE schools meeting CDC's guidelines to reopen schools safely.
Additionally, before the pandemic, it was common for BIE classrooms
to have to close for up to 2 weeks due to the presence of dangerous
mold, unsafe roofs, and HVAC system failures, which all resulted in
pre-pandemic lost instruction during the academic year. Kindergarten
students alone have been displaced from their regular classrooms for 3
years at some schools.
______
Mr. Gallego. Thank you, Honorable Joe Garcia. Thank you for
your testimony.
The Chair now recognizes Mr. Lance Witte.
Did I pronounce that correctly, Mr. Witte?
Mr. Witte. Yes, that is correct.
Mr. Gallego. OK. Mr. Lance Witte, the Superintendent and
high school principal for the Lower Brule Schools in South
Dakota.
STATEMENT OF LANCE WITTE, SUPERINTENDENT AND PRINCIPAL, LOWER
BRULE SCHOOLS, LOWER BRULE, SOUTH DAKOTA
Mr. Witte. Chairman Gallego, Ranking Member Stauber,
honorable members of this Subcommittee, thank you for the
opportunity to testify on behalf of Lower Brule Schools and the
Lower Brule Sioux Tribe, both located in central South Dakota.
I serve as Superintendent of Lower Brule Schools, and my
testimony today focuses on the challenges we face because of
COVID-19. Specifically, my testimony is about the Bureau of
Indian Education's school re-opening guidance and how COVID-19
intensifies our existing funding shortfalls.
In 1868, the Fort Laramie Treaty was signed between
representatives of the Lakota Nation and the United States.
This treaty established the Federal Government's role and
commitment to best promote the education of Lakota youth by
providing teachers, schools, and educational funding.
Our school serves students in one of the most rural and
impoverished communities in the United States. The reservation
covers more than 400 square miles, and 99 percent of our
students are economically disadvantaged.
The primary source of funding for our schools is the Indian
School Equalization Program, or ISEP. These funds, according to
the Bureau's own documentation, are designed for education
related programs, such as staff salaries and benefits,
classroom supplies, textbooks, gifted and talented programming,
and extracurricular activities. Unfortunately, ISEP is not
sufficient.
ISEP dollars must be used to close gaps in other federally-
funded programs like transportation, food service, special
education, and facilities construction and maintenance.
Like many schools, businesses, and governments throughout
America, COVID-19 has severely impacted our budget.
Unfortunately, this pandemic-related impact merely compounds
the annual funding crisis we face because of Federal under-
funding.
The Lower Brule Sioux Tribe received Federal coronavirus
relief funds from the CARES Act and distributed a portion of
these funds to Lower Brule Schools. We are grateful to have
received these funds that can help us provide technology to
students, purchase personal protective equipment, and build out
a wireless internet network so that our students can access
their course work from home.
This year, to ensure the health and safety of our students
and staff, we decided to start school online. One reason we
decided not to re-open our campus was that South Dakota has the
most rapidly increasing rate of COVID-19 spread in the nation,
rising 55 percent in the last 2 weeks alone.
In part, we also decided to start the year with online
learning because of the lack of clear communication from the
BIE about CARES Act funding. When the CARES Act became law in
March, we were grateful that it included tribal set-asides and
increased funding for the BIE. But as the school's leadership
team began crafting plans to resume school, we struggled with
the lack of Federal guidance about this funding.
While our school was provided a tentative funding
projection, no timeline was provided on when these funds would
be available for us to use. It was only on June 29, 2020, that
these BIE funds were deposited into our school's account, just
a few weeks before the start of the school year.
This delayed funding meant that we had to postpone the
start of our school year by 3 weeks.
As we reshuffle our Federal funding to meet immediate
needs, the educational equity gap between our students and
their non-Native peers in non-tribal schools only grows. In
South Dakota, the Native American student proficiency rate on
standardized math, English, and science assessments are less
than half of the statewide average.
In testimony before the Senate Committee on Indian Affairs
on July 29, BIE Director Tony Dearman said that it is the BIE's
firm belief that students succeed when at school. Students
learn and grow while attending school during in-person academic
instruction.
Lower Brule Schools entirely agrees with Mr. Dearman's view
on school re-opening and agrees with Federal policy makers that
a return to in-person learning is good for students.
But as the BIE develops and implements its re-opening
plans, we ask that they keep in mind that Federal funding
directly impacts our ability to welcome students back to
campus.
Funds provided to tribal grant schools need not only to be
adequate but provided in a timely manner. Delayed funding is
unfortunately not new to us, but we hope that this will change.
For example, our school submitted all of its necessary
documents for Title I funding in the fall of 2019 only to
receive these Title I funds on March 20, 2020, after school had
closed for COVID-19.
One hundred and fifty years after the Fort Laramie Treaty
was signed, our tribe and school continue to pursue an
education that best promotes the education of our students.
Underfunding of the Indian School Equalization Program and
other BIE programs does not help.
Congress' trust responsibility to our school is not altered
because of COVID-19, and we ask for sufficient and timely
fiscal relief from our Federal partners so that we can pursue a
safe re-opening of our campus.
Thank you for your time and the opportunity to testify
about these important issues.
[The prepared statement of Mr. Witte follows:]
Prepared Statement of Lance Witte, Ed. S. Lower Brule Schools
Superintendent on behalf of Lower Brule Schools and the Lower Brule
Sioux Tribe
Chairman Gallego, Ranking Member Cook, and honorable members of
this Subcommittee: thank you for the opportunity to testify on behalf
of Lower Brule Schools and the Lower Brule Sioux Tribe, both located in
central South Dakota. I serve as the superintendent of Lower Brule
Schools, and my testimony today focuses on the challenges we face
because of COVID-19. Specifically, my testimony is about the Bureau of
Indian Education's (BIE) school reopening guidance and how COVID-19
exacerbates our existing funding shortfalls.
In 1868, the Fort Laramie Treaty was signed between representatives
of the Lakota Nation and the United States. This treaty established the
Federal Government's role and commitment to ``best promote the
education'' of Lakota youth by providing teachers, schools, and
educational funding.
Our school serves students in one of the most rural and
impoverished communities in the United States; the reservation covers
more than 400 square miles and 99 percent of our students are
economically disadvantaged. The primary source of funding for our
school, the Indian School Equalization Program, or ISEP, provides a
per-pupil allocation to Bureau of Indian Education-funded grant schools
for general operating expenditures. These funds, according to the
Bureau's own documentation, are designed for education-related
programming, such as staff salaries and benefits, classroom supplies,
textbooks, gifted and talented programming, and extracurricular
activities. Unfortunately, ISEP funding is not sufficient to operate
our school well.
One reason for this is that ISEP dollars often must be used to
close gaps in other federally-funded programs, like transportation,
food service, special education, and facilities construction and
maintenance. Draining ISEP funds for needed expenses in other areas
leaves us with less money to pay teachers and invest in student
programming.
Like many schools, businesses, and governments throughout America,
COVID-19 has severely impacted our budget. Unfortunately, this
pandemic-related impact merely compounds the annual funding crisis we
face because of Federal underfunding. The Lower Brule Sioux Tribe
received Federal Coronavirus Relief Funds (CRF) from the CARES Act
(P.L. 116-136) and distributed a portion of these funds to Lower Brule
Schools. We are grateful to have received these funds that can help us
provide technology to students, purchase personal protective equipment,
and build out a wireless internet network so that our students can
access their coursework at home. But to put this in perspective, these
CRF funds do not even cover the existing Federal funding shortfall our
school has faced since 2018.
As I speak with tribal school leaders across South Dakota and
nationwide, it is clear that many of us are in a similar position: Our
schools are forced to use Federal funds intended for educational
programming for other essential needs, often simply to keep our aging
school facilities open. As we reshuffle our Federal funding to meet
immediate needs, the educational equity gap between our students and
their non-Native peers in non-tribal schools only grows. In South
Dakota, the Native American student proficiency rate on standardized
math, English, and science assessments is less than half of the
statewide average.
This year, to ensure the health and safety of our students and
staff, we decided to start school online. One reason we decided to not
reopen our campus was because South Dakota has the most rapidly
increasing rate of COVID-19 spread in the nation, rising 55 percent in
the last 2 weeks alone.\1\ In part, we also decided to start the year
with online learning because of a lack of clear communication from the
BIE about CARES Act funding. When the CARES Act became law in March, we
were grateful that it included tribal set-asides and increased funding
for the BIE. But as our school's leadership team began crafting plans
to resume school, we struggled with a lack of Federal guidance about
this funding. While our school was provided a tentative funding
projection, no timeline was provided about when these funds would be
made available for us to use. Without knowing the confirmed funding
amounts, we could not adequately prepare for the start of school--we
did not have the information we needed to properly budget funds for
personal protective equipment, cleaning supplies, laptop computers for
in-home learning, or mobile hotspots, for example.
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\1\ National Public Radio (NPR), September 8, 2020. ``Coronavirus
Maps: How Severe Is Your State's Outbreak?''
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It was only on June 29, 2020, that BIE funds were deposited into
our school's account, just a couple weeks before the start of school.
This delayed funding meant that we had to postpone the start of our
school year by 3 weeks.
In testimony before the Senate Committee on Indian Affairs on July
29, BIE Director Tony Dearman said that ``it is BIE's firm belief that
students succeed when at school. Students learn and grow while
attending school during in-person academic instruction.'' Lower Brule
Schools entirely agrees with Mr. Dearman's view on school reopening and
agrees with Federal policymakers that a return to in-person learning is
good for students.
But as the BIE develops and implements its reopening plans, we ask
that it keep in mind that Federal funding directly impacts our ability
to welcome students back to campus. Funds provided to tribal grant
schools need not only be adequate, but provided in a timely manner.
(Delayed funding is unfortunately not new to us, but we hope that this
will change; for example, our school submitted its all necessary
documents for Title I funding in the fall of 2019, only to receive
these Title I funds on March 20, 2020, after the school had closed due
to COVID-19.
150 years after the Fort Laramie Treaty was signed, our tribe and
school continue to pursue an education that ``best promotes the
education'' of our students. Underfunding of the Indian School
Equalization Program and other BIE programs does not help. Congress's
trust responsibility to our school is not altered because of COVID-19,
and we ask for sufficient and timely fiscal relief from our Federal
partners so we can pursue the safe re-opening of our campus.
Thank you for your time and the opportunity to testify about these
important issues.
______
Questions Submitted for the Record to Mr. Lance Witte, Lower Brule
Schools Superintendent
Questions Submitted by Rep. Gallego
Question 1. What written guidance or other communication, if any,
did you receive from BIE last spring and/or over the summer regarding
the reopening plans for the upcoming school year?
Answer. The BIE sent out sample surveys for parents in July. We
utilized those surveys with our parents to collect data. After that, no
guidance for the school opening was sent out until late August. We used
information from parent surveys, CDC, South Dakota Department of
Health, South Department of Education, and other school districts
around the state to develop our Return to Learn Plan. Our Return to
Learn Plan was approved on August 5 by the Lower Brule Tribal Council.
We were asked to send the Return to Learn Plan to the BIE, and we met
their request. We then told on September 4 that the BIE was evaluating
our Return to Learn Plan with a rubric that we were never provided. On
September 15, we received the feedback on Return to Learn Plan and were
asked to make adjustments based on the feedback. We modified our Plan
in a couple of days as directed. Finally, we received an email from Dr.
Tsosie, BIE Minneapolis, before we were able to send the modifications
that they approved the Plan without modifications.
______
Mr. Gallego. Thank you, Mr. Witte.
The Chair now recognizes Ms. Sue Parton, the President of
the Federation of Indian Service Employees.
STATEMENT OF SUE PARTON, PRESIDENT, FEDERATION OF INDIAN
SERVICE EMPLOYEES
Ms. Parton. Good afternoon, Chairman Grijalva, Subcommittee
Chairman Gallego, Ranking Member Stauber, and distinguished
members of the Subcommittee.
My name is Lahoma Sue Parton. I am a member of the Kiowa
Tribe of Oklahoma. I am president of the Federation of Indian
Service Employees, affiliated with the American Federation of
Teachers. FISE represents 6,700 employees at 350 work sites in
22 states run by the Bureau of Indian Affairs, the Bureau of
Indian Education, the Office of Special Trustee for American
Indians, and the Office of the Assistant Secretary for Indian
Affairs under the Department of the Interior.
The coronavirus has hit Native American communities
especially hard, and misinformation or no information has
complicated the lives and careers of our members.
On March 16 and 17, all Bureau-operated schools were shut
down and boarding schools were directed to send students home,
but employees were directed to continue to report for duty.
Employees were eventually directed to shelter in place and
initially placed on weather safety leave. They were ultimately
directed to telework, yet they were not provided with training
nor equipment to telework. Many lived in rural areas with
little or no broadband or internet access.
At the end of April, FISE received a draft of the BIE
School Re-opening Plan. We requested and were granted the
opportunity to participate in the re-opening plan.
The first meeting of the BIE Re-opening Task Force met by
conference call on May 22. However, all subsequent meetings
were canceled.
On June 12, I received an e-mail from BIE stating that the
task force would not be reconvened.
On June 24, the BIA sent out an e-mail to the employees
stating, ``Your BIE e-mail is scheduled to migrate this
evening.''
The new software required users to have a DOI-issued
personal identity verification card and card reader, which the
majority of BIE employees did not have and could not acquire
due to the closings of the credentialing centers.
The BIE employees were immediately put in the position
where they could not receive information from the union or
communication from their supervisors since they could not
access the government e-mail. This situation continues to
affect about 1,000 BIE contract educators today.
In late June, the BIE School Re-opening Plan was published
for comment in the Federal Register with the announcement of
public and tribal comment sessions to be presented virtually. I
sent the union's comments to the BIE per instructions for
publication, but it was sent back to the BIE Employee Labor
Relations Office to address the concerns and questions.
The union then submitted our proposal on the re-opening
plan, which was also ignored.
Throughout July, FISE made numerous attempts to communicate
with BIE. We were forwarded guidance from BIE's Human Resources
Office, from the DOI, Indian Affairs, BIE, state government and
tribal government, which may or may not have been applicable to
all four agencies that we represent. It was confusing and
difficult to decipher.
At the end of July, we were informed by BIE that there was
a glitch causing unemployment applications to be denied to
contract educators. BIE devised a work-around where employees
would have to submit several documents on an individual basis
to apply for retroactive benefits.
Many employees lacked internet access to these submissions
except at their work sites, which they cannot reach due to the
pandemic.
Throughout the summer, we requested information on the
teaching method and distance learning plans the BIE would be
offering so we could notify employees and help to ensure a safe
and productive working environment. It is now 4 work days
before the re-opening date, and we have not received any
decision. The most recent version of the BIE re-opening plan,
``Return to Learn,'' simply states that BIE prefers to offer
in-person teaching to the extent possible.
About 80 percent of our members are affiliated with a
Native American tribe and traditionally live in
multigenerational homes, amplifying concerns about spreading
the virus to their family members. The majority of Native
Americans depend on Indian Health Service for health care,
which is underfunded by BIE. Our tribal nations have already
been decimated.
FISE believes schools must re-open but must do so safely.
We must follow available science and public health guidance and
the expertise of educators and health practitioners.
As we see across the country, premature return to normal
activity without proper precautions risks infection surges and
new shutdowns, harming our communities and our economy.
As to the ``Return to Learn'' plan, safety measures are
only recommendations, not directives. There are several times
where the guidance equivocates, such as ``when feasible,'' ``if
possible,'' ``within reason,'' or ``to the extent practicable''
when referring to safe measures like social distancing, face
coverings, or other PPE.
I want to be clear that what we want is an opportunity to
truly collaborate with BIE. Our members have the right to a
workplace with adequate infection control practices and PPE,
and our labor laws obligate employers to discuss these matters.
We want a solution-driven dialogue with employers that will
ensure staff and students are safe.
Thank you for this opportunity.
[The prepared statement of Ms. Parton follows:]
Prepared Statement of Sue Parton, President, Federation of Indian
Service Employees
Good afternoon, Chairman Gallego, Ranking Member Cook and
distinguished members of the Subcommittee.
My name is Lahoma Sue Parton, and I am a member of the Kiowa Tribe
of Oklahoma. I currently serve as the president of the Federation of
Indian Service Employees, affiliated with the American Federation of
Teachers. FISE is headquartered in Albuquerque, NM, where I have worked
and resided for the past 44 years. FISE represents about 6,700
employees in the Bureau of Indian Affairs, the Bureau of Indian
Education, the Office of the Special Trustee for American Indians and
the Office of the Assistant Secretary-Indian Affairs, under the
Department of Interior, who work at about 350 work sites located in 22
states.
FISE represents 2,817 BIE bargaining unit employees who work at 55
bureau-operated schools and offices located in 10 different states.
Currently, 2,281 of our members work in schools located in Arizona and
New Mexico. The coronavirus has hit Native American communities
especially hard, particularly in how it has affected BIE-operated
schools and how misinformation, or no information, from BIE/DOI
management has complicated the lives and careers of our members.
Although I became aware in January, through news reports, of COVID-
19's devastating impact on a Washington state nursing home, I was not
yet aware of its potential to become a pandemic that would affect us
all. It was not I received an email at the end of January from the AFT,
with guidance and resources regarding preparing for and taking
precautions against a possible airborne viral pandemic, that I realized
the implications of the coronavirus. About the same time, I received
inquiries from some OST members who had questions as to why they were
being advised to take home their laptop computers, just in case.
In early March, I was notified that my Federal supervisor had
attended a conference in Washington state and was told to quarantine
for 14 days upon her return to Albuquerque. In mid-March, when the
governors of New Mexico and Oregon shut down their public schools, many
BIE schools were on spring breaks, so we were inundated with inquiries
from employees as to what BIE was going to do. On March 16 and 17, all
bureau-operated schools were shut down and boarding schools were
directed to send students home, but employees were directed to continue
to report for duty. This raised many questions, but BIE did not provide
consistent answers. Employees were eventually directed to ``shelter in
place,'' being initially placed on weather/safety leave provided
through guidance from DOI/BIE. They were ultimately directed to
telework, allowing them to fulfill their school year contracts. While
this is the status of the majority of our BIE employees, employees were
not provided with training or equipment to telework, and they lived in
rural areas that had little or no broadband or internet access.
On March 18, after numerous unsuccessful attempts to get decisive,
consistent guidance from BIE/DOI and an increase in inquiries from
worried employees, I sent out an email to our entire bargaining unit to
inform them that their union was pursuing every avenue to advocate for
them and get answers to their concerns. This correspondence was sent
through the government email system, per the collective bargaining
agreement. I was censured by the Bureau of Indian Affairs for doing so.
In early April, management offered paid leave under the Family
First Coronavirus Response Act, as a way for employees to remain on
telework or to care for themselves and family members, but the
administration of these leave policies were often misinterpreted and
applied inconsistently throughout BIE. Once the decision was made for
bureau-operated schools to remain closed through the end of the school
year, the Employee Performance Appraisal Plan closeout issue was
negotiated to fairly rate employees, which would affect their next
year's contract.
At the end of April, FISE received a draft of the BIE School
Reopening Plan. As the exclusive representative of the employees, we
requested and were granted the opportunity to participate in the
reopening plan. The first meeting of the BIE Reopening Task Force met
by conference call on May 22, however all subsequent meetings were
canceled. On July 12, I received an email from BIE stating that the
task force would not be reconvened. The reason given was to allow the
BIE to align the reopening plan with the administration's ``Opening Up
America Again'' guidelines.
To exacerbate the situation, on June 24, the BIA Office of
Information Management Technology, which controls the BIE email system,
sent out an email to employees stating, ``Your BIE email is scheduled
to migrate THIS evening.'' The BIE was migrating to Office 365, which
required users to have a DOI-issued personal identity verification
(PIV) card and card reader, which the majority of BIE employees, who
were mostly on their summer furlough, did not have and could not
acquire, due to the closures of credentialing centers. The BIE
employees were immediately put in a position where they could not
receive information from the union or directives and communication from
their supervisors, since they could not access their government email.
The situation continues to affect about 1,000 BIE contract educators
today. The union was not notified of this change in employees' working
conditions, which would have allowed the employees to bargain over the
impact and implementation of the change, so a grievance was filed. We
have been informed that our grievance has been upheld, but we have not
yet received the relief we are seeking.
In late June, the BIE School Reopening Plan was published for
comment in the Federal Register, with announcement of public and tribal
consultation/comments sessions to be presented virtually. I sent the
union's comments to the BIE per instructions for publication, but it
was sent back to the BIE ER/LR office to address the concerns and
questions. The union then submitted our proposal on the reopening plan,
which was obviously ignored.
Throughout July, FISE made numerous attempts to communicate with
BIE regarding the reopening plans and types of instruction, email
issues, concrete information on types of leave for employees, and
specific concerns for the bureau-operated schools that have residential
operations, including the four off-reservation boarding schools located
in Oregon, California, South Dakota and Oklahoma. We received only
guidance provided to us by BIE's Human Resources office, from DOI,
Indian Affairs, BIE, state governments and tribal governments, which
may or may not be applicable to all four agencies we represent. It was
confusing and proved difficult to decipher.
At the end of July, we were informed by BIE HR that there was a
problem with contract educators who normally receive unemployment
during their furlough, because of a glitch causing unemployment
applications to be denied. We learned that BIE sends personnel
information to the Interior Business Center (payroll office), who sends
the information to its processing contractor, Equifax, who sends it to
various states' Labor departments for unemployment eligibility
information for benefits. There was a problem with the transfer of
information from IBC to Equifax, so employees did not receive
unemployment benefits. BIE HR devised a ``workaround'' where individual
employees would have to submit several documents on an individual basis
to apply for retroactive benefits. I'm not sure if this has been
resolved, but I doubt that it has, with the lack of internet access for
most employees, except at their work sites, which they could not reach
due to the pandemic.
Throughout the summer, we have requested a list of all of the BOS
schools and what type of teaching they will be offering their students,
so we can notify employees and ``impact and implementation'' bargain
over any part of the plan to ensure a safe and productive working
environment. It is now 4 work days before the reopening date, and we
have not received any decision, other than the most recent version of
the BIE reopening plan, ``Return to Learn,'' which still states that
BIE prefers to offer in-person teaching ``to the extent possible.''
This leaves the decision on how to reopen schools on September 16 up to
each individual school working with the BIE associate deputy director
for their schools, adhering to any tribal government directives and the
guidelines provided by their state governors and their local health
officials.
About 80 percent of our members are affiliated with a Native
American tribe and traditionally live in multigenerational homes, which
accelerates their concerns about contracting the virus and spreading it
to members of their families, particularly the elderly with many
underlying health conditions. The majority of Native Americans depend
on Indian Health Service to provide their healthcare, which is as
vastly underfunded as BIE. Having a personal computing device and a
vehicle is often a luxury for many Native families.
FISE believes schools must reopen, but must do so safely. We must
follow available science and public health guidance and the expertise
of educators and health practitioners. As we are seeing across the
country, premature return to ``normal'' activity without proper
precautions risks infection surges and new shutdowns, which harms our
communities and our economy.
Based on what is currently known about the disease and its spread,
there are two essential components each community and our Nation as a
whole must commit to. These are imperative and should be considered
non-negotiable, and they are preconditions for opening school
buildings.
1. Physical distancing until the number of new cases declines for at
least 14 consecutive days in a given region.
2. A robust public health infrastructure with the capacity for
effective disease surveillance, tracing, isolation of those
infected and quarantine.
The best way to keep students and staff in school is to ensure that
community transmission is under control. However, getting students to
and from school, and what happens in schools, are just as important.
As to the ``Return to Learn'' plan, non-negotiable safety measures
are recommendations, not directives. There are several spaces where the
guidelines are worded in equivocating language, such as ``when
feasible,'' ``if possible,'' ``within reason'' or ``to the extent
practicable,'' when referring to safety measures such as social
distancing, face coverings and other PPE. Our tribal nations have
already been decimated. I want to be clear that we are not calling for
an overhaul of the BIE. To the contrary, we acknowledge that the BIE
has the right intentions, and we support its mission 100 percent. What
we want is an opportunity to truly collaborate with the agency and to
be heard.
We share the BIE's goal of educational excellence and equity for
Native students--to ensure that they are able to meet the same
challenging college- and career-ready standards required of all
students. It was encouraging to see that the plan aspires to meet the
academic, health and social needs of our Native children.
In conclusion, I would like to say that our members have the right
to a workplace with adequate infection-control practices and PPE to
keep them safe from exposure to hazards like COVID-19, and our labor
laws obligate employers to discuss these matters. As a union, we can
engage in a solution-driven dialogue with employers that will ensure
staff and students are protected from COVID-19 exposure in the
workplace.
Thank you for this opportunity.
______
Questions Submitted for the Record to Ms. Sue Parton, President,
Federation of Indian Service Employees
Questions Submitted by Rep. Gallego
Question 1. In its letter to Tribal leaders, the BIE said that
``educators will receive professional development which supports them
being effective instructional leaders in a COVID-19 environment.'' To
your knowledge, have teachers received that training?
Answer. In a request the union sent to BIE on August 10 and again
on August 25, we asked for information as to what type of teaching each
of the BIE schools would have. Normally, that would be done through an
official notification outlining how the affected educators would be
impacted, what the provision for the selected type of teaching would
entail and how management would meet the requirements for that type of
instruction. Then, we would work with employees and management to
ensure that all safety measures would be provided to accommodate those
needs. However, since we have not yet received that information for all
schools, I can only respond that a few schools I do know of have
provided professional development to the educational staff. But, I
cannot verify that is the case for ALL BIE operated schools.
Question 2. In June, you mentioned that BIA's Office of Information
Management Technology reached out to BIE staff regarding the BIE e-mail
system and that there were issues with BIE employees receiving
information about their contracts.
2a. Since you were not notified of the change in working conditions
for employees, does this mean that the bargaining period for BIE
employees has ended?
Answer. The change was made without prior notice to the union, and
the union has still not received official notice of the change, in
violation of the CBA. Consequently, it is the union's position that it
may still conduct I&I bargaining once (if) the official notice is ever
provided. Not if management complies with the relief we are seeking in
the grievance filed on June 26. The reason this change was so
disruptive is because it required that employees have a card reader
attached to their computers in order to access their e-mail accounts.
With the vast majority of employees working from home, card readers
were not issued for their home use, which meant none of these employees
could access their e-mail accounts remotely, and that impacted their
ability to obtain information about their contracts and other work-
related information.
2b. What relief were you seeking for the grievance?
Answer. To rescind the decision to implement card readers and
Office 365, and instead return to the former BIE e-mail system. We
further requested that once the decision is made to move forward with
the new system, to officially notify the union, afford for I&I
bargaining, then go from there. This has caused a lot of undue
confusion, stress and anxiety in a time when there's plenty already for
our employees.
2c. Roughly how many BIE employees continue to be impacted by this
technology delay?
Answer. About 1,000 at this time.
______
Mr. Gallego. Thank you, Ms. Parton. I apologize if I
mispronounced your name earlier.
And thank you to all the witnesses for their testimony.
The Chair now recognizes Ms. Therese Yanan, the Executive
Director for the Native American Disability Law Center.
Thank you, Ms. Yanan.
STATEMENT OF THERESE YANAN, EXECUTIVE DIRECTOR AND ATTORNEY,
NATIVE AMERICAN DISABILITY LAW CENTER
Ms. Yanan. Thank you, Chairman Gallego.
Chairman Gallego, Ranking Member Stauber, members of the
Committee, thank you for the opportunity to speak with you
today.
The Native American Disability Law Center is a private non-
profit that addresses the unique legal issues facing Native
Americans with disabilities and is a part of the Federal
Protection and Advocacy System, a nationwide system dedicated
to promoting the rights of people with disabilities.
For over 25 years, I have had the pleasure and privilege of
working with the various tribal communities of the Four Corners
region, primarily the Navajo Nation and Hopi Tribe.
Since its inception in 1994, a primary focus of the Law
Center's services and a major concern of our community has been
the education of Native American children with disabilities,
especially those attending BIE schools.
The BIE's current obligation to meet the educational needs
of its students, including those with disabilities is rooted in
its trust responsibility to tribes and under Federal law. For
approximately 6,000 Native American students with disabilities,
the Bureau must comply with the requirements of the Individuals
with Disabilities Education Act, known as the IDEA.
As an agency, the Bureau struggles to meet the needs of
students with disabilities attending its schools. A series of
GAO and IG reports and the Department of Education corrective
action plans documents the Bureau's inability to meet even the
basic educational needs of students with disabilities.
For 9 consecutive years, the Department of Education has
found the Bureau needs intervention based on its repeated
failure to comply with corrective action plans to properly
implement the IDEA. The Bureau's long-standing inability to
comply with the IDEA made education for Native American
students with disabilities attending their schools challenging
under the best of circumstances.
Then the pandemic hit. While state education agencies were
issuing guidance to school districts concerning the provision
of educational services, families of students in BIE schools
were left in the dark. Schools shut their doors with no
communication to students with disabilities about how their
services would be provided.
Beginning in April and continuing through June, the Law
Center checked in with clients in Bureau schools across the
Four Corners region. One parent was contacted by a school
counselor who had been counseling her son and told that the
school terminated his contract.
A speech language therapist in another school was told to
stop providing services even though she could do so remotely.
Some parents were provided packets of work for their
children, but they were often either far above or below the
child's grade level.
Across the board, these families were clear that their
children were not receiving any meaningful education or
services.
In July, when the Bureau held listening sessions on the
topic of a school re-opening plan, stakeholders expressed
concern about re-opening too early in areas with high COVID
rates, not having reliable technology to support distance
learning, and the lack of training for staff on how to educate
students in remote learning environments.
Despite this input, the Bureau issued a letter on August 6
suggesting that all schools return to in-person learning as
soon as possible. The letter referenced the ``Return to Learn''
plan which provides little substantive guidance on the actual
re-opening of schools for the current school year.
While the clear goal of the Bureau is for students to
return to in-person learning as soon as possible, the plan
includes two other alternatives. One is internet-based
learning.
The other is an alternative education program for students
without technology or connectivity. The plan instructs schools
that they must provide students with disabilities all services
identified in their IEPs, regardless of which option they
choose.
The Law Center has significant concerns with these options.
First, with such a heavy focus on return to in-person learning,
the Bureau failed to construct effective internet-based
educational services. Many students in Bureau schools lack the
technology or reliable internet necessary to fully participate
in an online learning platform.
Further, by giving schools the choice of providing an
alternative program to families who do not have access to
technology, the Bureau is contributing to the already existing
inequities facing tribal communities.
Additionally, the plan fails to provide guidance on how
special education services will fit into the alternative
program or how students would be connected with service
providers.
Recent outreach revealed that schools have not been in
contact with families, leaving them unsure of what the current
school year looks like. Many families are afraid to return
their children to school for in-person learning. Students
should not be forced to return to school because the Bureau
failed to provide a viable distance learning option.
The Bureau must take immediate steps to address the needs
of students with disabilities by developing a more robust and
comprehensive distance learning plan that provides clear
guidance on meeting the educational needs of students with
disabilities.
We appreciate the Subcommittee's interest in the issues
facing Native American students with disabilities.
Thank you for your time today.
[The prepare statement of Ms. Yanan follows:]
Prepared Statement of Therese E. Yanan, Native American Disability Law
Center
Chairman Gallego, Ranking Member Cook, members of the Subcommittee:
thank you for the opportunity to testify today regarding reopening
schools funded and operated by the Bureau of Indian Education. My name
is Therese Yanan and I am an attorney and the Executive Director of the
Native American Disability Law Center.
introduction and background
The Native American Disability Law Center (Law Center) is a private
non-profit legal organization that serves Native Americans with
disabilities in the Four Corners region of Arizona, Colorado, New
Mexico and Utah. The Law Center's mission is to advocate so that the
rights of our clients are enforced, strengthened, and brought in
harmony with their communities. With offices in Farmington, New Mexico
and Flagstaff, Arizona, our advocates work to ensure that Native
Americans with disabilities have access to justice and are empowered
and equal members of their communities and nations. The issues we
address include civil rights, special education, health care, and
access to public and private services. Our staff investigate abuse and
neglect in care facilities, and provide rights-based training for
people with disabilities, their families, educators and service
providers.
The Law Center is a part of the Federal Protection and Advocacy
(P&A) System, which is a nationwide system of legal organizations
dedicated to promoting and protecting the rights of people with
disabilities living in every state and U.S. territory. The Law Center
is the only P&A that is dedicated to meeting the unique needs of Native
Americans with disabilities. While we focus our direct services in the
Four Corners, as national leaders in the field, the Law Center
routinely consults with other legal organizations, including in the
national P&A network, to address the legal issues facing Native
Americans with disabilities. The Law Center is often invited to speak
at regional and national disability rights conferences. In 2019, the
Law Center was recognized as the organizational recipient of the annual
National Disability Rights Network Advocacy Award for its efforts to
address the educational needs of Native American students with
disabilities attending a BIE school.
For over 25 years, I have had the pleasure and privilege of working
with the various tribal communities of the Four Corners, primarily the
Navajo Nation and Hopi Tribe. Since its inception in 1994, a primary
focus of the Law Center's services and a major concern of our community
has been the education of Native American children with disabilities.
The Law Center addresses the special education needs of Native
American students with disabilities in the Arizona, New Mexico,
Colorado and Utah public school systems and the Federal Bureau of
Indian Education (BIE) system. The Law Center provides services that
can include informal advocacy, technical assistance, and legal
representation to its clients. The Law Center has been working to
address the unique legal issues facing Native American students with
disabilities attending BIE schools for 25 years including in the
seminal education civil rights cases Bitsilly v. Bureau of Indian
Affairs, 253 F. Supp.2d 1257 (D.N.M. 2003) and Stephen C. v. BIE, No.
3:17-cv-08004-SPL (D. Ariz. 2017). The legal issues Native American
students with disabilities face in BIE schools are often more
complicated because of jurisdiction and tribal sovereignty issues,
inconsistent practices across BIE schools, persistent failure to
adequately staff schools, and a lack of formalized special education
policies and procedures.
history of indian education in the united states
The history of Indian education in the United States has a painful
past that has left a long-lasting impact on many Native American
communities. With the passage of the Civilization Fund Act on March 3,
1819, the U.S. Government ushered into practice forced assimilationist
policies that led to an era often referred to as the ``Indian boarding
school era.'' This era created boarding schools that were run by the
Federal Government and religious officials and designed to assimilate
Native Americans into the dominant culture. During this shameful era,
Native American students were coerced into attending the boarding
schools where they were stripped of their cultural practices, language,
and appearances. The Federal Government has recognized that it was
Federal policy to ``acculturate and assimilate'' Native American
communities by eradicating their tribal cultures through the boarding
school system. In 1928 the Meriam Report documented the conditions of
the boarding school system as overcrowded, without adequate food or
medical care, with a uniform and ineffective curriculum and low teacher
standards, and with child labor being used to keep the schools running.
Many may not know that for some the disruption of the boarding school
era has not ended since many Native American students who do have a
high school in their community attend BIE boarding schools since it is
their only option if they want to obtain a high school diploma.
The Indian boarding schools were originally operated by the U.S.
Department of Interior's Bureau of Indian Affairs. This system of
schools was later taken over by the Office of Indian Education
Programs, which was renamed and reestablished as the BIE in 2006. The
BIE is headed by a director, who is responsible for the direction and
management of all education functions, including the formation of
policies and procedures, the supervision of all program activities and
the approval of fund expenditures appropriated for education functions.
The BIE's current obligation to meet the educational needs of its
students, including students with disabilities, is rooted both in its
unique trust responsibility to tribes and Federal law. The Federal
Government's trust responsibility to provide for the education of
Native American students is established primarily through treaties
between the Federal Government and tribes, but also through Federal
statutes, court decisions and executive actions. The BIE's obligations
to meet the educational needs of Native American students are detailed
in the Indian Education Act, the Indian Self-Determination and
Education Assistance Act and other numerous Federal statutes and
regulations, such as the Every Student Succeeds Act. In its own
regulations, the BIE has declared its mission is to provide ``quality
education opportunities from early childhood through life in accordance
with a tribe's needs for cultural and economic well-being, in keeping
with the wide diversity of Indian tribes and Alaska Native villages as
distinct cultural and governmental entities.'' In addition to funding
and operating its own schools, the BIE is the State Education Agency
(SEA) for tribally-controlled schools funded by the BIE, but operated
by other tribal entities like tribal school boards or departments of
education. Currently, there are 183 BIE-funded elementary and secondary
schools, located on 64 reservations in 23 states serving roughly 43,000
students, including 6,000 students with disabilities. In addition, the
BIE funds or operates off-reservation boarding schools and dormitories
near reservations to support students who attend public schools far
from their homes.
For Native American students with disabilities, the BIE must comply
with the requirements of the Individuals with Disabilities Education
Act (IDEA) and Section 504 of the Rehabilitation Act (Section 504) in
addition to other applicable Federal education laws. The BIE has never
promulgated its own regulations implementing the IDEA. Its IDEA
policies and procedures have been in draft form since 2012.
Importantly, on July 17, 2020, the BIE for the first time issued a
national policy providing interim guidance to its operated elementary
and secondary schools and dormitories on the ``nondiscrimination
prohibitions based on disability found in Section 504[.]'' Prior to
issuing this policy, the BIE had no written policy regarding its
obligations to comply with Section 504, a provision passed in 1973.
bie's failure to meet needs of students with disabilities and general
concerns
As an agency, the BIE struggles to meet the needs of students with
disabilities attending its schools. Well documented in a series of U.S.
Government Accountability Office (GAO) Reports, Inspector General
reports, the U.S. Department of Education State IDEA Determinations and
related communications, internal reports and corrective action plans,
the BIE is plagued with high staff turnover, lack of staff training,
lack of special education and related service providers, and an
inability to properly monitor its special education program. These
inadequacies impact the BIE's ability to meet even the basic
educational needs of students with disabilities often resulting in
students' being owed compensatory or ``make up'' education services.
According to a June 2020 GAO Report, the U.S. Department of
Education, which provides approximately $78 million annually to the BIE
to meet the educational needs of Native American students with
disabilities, raised significant concerns about BIE's implementation of
IDEA including concerns about BIE's long-standing noncompliance with
the IDEA's requirements and repeated failure to take the Department of
Education's required corrective actions. The Report ultimately
determined BIE was not complying with the IDEA. Troublingly, the GAO
found that the BIE did not provide or did not account for 38 percent of
special education and related time for students with disabilities. One
school did not provide any service to three of its students.
Furthermore, the BIE has not established whether and when missed
service should be made up, which has led to inconsistent practices
among schools.
For 9 consecutive years, the Department of Education has found that
the BIE ``needs intervention'' based on its repeated failure to comply
with corrective action plans to properly implement the IDEA. Students
attending BIE schools have the lowest outcomes of any students in the
country.
In practice, this means that Native American students with
disabilities are not provided with the critical special education and
related services they are entitled to receive in their Individual
Education Plans (IEPs), the document that defines a student with a
disability's education program under the IDEA. Families who avail
themselves of the IDEA's procedural safeguards like filing informal and
formal complaints against the BIE often wait many months or in extreme
circumstances, years, for resolution. Many of the Law Center's clients
do not contact the Law Center with esoteric legal issues: families
simply want to schedule an IEP Meeting with their school and can't get
a response, are concerned their student's IEP is not being properly
implemented with fidelity, or want to access their student's
educational records, which they have been denied. These issues are
fundamental to the student's ability to learn and access his or her
educational program and their parents' ability to fully participate in
their child's education contrary to the clear mandates of the IDEA.
The BIE's long-standing inability to comply with the IDEA and
Section 504 made education advocacy for Native American students with
disabilities attending BIE schools challenging under the best of
circumstances. Then the pandemic hit.
covid-19 school closure and bie response
In March 2020, Americans began to come to grips with the fact that
we were facing a global pandemic. By late March, many states had
announced that schools would be closed for the remainder of the year.
New Mexico made this decision on March 27, while Arizona followed suit
3 days later. State Education Agencies (SEAs) began issuing guidance to
school districts concerning the provision of educational services and,
in particular, special education services to students with
disabilities. The message was clear: schools must continue to provide
students with disabilities the supports and services identified in
their individualized education plans (IEPs). Should a school be unable
to provide those supports and services, it must be prepared to review a
student's progress toward goals and provide compensatory services to
enable that student to be in a position s/he would have been if
services had been provided. While it has not been a smooth road for
students with disabilities in state-funded schools, there was at least
a map to follow and a general understanding of expectations.
Meanwhile, families of students in schools overseen by the BIE were
left in the dark. Schools shut their doors with no communication to
students with disabilities about how their services would be provided.
In early April, one school sent parents a letter informing them that
the school was closed, no education services would be provided, IEP
meetings would be held virtually or canceled, and students with IEPs
may be eligible for compensatory education services. Beginning in April
and continuing through June, the Law Center checked in with clients in
BIE schools across the Four Corners area. One parent was contacted by a
school counselor who had been providing ongoing counseling services to
her son. The counselor stated that his contract was terminated by the
school. A speech language therapist in another school was told to stop
providing services, even though she could do so remotely. Some families
were provided with packets for their children to work on, but they were
often either far above or below the child's grade level. Occasionally,
a special education teacher would call to check on a student, but this
check in was typically a cursory call to see how the student was doing.
Across the board, the message from these families was clear: we are not
receiving any meaningful education or services. Not only were students
being denied educational opportunities, but Native American students
with disabilities were left without access to critical services. During
the pandemic, alternative services in the community were often
inaccessible as resources were being directed toward managing an influx
of COVID-19 cases at under-resourced health systems.
On April 21, 2020, the Law Center, along with civil rights and
disability rights advocates across the country, submitted a request to
the BIE to issue guidance to its schools. This request went
unacknowledged and unanswered.
On April 30, 2020, the BIE held a public listening session on the
disbursement of $153 million of CARES Act funding. Despite active
participation and input from tribal leaders and school representatives,
the BIE failed to publicly release any plan concerning the funding.
The school year ended without fanfare, without grades, without
progress reports, and without any clear direction moving forward. On
June 11, 2020, Margo DeLaune, Acting Associate Deputy Director for the
BIE Division of Performance and Accountability (which oversees special
education in BIE schools) signed a ``Dear School Leader'' letter
addressing the continued responsibility of schools under the
Individuals with Disabilities in Education Act (IDEA). The letter
reminded schools of their obligations to students with disabilities and
highlighted the need for schools to assess their obligation to provide
compensatory services during the time that school facilities have been
closed due to COVID-19, to conduct annual evaluations, and to figure
out how to provide extended school year (ESY) services to students if
schools remained closed through the summer. This guidance instructed
schools to contact families and schedule IEP meetings or provide notice
that an IEP meeting would be scheduled in the future to discuss these
issues. Many of our clients have not been contacted by schools
concerning compensatory services or IEP meetings. It is unclear whether
the BIE has provided oversight of its schools on this important
requirement.
bie re-opening plan
In July, the BIE held three listening sessions on the topic of a
school re-opening plan. The stated purpose of these listening sessions
was to allow stakeholders input on the needs of their individual
schools and communities. Concerns were expressed about reopening too
early in areas with high rates of COVID-19 transmission, not having
reliable technology to support distance learning, lack of safe and
reliable bus transportation, mental health needs of students, and lack
of training for staff on how to educate students in a remote learning
environment. While the BIE agreed to take all these comments and
concerns under consideration, they quickly issued a letter on August 6,
2020 suggesting that all schools return to in-person learning as soon
as possible. The letter referenced a Return to Learn plan, which was
located on a new BIE website: returntolearn.bie.edu. This 76-page
document provides very little substantive guidance on the actual
reopening of schools for the 2020-2021 school year.
While the clear goal of the BIE is for students to return to in-
person learning as soon as possible, the plan outlines three possible
learning environments for students:
1. In person for the full school day;
2. Distance learning through a Learning Management System (LMS); or
3. Alternative education programs as determined by each school
leader for students without capability to connect to
distance learning instruction.
The plan instructs schools that they must provide students with
disabilities all services identified in their IEPs, regardless of
whether they choose the distance learning or alternative education
option. There is no mention of the June 11 letter instructing schools
on their obligations to provide compensatory education services, annual
evaluations, or ESY. The Law Center is not aware of any BIE funded
school that was able to provide ESY to any student. We also have
serious concerns about whether schools have communicated with parents
about ESY or their child's right to these services.
The Law Center has significant concerns with the options available
to families. First, with such a heavy focus on a return to in-person
learning, the BIE has failed to construct an effective method of
delivering educational services though distance learning. Many students
in BIE schools lack the technology necessary to fully participate in an
online learning platform. Even if they have a computer, internet
service is often unavailable, unreliable or slow. The BIE has not
released any plan to ensure students have adequate technology to access
distance learning platforms or, in the case of students with
disabilities, special education and related services. Further, by
giving schools the choice of providing an ``alternative education
program'' to families who do not have access to technology, the BIE is
contributing to the already existing inequities in tribal communities.
There is no guidance on how special education services would fit into
the ``alternative education program'' or how students would be
connected to service providers. The BIE assumes that in person
education and services will be possible; however, as we see school
reopening play out across the country, this goal seems unrealistic.
Another concern is the BIE's statement that ``schools should assist
families in understanding their responsibility in supporting their
child's education in this environment.'' While families play an
important role in a child's life both in and outside of school, they
cannot be held responsible for their education. This is especially true
for families of students with disabilities. Special education teachers
receive specialized training in working with students with
disabilities; it cannot fall on parents to provide these services in
the home. Further, as previously mentioned, many of these students rely
on the school for assistance with basic needs that require specialized
knowledge and training. A parent cannot be expected to be a speech
therapist, occupational therapist, and teacher--particularly when they
are likely facing the additional stresses that have come with the
pandemic and their own work responsibilities.
Recent outreach to families revealed that schools have not been in
contact with students with disabilities to schedule IEP meetings and
that families are unsure of what the 2020-2021 school year will look
like. Many families remain concerned about returning their students to
school for in-person learning. Some, particularly on the Navajo Nation,
have experienced loss of close family members to the virus. They should
not be forced to send their children back to school simply because the
BIE cannot provide a viable distance learning option.
action items
We respectfully request you consider taking the following steps to
immediately address the BIE's failure to account for and address the
specific and unique needs of students with disabilities during the
COVID-19 related school closures and in its Reopening Plan.
First, the BIE should be required to create a COVID-19 Response
Team properly staffed with the requisite educational and public health
and safety expertise that is responsible solely for addressing the
BIE's Reopening Plan. Specifically, this Response Team should be
responsible for developing a clear communication plan and strategy that
addresses the needs of both school administration and leadership and
parents and families. For every school, there should be coordination
between the Response Team, the School Leadership, Tribal
representatives and parents. Given the history of Indian Education, the
BIE should recognize the importance of building partnerships with
tribal governments and families. These partnerships are essential to
solving the complex problems facing these schools.
The Response Team should have a clear communication plan with
concrete implementation strategies for school administration and
leadership to follow including how best to communicate with families,
document any concerns or issues facing families and how families can
contact the school to address them. For families, the Response Team
must have a cogent, consistent communication plan that does not rely
solely on the BIE's ``Return to Learn'' website in order to meet the
needs of families who may not have access to internet, read English or
know about the website. Further, the Response Team should create a
system or complaint process where a specific Response Team member is
tracking individual family issues in order to connect that family
directly with the school to work through the issues for prompt
resolution.
Importantly, the Team should have an appropriate level of staffing
to successfully ``roll out'' the Reopening Plan to all of its operated
schools and still be available to provide technical and direct
assistance to those schools so that Reopening Plan expectations are
clearly communicated and issues are addressed quickly and effectively.
Second, the BIE should develop a more robust Distance Learning
Plan. As discussed above, the BIE's current iteration of its remote and
distance learning plan is not comprehensive, nor does it provide clear
guidance on how a student with a disability's educational needs will be
served. The plan must first clearly state that distance learning must
be made available to all students with disabilities. Further, the plan
must clearly require that the schools provide laptops (or other
devices) and adequate access to the internet so all students can access
the remote learning plan. Without a more robust remote learning plan
with clear direction that the BIE is responsible for ensuring access,
students with disabilities will be left behind even more than they
already have been.
Last, the BIE should be required to demonstrate transparency and
release publicly available information about how the BIE's CARES Act
funds and other subsequent funding streams have been spent to date and
how feedback from the April 20 and 28, 2020 tribal consultations and
listening sessions was considered in that process.
We appreciate the Subcommittee's interest in this issue. Thank you
for allowing me to speak with you today.
______
Questions Submitted for the Record to Therese Yanan, Native American
Disability Law Center
Questions Submitted by Rep. Grijalva
Question 1. Are BIE schools required under IDEA to provide eligible
students with special education services during the COVID-19 related
closures?
Answer. Yes, it is clear from the guidance provided by the U.S.
Department of Education and the BIE's own guidance it provided to its
schools that schools must comply with the IDEA and provide students
with services during school closures.
1a. To what extent did schools provide these services to eligible
students after BIE schools closed in the spring of 2020?
Answer. Based on our contact with families, schools consistently
failed to provide any special education or related services to students
when they closed in the spring. Some parents reported that they
received a call from a teacher to generally check in on how things were
going but schools were not providing coordinated or substantive
services or supports.
Question 2. You mentioned that the BIE is unable to meet the basic
educational needs of students with disabilities.
2a. Can you expand on the issues you have identified?
Answer. The BIE consistently fails to provide schools with
appropriate staff, supports & services, including assistive technology
and related services, such as speech, physical or occupational therapy
in order to meet the needs of students with disabilities. Many schools
under the BIE's supervision report an inability to provide related
services due to a lack of staff. The schools frequently fail to timely
identify and evaluate students who have suspected disabilities and fail
to timely develop and implement Individual Education Plans (IEPs), the
document that guides a student's educational program. The schools also
consistently fail to constructively address students' behavior that is
related to their disabilities, instead resorting to exclusionary
discipline practices that improperly remove students from school.
Additionally, the BIE lacks the infrastructure and consistent
practice across its schools to properly document what special education
and related services students are entitled to receive in their IEPs and
what the students actually receive. In some instances, this
inconsistent recordkeeping makes it virtually impossible to determine
what service, if any, a student is provided or entitled to in
compensatory education services. This critical issue was amplified in
the May 2020 GAO Report where it determined the BIE was unable to fully
account for the services students with disabilities were provided.
Structurally, one of the major difficulties facing students with
disabilities is the BIE's failure to finalize either regulations or
policies to consistently implement the IDEA. The IDEA was last
reauthorized in 2004. The BIE's procedures have been in ``draft'' form
since 2012. To date, there are no publicly available procedures on
which parents, or their advocates, can rely to ensure that students
with disabilities receive appropriate services as required by the IDEA.
One issue that the Law Center has addressed multiple times is the
complaint system provided by the IDEA. This complaint system is
intended to be a quick and easy way for parents to address concerns
about a school's failure to provide services consistent with an IEP.
The IDEA regulations require that a complaint be investigated and
addressed within 60 days. The Law Center has waited up to 6 to 9 months
for the BIE to address a complaint. At one point this issue was
``fixed,'' because the BIE had addressed internal contracting issues
that led to the delays but it has again became a problem with one
client waiting over 3 months for the BIE to begin investigating a
complaint. Since the BIE did not have clear procedures regarding
investigations, the offending school used Department of Interior
regulations to object to the investigation after the 60-day timeline
had passed, further delaying the BIE's ability to address the
complaint.
2b. Have GAO and/or IG reports mentioned or raised similar
concerns?
Answer. In May 2020, the Government Accountability Office issued a
report specifically on the BIE's provision of special education
services. In addition to interviews with relevant parties, the GAO
reviewed specific student files. The report documents that:
BIE Schools did not provide or did not account for 38
percent of special education and related service time.
BIE's limited monitoring and technical assistance hindered
its oversight and support for special education.
BIE cannot ensure that the schools it funds are meeting
their responsibilities under the IDEA.
In February 2018, the Department of Interior Office of Inspector
General issued a report on the BIE's use of background checks in its
schools. The OIG found that:
The BIE does not require completion of local law
enforcement checks.
Reinvestigations are not up to date and the backlog was
increasing.
Oversight responsibility for background checks at tribally
controlled schools was unclear.
The background check guidance and information system are
outdated & inadequate.
In May 2010, the Department of Education Office of Special
Education Programs (OSEP) sent a letter to the BIE documenting the
results of its Continuous Improvement and Focused Monitoring System to
verify compliance with the IDEA. The results of this process found
that:
BIE did not have a system to effectively monitor
educational results, functional outcomes for students with
disabilities or to ensure compliance with the IDEA.
BIE did not have a system to ensure correction of
identified areas of noncompliance in a timely manner. It
was:
-- Unable to review data to ensure issues have been
corrected;
-- Unable to determine the cause of noncompliance;
-- Unable to require a change in policies or procedures
that contributed to noncompliance.
In March 2007, the United States Department of Education Office of
Inspector General issued a final audit report on the results of its
audit of implementation of the IDEA. The OIG found that:
BIA was unable to demonstrate that it provided planned
special education services to 68 percent of students.
BIA was unable to adequately account for $111 million of
IDEA funds.
In addition to this history of the BIE's failure to properly serve
students with disabilities, provide required legal protections,
properly account for Federal funds, and take reasonable measures to
protect all students, the United States Department of Education Office
of Special Education Programs (OSEP) has had the BIE school system
designated as ``needs intervention'' for over 9 years. It is the only
school system in the country that has had this designation for such a
long period of time and indicates the BIE's ongoing failure to address
long identified issues that ensure that students with disabilities
receive services consistent with the IDEA.
Thank you again for the Subcommittee's interest in these important
issues. Please contact us at your convenience if we can provide any
further information.
______
Mr. Gallego. Thank you for your time.
And thank you for all the panel witnesses. I greatly
appreciate your testimony.
Reminding Members that Committee Rule 3(d) imposes a 5-
minute limit on questions, the Chairman will now recognize
Members for any questions they may wish to ask the witnesses.
I will start by recognizing myself for 5 minutes.
Chairman Garcia, my first question is: what was your
reaction to learning that BIE was not planning to testify at
today's hearing?
Mr. Garcia. Mr. Chairman, No. 1, I was really upset that
they failed, and I figured they had reasons why they did not
accept, and some of them I have already elicited, but some of
the panelists also have written or talked about the reasons why
they probably did not accept.
But it remains to be seen what happens after this.
Mr. Gallego. Right. In NCAI's view, does BIE's ``Return to
Learn'' Re-opening Plan adequately include local stakeholders
like tribal governments, school administrators, and parents in
the decision to fully re-open BIE-operated schools?
Was there proper consultation?
Mr. Garcia. I don't believe so, sir. I live in a community
that has in the local area about five different BIE schools.
The important part for me is that under BIE controlled and
operated schools, it is harder for the community to work with
the BIE staff and the BIE personnel.
For instance, the principals are hired by BIE. So, I think
they were under direct orders to not speak to the locals unless
instructed to do so.
Now, tribally controlled schools are a little bit
different. We have a lot better local control, and so our
planning with the local tribally controlled schools, ones that
we have and the one that I belong to, Santa Fe Indian School,
we have made all of those important things that we need to do
to ensure the safety of the students, including
telecommunications and all of that. But the BIE schools,
nothing like that that I have seen.
So, the communications efforts have been really, really
poor. I have spoken to a number of tribal leaders and educators
locally in the Pueblos and tribes, and that never really
happened with the BIE.
Mr. Gallego. Your testimony mentions the difficulty that
Navajo Nations face in its attempts to keep BIE-operated
schools out of trouble and it is closed for in-person learning.
What does BIE's unresponsiveness to the Nation's request signal
to you?
Mr. Garcia. Well, it signals that it is a bigger problem
than we feel because Navajo Nation, No. 1, is the biggest
Indian Nation in the country. So, if the BIE doesn't even
respond to the Navajo, how in the world do I expect them to and
people expect that they are going to talk to the tribal leaders
in the small communities like Taos Pueblo, like San Felipe, and
other schools in the Pueblo area if they are not even working
with the Navajo Nation?
So, I presume that the numbers that I have spoken to in
tribal leaders, that is the real case, that they are not
responding.
Mr. Gallego. OK. Let's switch to Ms. Parton. I apologize,
and my screen just went blank, of course. Give me 1 second.
Again, I apologize. You never rely on things going well when
you need them to.
Mr. Garcia. Sue Parton maybe?
Mr. Gallego. Yes. I apologize. I had to get my question up
right here.
Ms. Parton, the question I have for you is scrolling all
the way down to my questions, of course, and there it is.
To what extent do BIE schools have the supplies and staff
capacity to follow through on Federal recommendations for
taking protective measures against COVID, including sanitizing
school buildings, providing PPE, and enforcing social
distancing?
This is more of a followup to my opening testimony where in
part of the CARES Act we provided money for our BIE schools to
actually have this money, but it took 97 days to even
distribute it.
Ms. Parton. To my knowledge, the BIE has been offering
safety and sanitation courses online to all of the BIE-operated
schools. However, the union does not have any way to ensure
that they have available resources and policies in place for
opening up the schools.
Mr. Gallego. Thank you, Ms. Parton.
I yield my time back, and I recognize our Ranking Member,
Pete Stauber, for his 5 minutes.
Mr. Stauber. Thank you very much, Mr. Chairman.
Mr. Chair, I have a couple of things that are requests from
you. I had an issue with my internet.
Mr. Chair, I want to ask unanimous consent that I allow my
opening statement in writing to be sent to the Committee. I do
not want to have to go over it. Time is of the essence here.
Mr. Gallego. Without objection.
Mr. Stauber. And, Mr. Chair, I would like to enter into the
record a letter from the Navajo Nation asking for enactment of
S. 886 be included in the record please.
Mr. Gallego. Without objection.
[The information follows:]
THE NAVAJO NATION
Window Rock, Arizona
July 28, 2020
The Honorable Nancy Pelosi
Speaker of the House of Representatives
1326 Longworth House Office Building
Washington, DC 20515
The Honorable Kevin McCarthy
Republican Leader
H-204, the Capitol
Washington, DC 20515
Dear Speaker Pelosi and Leader McCarthy:
We respectfully request that you schedule a vote on final passage
of S. 886, the Navajo Utah Water Rights Settlement Act (NUWRSA), before
the House leaves for the August recess. As discussed and explained in
our June 22, 2020 letter to the House, nearly 40 percent of the Navajo
Nation lacks running water or adequate sanitation in their homes. To
make matters worse, the Navajo Nation's COVID-19 infection rate on a
per capita basis is one of the highest in the country and the Navajo
Nation has more COVID-19 deaths than many states. The House has an
opportunity to take immediate action to mitigate future COVID-19
outbreaks and address the drinking water crisis on the Navajo
Reservation by passing S. 886. Although the Senate unanimously passed
S. 886, the House of Representatives has so not acted on it, further
delaying the relief that it will ultimately bring to the Navajo people.
The Navajo Nation has over 300,000 enrolled members and is the
largest Indian reservation spanning portions of Arizona, New Mexico,
and Utah. The conditions on Navajo are dire and the pandemic only
compounds our needs. With so few watering points across the Navajo
Nation, families must travel hours to reach these points and must
ration their water accordingly. Without access to clean drinking water,
the Navajo Nation will continue to struggle, and its members will be
more susceptible to deadly illnesses such as COVID-19.
S. 886 would provide the means to begin to address these critical
needs. Through NUWRSA, the Navajo Nation would receive approximately
$220 million in federal and state funding for desperately needed
drinking water infrastructure on the Reservation in exchange for the
Nation waiving its water-related claims against the United States and
State of Utah. In 2016, Congress first introduced the settlement
legislation and on June 4, 2020, the Senate unanimously passed S. 886,
demonstrating the broad bi-partisan support for the legislation.
The Navajo Nation recognizes that there is more to be done for
Indian Country and we stand ready to assist you on this work, but S.
886 is ready for final passage. The House's inaction on S. 886 or
sending it back to the Senate for further consideration will only delay
addressing the basic human needs of the Navajo people. Therefore, we
respectfully request that you schedule a vote on final passage of S.
886 before the House recesses in August.
Sincerely,
Jonathan Nez, President Myron Lizer, Vice President
______
Mr. Stauber. Thank you, Mr. Chair.
Mr. Garcia, thank you for offering your expertise today on
Native issues. From your testimony, it is clear you are a
valued voice by Indian Country nationwide and by the Trump
administration in your capacity as Co-Chair of the Interior's
Tribal Budget Formulation Committee.
I, therefore, look forward to learning on your experience
on this Subcommittee.
However, experts on the subject matter of educating
children, the American Academy of Pediatrics, states, and I
quote, ``The AAP strongly advocates that all policy
considerations for the coming school year should start with a
goal of having students physically present in school.''
Would you agree with the experts, in this case the American
Academy of Pediatrics, saying that children need to be in
school to optimize social and emotional learning and work to
close achievement gaps?
Mr. Garcia. Yes, sir. That is a dual-pointed issue, I
think. I come from a rich culture in the Pueblo country in
Ohkay Owingeh, and so I think it is important that I didn't
learn all of the things that I knew about social life and
culture and language and all of that in an education setting. I
learned at home. I learned in the community.
But the other part of it is that if we are going to be part
of the United States of America, then we also should learn the
educational system of the dominant society, if you will.
And how true that statement is, yes, that's where you learn
face to face, but, sir, I must say the online statement to that
would be in a safe environment.
If the climate is not safe by virtue of the COVID in
existence, they have to assure--the people that are running the
schools, have to give assurance that the places are safe and
well-kept and that the resources are available and that right
policies and perspectives are put in place so that our children
will not suffer, will not be infected, not only the children,
but their families and students and personnel.
Mr. Stauber. Thank you, Mr. Garcia.
And do you foresee your support for in-person learning
before a vaccine or before we as a nation get through the
virus?
Do you foresee support for in-person learning?
Mr. Garcia. Oh, yes, there is a lot of support for in-
person learning. In fact, one of our panelists talked about
those students that are especially in need of mental and
behavior health needs. That is how you are going to provide it
by being face-to-face.
And to tell you, you know how much of a hampering that has
happened to some of the schools now, the BIE schools in
particular, they do not have the resources to go online, and
then No. 2 is that the communities are not well equipped
technically to be able to accept that kind of service.
The tribally controlled schools are a little bit different
because we are able to ensure that those students are provided
with what they are needed to be provided.
Thank you.
Mr. Stauber. Mr. Garcia, I just want to follow up.
Mr. Chair, how much time do I have?
Mr. Gallego. You have 45 seconds, but don't worry if you
need more time.
Mr. Stauber. I just want to ask Mr. Garcia one more.
Mr. Garcia, when discussing the NBC's coverage of the
``Dear Tribal'' letter from Assistant Secretary Sweeney, you
stated that the NBC article omitted a sentence reading, ``Local
decisions will be made in coordination with tribes, states, and
local public health officials.''
And furthermore, your testimony says that these local
decisions are ``closer to where NCAI wants them to be.''
In your opinion, Mr. Garcia, why do you think NBC News took
that line from Assistant Secretary Sweeney out of context and
omitted the part where she clearly stated that they will make
local decisions in coordination with local officials?
Mr. Garcia. I can only assume, but the fact remains that
what was the action in the BIE actions after the fact, and the
truth is that they did not contact local tribal leaders.
I have taken the liberty to contact tribal leaders locally
here in New Mexico, and in fact, a couple of schools in
Arizona, and as I said, there was no response from BIE at any
level, and so for whatever reason. But I can only assume why
they did not do it.
Thank you.
Mr. Stauber. Thank you, Mr. Garcia, for your expert
testimony. I appreciate you and all the witnesses here today.
I yield back, Mr. Chair.
Mr. Gallego. Thank you, Representative Stauber, and you,
Mr. Garcia.
Let me now move to--and I probably should make sure I have
the right list. Now let me recognize Representative Haaland for
5 minutes.
Ms. Haaland. Thank you so much, Chairman.
And thank you to all the witnesses for being here. I am
very, very grateful for that and for this hearing.
Ms. Parton, I will start with you. In your testimony, you
mentioned that the Bureau of Indian Affairs censured you for
sending out an e-mail to your bargaining unit since the Bureau
of Indian Education would not issue your employees guidance,
even after other state governors shut down their schools in
their states.
How did the BIA censure you or prevent you from finding
this information?
And do you feel that it was a safety concern?
Ms. Parton. Well, what we were hearing was very, very
disheartening to me. Our employees were scared, and they were
not getting messaging or they were getting mixed messaging.
They were getting guidelines from the Federal Government, and
as Federal employees, they felt compelled to follow the
guidelines of the Federal Government.
But then they would get a different set of guidelines from
the state governor wherever their school was located, and quite
often they would get other guidance from the tribal leaders if
they were located on or near a reservation.
So, they started calling the union saying, ``What do we do?
Who do we follow? State schools are doing this right down the
road from where we are, but we are still in classes or we are
still having to work.''
I was hearing all of this, and I just felt compelled to
reach out to the members and tell them, ``Look. We don't know.
We are getting the same mixed messages, but I want to assure
you that your union is advocating for you and fighting on your
behalf to try and come up with some answers. So, this is what
you can do to help us at this point.''
And then about a week later, I received a letter of censure
from the Office of Human Capital.
Ms. Haaland. Thank you for that answer.
And then one quick question. Since only 65 percent of
tribal lands have broadband networks available, how did the
lack of internet services impact the BIE employees that you
work with during the shutdown?
Ms. Parton. It impacted them very much because a lot of
times they were told to telework. This was after they did their
14 days of safety and wellness leave. They were told to
telework, but a lot of them did not have equipment. If they got
equipment, they did not have internet access. They did not have
broadband availability.
A lot of the Pueblos, as I know you are aware, are located
in really remote places and sometimes in places where there are
mountains, so there is no signal. They were afraid that they
were going to be disciplined because they could not meet the
tasks that were being given to them to do remotely as a part of
their telework.
Ms. Haaland. Thank you
My next question is for Mr. Garcia, and it is very nice to
see you, Mr. Garcia.
The Federal Communications Commission found that only 65
percent of tribal lands have broadband networks and are the
most digitally disconnected lands in the United States.
However, the Interior school re-opening letter stated it will
provide, and this I quote, ``wireless access in each school
like hot spots.''
If tribes do not have access to wireless networks over a
majority of their lands, how does the Interior's technology
platform contradict itself?
And is it an issue that the BIE should have solved years
ago so that Native students can have the same educations as
their state school peers?
Mr. Garcia. Yes, Ms. Haaland. As you know, I have been one
of the pushers of telecommunications and broadband for many,
many, many years. I serve on the SEC Tribal Leader Task Force,
and that 65 percent is even a high number compared to reality.
And if you think about hot spots, hot spots work especially
if they are using Verizon. That assumes that you have
communications for cell phone service, and many of the remote
areas in Indian Country don't even have that.
So, it is an assumption about what they can provide, but
the important part of it is that those that are near
metropolitan areas can actually go out and provide the
services, if the BIE was prepared to go to virtual learning or
could provide services or communications or any of that stuff.
But I have been harping on the BIE for over 10 years that
they need to invest in it, and so just recently it is happening
at the Tribal Interior budget sessions, but we are really far
behind already.
I can give kudos to the tribally controlled schools like
the Santa Fe Indian School. We were on top of the game.
When they shut down and we shut down the school, we were
already prepared to provide communications, and we did what was
necessary at the local level for the tribal level as well as
for the school to provide long-distance learning communications
and what not, but the BIE has not done so. I am sorry.
Ms. Haaland. Thank you, Mr. Garcia.
Chairman, I yield back.
Mr. Gallego. Thank you, Chairman Haaland.
Ranking Member Stauber, do you have any Members of the
Minority that are interested in questions?
Mr. Stauber. At this time, Mr. Chair, I don't believe I do.
Mr. Gallego. OK. Just make us aware and get my attention if
someone should pop in. We want to make sure we obviously get
them in the queue.
Next I would like to recognize Representative Ed Case from
the great state of Hawaii.
Representative Case is not available, so we will move on to
Representative Cartwright from the great state of Pennsylvania.
Mr. Cartwright. Thank you, Mr. Chairman.
Can you hear me?
Mr. Gallego. Representative Cartwright, I can.
Mr. Cartwright. All right. Good.
My first question is for the Honorable Joe Garcia.
Mr. Garcia, tribal consultation is a critical aspect of the
Federal trust responsibility, but in your written testimony,
you stated there is no evidence that the Interior Department or
BIE officials have deferred to positions that tribal leaders
have expressed to them in crafting their school re-opening
plan.
Is that what you said? And could you please expand on that
statement?
Mr. Garcia. OK. Thank you for the question.
There are two aspects of that. The first one that you
referred to is the Navajo Nation. The Bureau has not really
talked with the Navajo Nation president in terms of what their
plans are.
And in fact, the president has said the Navajo Nation
facilities, BIE facilities will not open if the places are not
safe, if the students cannot be safe, and so the BIE cannot be
trusted to provide a safe environment for our children in the
learning environment.
That is one outlier, you might say. The other one is the
example in Taos Pueblo. In Taos Pueblo up north from where I
live, they bent over backwards in order to get information from
the Bureau at the Assistant Secretary level as well as at the
Secretary level of DOI to get clarification of what it is that
they are going to do.
And what they were told is that the BIE is planning to open
that school because it is not a tribally controlled school. It
is a BIE controlled school, so the principal and all personnel
are BIE employees.
So, they are under direction to re-open that school, and I
will quote permission granted by the War Chief of Taos Pueblo.
He said they told him that you can re-open the school if you do
not listen to what we have to say because we have passed laws
at Taos Pueblo that there are no outside people coming in, that
you need to condone to our laws, and that means that the
schools will not be open either.
So, you can open the school if you like, but you will have
no students. And the reason they said that is there is also a
public school in Taos, and the War Chief said all of our
students will be disenrolled from BIE schools and they will be
transferred to the public schools, and they are under virtual
learning at the Taos public schools.
So, those are two extremes, sir. I hope that answers your
question.
Mr. Cartwright. It does. Thank you.
And, Mr. Garcia, you also mention in your written testimony
that prior to the pandemic, the Department of the Interior
identified $629 million in deferred maintenance for BIE-funded
education facilities and $86 million in deferred maintenance
for BIE educational quarters.
It is no secret that infrastructure problems like poor
ventilation and overcrowding can contribute to the spread of
COVID-19, but despite the prevalence of these problems
throughout BIE schools, the BIE is proceeding with an
aggressive Re-opening Plan.
In your opinion, did the BIE sufficiently take into account
the potentially harmful effects of a school's aging physical
infrastructure when it issued its final Re-opening Plan?
Mr. Garcia. I would say, no, they did not. It was more of,
I guess, a directive that they open the school rather than the
safety and the well-being of the students that were to attend.
But that is not COVID-related per se. It is related to the
backlog of the conditions of the facilities from years and
years and years of neglect.
Mr. Cartwright. Correct. And let me ask you this. Were the
tribes consulted on this matter?
Mr. Garcia. No, sir.
Mr. Cartwright. I yield back, Mr. Chairman.
Mr. Garcia. Thank you.
Mr. Gallego. Thank you, Representative Cartwright.
I now recognize the great Chairman from Arizona,
Congressman Grijalva.
Mr. Grijalva. Thank you.
Thank you, Mr. Chairman, and thank you for the hearing and
the really good panel that the Committee has put together. And
I think the questions from my colleagues are to the point and
have dealt with a lot of substance.
Two things that are noticeable. This deadline of September
16 is still active for BIE schools, that and Defense Department
schools. It is kind of interesting that the only schools that
the Federal Government truly controls are those BIE schools and
Defense schools that happen to be on military bases, and those
are being urged to do, and pushed in the direction to do,
person-to-person, while the rest of the country roils in this
debate upon what is safe, when is the time, what are the
resources we are going to have in order to open our public
schools.
And yet, to some extent, this is a second class status
given to the 42,000 Native students that utilize BIE and
tribally controlled schools on the rez and to treat them in a
different matter, forsaking the trust responsibilities,
circumventing it or doing something perfunctory, and the
pandemic and the consequences.
We all know, and you stated it before, Mr. Chairman, that
the hardest hit, the most impactful in terms of infection and
mortality per capita has been in Indian Country and yet we are
being asked to rush this.
I have just a couple of questions. Let me start with the
Honorable Joe Garcia.
Mr. Chairman, in your written testimony, you wrote that you
believe the Department of the Interior took the action to re-
open schools out of a desire to please the President, if not in
response to direct pressure from the White House.
What makes you come to that opinion, if you wouldn't mind
elaborating, sir?
Mr. Garcia. Mr. Chairman, was that for me, Joe Garcia?
Mr. Grijalva. Yes.
Mr. Garcia. I come to those conclusions because that is
what is being pushed in the nation, opening of schools whether
the safety is there or not.
And I want to ensure that at least in New Mexico we will
listen to the governor of the state of New Mexico in the
closures of schools and the opening of facilities, including
educational facilities and what not.
We were consulted. We worked together, but that does not
happen with the BIE. This is being pushed at the higher levels,
higher than just the BIE, which means then the DOI part of it.
That is the message that I get, and a lot of other tribal
leaders have told me the same thing, that BIE is only acting on
instructions and directives given from higher up.
Mr. Grijalva. Thank you so much.
Mr. Superintendent, if I may, Mr. Witte, the release of the
BIE guidelines, the timing of that, how did that affect your
school's planning and procedures? And, thus far, the
coronavirus pandemic, how has that affected your students, in
particular, and the staff that works for those students, if you
wouldn't mind touching on those two questions?
Mr. Witte. Thank you, Mr. Chairman.
We had plans in place long before we received the BIE
guidelines based on conversations with tribal officials from
the state of South Dakota and the other plans for public
schools in the surrounding area because some of our schools are
off the reservation of those schools.
So, when we received those guidelines, we received them
late. The Tribal Council had already determined what our re-
entry plan would be, which we are currently in as Phase 1.
We are about 97 percent online. We do see the kids 1 hour a
week, touch base with them. We took a very aggressive move to
put in a 2.5 gigahertz, a Spectrum broadband initiative to get
our families wi-fi.
So, the issue that I alluded to was the delay in the
funding being brought to us, which delayed us getting that
broadband piece put together. We are still installing routers
as I speak, and the 3 weeks of extra time would have done us a
lot of good.
Mr. Grijalva. Thank you.
And, Mr. Chairman and Ms. Parton, I think the saddest
commentary, saddest in the sense that I think BIA and Interior,
in general, keep making the case, especially BIA, for their
ineffectiveness, to say the least, and to allowing some of its
functions to be so politicized that it cannot truly represent
the trust responsibility and the obligations that we have to
Indian Country in this nation.
And that hurts this Committee's work, and it certainly is
affecting tribes as we heard today and the 6,000 kids with
special education needs that are by the wayside even more so.
That is a very sad commentary on the work being done at
this point, and I want to thank you for highlighting that and I
look forward to any followup that you might suggest, Mr.
Chairman.
Thank you again. I yield back.
Mr. Gallego. Thank you, Chairman Grijalva.
I just want to check in with Ranking Member Stauber.
Are we OK? Did anyone else jump on?
Mr. Stauber. Mr. Chair, I don't think any other Member has
jumped on, so I send it back to you.
Thank you.
Mr. Gallego. Not a problem.
OK. Now we move on to Representative Soto for 5 minutes.
Mr. Soto. Thank you, Mr. Chairman.
I wanted to make sure, as I had to go in and out with other
committee assignments, that I gave each of the witnesses a
little extra time to answer questions that they may not have
gotten to. We will start with Mr. Garcia.
If there were one or two things you could say to the Bureau
of Indian Affairs today about what you would like them to do
going forward, what would they be with regard to school
openings?
Mr. Garcia. No. 1 is--please give us assurance that the
facilities are safe, that the plans are in place. Show me what
the plan is. Show us what the plans are. Show us that you have
communicated with the local governing bodies, the tribal
leaders, the school boards and others that are related and
acquainted with the school system locally.
And, as well, show us how you work with the state that
those facilities are in, so it is a three-prong approach, not
just a BIE controlling.
But I have yet to see a document, sir, that dictates or
that shows me that I would have confidence in having one of my
students attend a BIE facility, and just like Taos Pueblo, if
they were not ready, if they are not safe, my student is not
attending any one of those schools and neither are our
community's students.
So, that is the bottom line. They have to show us. They
have to really show us that they are ready to re-open, and they
have not shown that, nothing.
Mr. Soto. Thank you, Mr. Garcia.
Ms. Parton, what advice would you give to BIA about re-
opening and how we can improve, if you would be able to give
them one or two points if they were here today?
Ms. Parton. I think I would tell them that, just like Mr.
Garcia said, we need assurances that our workplaces are safe.
As educators, we really care about the education of our
students. We know how it is important to advance the Native
American society.
My father was a BIA teacher back in the 1950s in a boarding
school in South Dakota and then later in a boarding school near
Gallup, New Mexico, so I have lived around Native education my
whole life.
And I would tell them that we really need assurances that
our people are going to be safe, our employees, our students,
their families and our Native communities. It is just not
happening. It is like this is being pushed on everybody.
The employees know that as Federal employees they have to
do what they are directed to do, but they are very worried.
They are very concerned and do not want to spread it to their
families or people in the communities where they live.
Mr. Soto. Thank you, Ms. Parton.
Mr. Witte, what would you say to BIA if they were here
today about one or two points you would like to see them
improve upon?
Mr. Witte. I think there are two things that could be
improved upon drastically. One is the communication in a timely
manner. It seems like things are always coming out past the
time where we have to make decisions.
And another important issue would be the distribution of
funds. We were excited to hear that we got the money for maybe
doing some things to better prepare ourselves--because in the
spring of the year when we had to close our school, we were not
in a very good position to deliver education.
And as we tried to make those decisions through the summer
to implement change and receiving the funding at the end of
June did not allow us very much time to prepare for the start
of the school year.
Mr. Soto. Mr. Chairman, may I inquire how much time I have
left? I can't see the clock.
Mr. Gallego. Representative Soto, you have and I actually
lost track of the time also. Go ahead with your question, and
we are going to do a second round, too, if you have lost time.
Mr. Soto. OK. My second and final question is on rural
broadband. I know this is a concern both in my district in
central Florida, which is both urban, suburban, and very rural,
and I know our tribes run the gamut from being more urban like
in south Florida in our state to very rural.
So, it would be great to get a brief state of how you all
are faring with rural broadband or with broadband generally to
be able to do some distance learning should you have to.
We will start with Mr. Garcia.
Mr. Garcia. The question, I will give you two examples.
One is that the Northern Pueblos of New Mexico, when the
ARRA stimulus packages came out back in 2010, put an effort out
as five tribes that became partners in a coalition to improve
the broadband systems here, internet systems if you will, here
in northern New Mexico.
We were successful. We got the funding, and we put a system
in place. So, broadband is not a big issue for at least the
northern part of New Mexico.
We are OK. We are faring well. Some of the schools that
have hard times are in southern New Mexico.
But the biggest example that I give you that is a negative
side are the rural parts of Arizona and the rural parts of New
Mexico or the remote parts of those two states. That is where
the Navajo Nation is.
That is where a lot of the BIE schools are. So, if the
infrastructure is non-existent, you can do all you want in this
facility, which is not going to do any good if you can't get
the information to the community, to the students who live
outside the facility.
So, that is still a dilemma, and it is not going to be a
quick fix. It is going to take a lot of timing, a lot of effort
to ensure that it is done properly so that the----
Mr. Gallego. Thank you, Mr. Garcia.
Mr. Garcia. Thank you.
Mr. Gallego. Representative Soto, we are going to do a
second round. So, if you want to hold your questions on that
second round so that we can respect the time of everybody on
here, I would greatly appreciate it.
Mr. Stauber. I will do that, Mr. Chair. Fine.
Mr. Gallego. Oh, no, I am sorry, Representative Stauber. I
was talking to Representative Soto.
Mr. Stauber. Oh, OK.
Mr. Gallego. Yes.
Mr. Stauber. Mr. Chair, it is up to you, but I would yield
to Representative Soto time if he needs it.
Mr. Gallego. OK. Let's do that then. That is fine. Let's
finish up the rounds of questions.
Go ahead, Representative Soto. Continue.
Mr. Soto. Thank you, Mr. Stauber. I thank the gentleman
from Minnesota.
And I am just going to continue on with the question that I
think both Republicans and Democrats care about here, which is
the rural broadband access.
Ms. Parton, if you would go next. It would be great to hear
the state of broadband in your area as well.
Ms. Parton. OK. When you say in my area, we represent the
employees at 55 Bureau-operated schools in 10 different states,
so it varies from state to state.
We have four off-reservation boarding schools that are kind
of located near urban areas that really I think do not have the
broadband access.
But then we have the rural schools, like Mr. Garcia said,
in New Mexico and Arizona, the real remote locations that are
really struggling.
The same way with the schools that we represent that are
located in South Dakota and North Dakota. We find that they are
really struggling with distance learning even though they are
feeling that that is the way that they would like to go because
it is safer at this time, but it has been difficult to ensure
that they have operational abilities to do distance learning
just because of the remoteness.
I also am a part of the Rural Task Force Committee with the
American Federation of Teachers, and this is something that we
discuss quite often to represent broadband access in rural
America.
Mr. Soto. Thanks.
Mr. Witte, your response on the state of broadband.
Mr. Witte. It is a real challenge in rural South Dakota. In
Lower Brule, we struggled with this as well.
We did secure the 2.5 gigahertz Spectrum broadband through
the FCC, and we are currently installing routers in our homes,
as I speak. So, we have probably about a third of our community
connected at this point, and we have about two-thirds
remaining.
Eventually, I believe the tribe will be able to connect,
but it is a challenge, and it is something that I think we will
have remedied hopefully in the future.
For us, we did not have a one-to-one program going into the
spring. So, this is kind of new for our students to have those
laptops and devices at home, too.
Mr. Soto. Thank you. I yield back to Mr. Stauber.
Mr. Stauber. Mr. Chair?
Mr. Gallego. Yes.
Mr. Stauber. May I ask a question? OK. Thank you very much,
Mr. Chair.
I have a couple in my second round of questions. This is
for Ms. Parton.
Thank you for participating today. As a pro-labor
Republican in the public sector and a union member myself, I
always seek dialogue with the brothers and sisters in labor.
As you may know, Minnesota has some of the highest Native
populations of any state in the Union. Minnesota sadly has some
of the nation's worst educational achievement gaps, according
to the Federal Reserve Bank of Minneapolis.
According to a McKinsey study, COVID-related shutdowns of
schools will only further exasperate these existing achievement
gaps between white and minority students.
Articles and studies agree with this. The closure of
schools disproportionately affects low-income and minority
students.
Therefore, Ms. Parton, do you agree that to close these
achievement gaps, we need students in schools so our Native
children are not left behind?
Ms. Parton. Yes, sir, I do agree with that, but not at the
expense of the health and well-being of the students and the
employees.
I also am a very big believer in basic skills. That is the
whole foundation of a lot of the reasons why Native students
fall behind, and I think that is what the focus should be on
during this difficult time in our society today.
Mr. Stauber. Thank you, Ms. Parton.
Ms. Yanan, if you are unaware, my wife Jodie and I are
blessed to have a son with Down's Syndrome, and I am fortunate
to have firsthand knowledge of the issues as well. We have sat
in on many IEP meetings with our child at Duluth Dansol High
School.
Therefore, thank you for your advocacy on a topic so near
and dear to my heart.
However, I could not imagine the difficulties of managing
my son's IEP during COVID. We do not have the training of the
crucial staff helping with the IEP.
These cannot be done over Zoom or over the phone. We need
these students in the classrooms to get the individualized
attention they need.
We also know this is happening in Indian Country. In my
district, the Nay Ah Shing School controlled by the Mille Lacs
Band told me firsthand that individualized delivery of special
education services suffered further under COVID-19.
Therefore, Ms. Yanan, do you agree with the BIE at least
that our Native students with IEPs should not be denied the
attention they need, just like my son received the attention he
received?
Ms. Yanan. Thank you, Congressman.
I do agree that students with disabilities need
individualized attention. I think that the services are so
individualized that it needs to be an individualized
determination that includes the parents.
And I think that is where the Bureau is failing to properly
communicate and consult with parents and families about the
services for their children.
As you know from your own experience, the IEP team works
best where there is true partnership between the school staff
and parents. When schools are not communicating effectively
with parents, the students lose out.
Mr. Stauber. I agree with you. IEPs have to be mutually and
collectively designed with the parents in mind because, as you
know, the parents are the biggest advocates for the children.
So, I appreciate that.
My last question is for Mr. Witte.
Mr. Witte, thank you for bringing a firsthand perspective
to the Committee today that the Nay Ah Shing School, operated
by the Mille Lacs, has increased transportation needs and is
now driving out to deliver much needed school meals.
These crucial and important measures unfortunately put
further strain on the banned budget. Therefore, it is helpful
that students can use their hybrid models to at least get into
the physical classroom a few days a week, lowering the strain
on transportation budgets.
Would your students being physically in schools, at least
at the beginning, be helpful in easing these costs?
Mr. Witte. We have been feeding our students from the
beginning of the virus primarily with the USDA SAC lunch type
program. We deliver those meals to the homes and suburbans.
Roughly about 20 square miles is our transportation need.
There are some increased costs. It may be a little bit of
an advantage as far as cost factor, but for the safety of our
children, our local tribe has decided to go with our hybrid
model, which can allude to your special education question.
We are bringing our special needs students in for the time
that is in their IEPs, so it has been modified for one-to-one
instructions. We are bringing every student in for 1 hour a
week minimal to work with them.
So, we have a hybrid approach.
Mr. Stauber. And the hybrid approach, as far as delivering
of the meals, is easing that cost on the budget, correct?
Mr. Witte. Yes. We can compensate some of those meals as
they come in for those meeting times.
Mr. Stauber. Yes. Thank you all very much. Your testimony
was important for us to hear.
I yield back to you, Mr. Chair.
Mr. Gallego. Thank you, Representative Stauber, for your
questions.
And since there are no other Members of the Minority,
should you come up with a question in the process of this
second round, please just give me a heads up so I can recognize
you.
I have a question for Director Yanan.
You previously called on BIE to provide schools and parents
with more comprehensive guidance on schools' responsibilities
to write special education and related services during the
pandemic. To date, has BIE done so, so far?
Ms. Yanan. Thank you, Mr. Chairman.
What we are hearing from parents is that in some cases some
schools have started trying to have meetings and trying to
start having the discussion regarding providing compensatory
services for the springtime when services stopped, but we have
only heard from one family that has actually started receiving
those compensatory services.
The major issue we are hearing from families is the lack of
communication. We have one family that reported receiving a
text at 7:58 in the morning directing her son to get on a Zoom
call with his class that morning, and she didn't have the
technology and the platform ready on any sort of device.
So, the lack of preparation and the lack of communication
with families is a serious issue.
Mr. Gallego. And has Director Tony Dearman or any other BIE
or BIA officials reached out to your organization to respond to
your concerns and parents' concerns?
Ms. Yanan. No, but frankly, Mr. Chairman, I have been
trying to address these issues with the Bureau for over 25
years, and I have never gotten response from the Bureau about
addressing problems or creating solutions. So, their lack of
response didn't necessarily surprise me.
Mr. Gallego. Well, I would hope that they would have some
urgency right now. Thank you, Ms. Yanan.
I would now like to move on to Representative Haaland if
you have a second round of questions.
Ms. Haaland. Thank you, Chairman. Thank you very much.
Yes, I will go to Mr. Witte please.
Mr. Witte, the BIA's ``Return to Learn'' guidance focuses
on returning to the physical classroom. How feasible is it to
re-open schools in your community on September 16?
Are you hearing concerns from school leaders, educators,
tribes, parents, or community members regarding the re-opening?
Mr. Witte. As a tribal grant school, we re-opened this
week, Tuesday, September 8. So, our timeline is a little
different.
So far, we have re-opened in the hybrid model, which I
described earlier, where we are going to be bringing students
in an hour a week. Other than that there will be distance
learning.
It is going fairly well, but the biggest hurdle that we
have is the broadband issue, so we are hoping to get that
remedied here soon.
But as far as the spread in South Dakota, as I said in my
testimony, it is increasing dramatically over the last couple
of weeks. Our tribal officials don't feel like it is safe to
bring kids in in large groups at this time.
Ms. Haaland. So, would you say that the biggest concern you
have at this point is the broadband internet service or is it
the coronavirus itself?
Mr. Witte. Well, I think both of those are large concerns
because if it wasn't for the coronavirus, we would have the
kids in person.
Because of that fact, we are relying on broadband internet
service, so they are kind of hand in hand. I think one leads to
the other.
Ms. Haaland. Thank you so much.
My next question will be for Ms. Yanan.
In your testimony, you note that students are re-entering
the classroom this fall after a long break from studies during
which many have cared for and lost family and friends,
contributing to mental health needs.
The BIA has indicated that the Bureau intends to reserve $8
million for direct mental and behavioral health support for BIE
funded schools from CARES Act funds.
Has the BIE shared any details regarding their plans for
this funding?
Ms. Yanan. Not to my knowledge. From what we are hearing
from families and from what we have been able to find from
publicly available documents, the ``Return to Learn'' plan has
a section on mental and behavioral health, but there is very
little detail.
And what we are hearing from families is there has been no
contact with them regarding these issues.
Ms. Haaland. Thank you.
And based off the Interior's decision to re-open in-person
learning as soon as possible and oversight of basic COVID
issues impacting Native students, do you think there is a
general disconnect between the Interior and what is actually
happening in tribal communities?
Ms. Yanan. Yes. I think that, again, the lack of
communication, the lack of input from parents, we have heard
from some parents that neither their schools nor the Bureau
asked for any input or asked them how they felt about re-
opening.
And then because any information is just on the website,
the school website and Bureau website, a lot of parents just
don't know what is happening. They don't know what to
anticipate for the upcoming school year, and they don't know
how their children are going to be educated.
Ms. Haaland. Thank you so much for that answer.
Chairman, I will yield back my time.
Mr. Gallego. Thank you, Representative Haaland.
And I believe we do not have any other questions. I am just
going to double check to make sure. I am going to scroll
through right now. If anyone has a question, please give me a
wave.
Representative Soto, are you OK? Excellent.
Ranking Member Stauber, are you OK?
Mr. Stauber. Yes, I am. Thank you, Mr. Chairman, for
holding this important hearing. I appreciate it.
Mr. Gallego. Thank you, Mr. Stauber, for also attending. I
thank the other Committee members as well as the witnesses. I
would like to thank you for your insightful testimony and the
Members for their questions.
As stated before, the members of the Committee may have
some additional questions for the witnesses, and we will ask
you to respond to these in writing.
Under Committee Rule 3(o), members of the Committee must
submit witness questions within 3 business days following the
hearing, and the hearing record will be held open for 10
business days for these responses.
If there is no further business, without objection, the
Committee stands adjourned. Thank you all.
[Whereupon, at 4:33 p.m., the Subcommittee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Statement for the Record
Bureau of Indian Education
U.S. Department of the Interior
Thank you for the opportunity to provide a statement on behalf of
the Department of the Interior (Department) regarding the Bureau of
Indian Education's (BIE) reopening guidance for the 2020-2021 school
year. The BIE's Return to Learn! plan provides BIE leaders and school
personnel with guidance on reopening criteria that follows current
Centers for Disease Control and Prevention (CDC) recommendations,
provides flexibility for local conditions, and makes recommendations on
distance learning platforms. The Return to Learn! plan, as well as
other reopening guidance and resources, can be found on the BIE website
at bie.edu and on the reopening webpage at https://
returntolearn.bie.edu/.
The Department appreciates the opportunity to provide this
statement.
______
Return to Learn!
BIE REOPENING PLAN
2020-2021 SCHOOL YEAR
[GRAPHIC] [TIFF OMITTED] T1453.001
.epsFull Report available at:
returntolearn.bie.edu/sites/default/files/2020-08/Return-To-Learn-
Plan.pdf
______
Submission for the Record by Rep. Stauber
Statement for the Record
The Mille Lacs Band of Ojibwe Indians
by
Chief Executive Melanie Benjamin
Mr. Chairman and honorable members of the Subcommittee, I am
pleased to provide this statement on behalf of the Mille Lacs Band of
Ojibwe regarding the reopening of our tribal schools during the COVID-
19 pandemic.
Our BIE-funded tribal schools include Abinoojiyaag (K-5) and Nay Ah
Shing (6-12), which are located in District I of our reservation near
Mille Lacs Lake, and the Pine Grove Leadership Academy in District III,
which is east of Hinckley, Minnesota, and about 80 miles from District
I. Collectively, these three schools are referred to as ``Nay Ah Shing
School System'', or NASS. We are a small school system and service
about a third of the reservation school-age population. Our schools
have a focus on Ojibwe language and culture, which is what keeps our
students wanting to attend NASS. Language programs are presently funded
by the Band. We also have a two-year BIE grant to support native
language development.
Planning for this 2020-2021 school year has been exceptionally
challenging during the COVID-19 pandemic, and the safety of our
students, staff and community has been paramount. On our reservation so
far, 15 Band Members have tested positive for COVID-19 that the Band is
aware of, and three Band Members have passed away due to COVID-19.
However, our health staff have reason to believe there are
significantly more cases of COVID-19 in our community that have gone
untested.
In our Anishinaabe communities, our households are often multi-
generational, with children and grandchildren living with elders. When
a child is exposed to COVID-19, our elders who are in high-risk groups
are in grave danger.
With these concerns in the forefront, our education staff have
spent the majority of the summer planning for our 2020-2021 Academic
year. Our first day of classes will be September 16th, and
we will be offering two models--a Hybrid option that combines in-person
learning at school with Distance/Remote learning from home and a 100%
Remote/Distance Learning option. Currently, 51 families have opted for
the Hybrid learning option and 23 families have opted for Remote/
Distance learning. However, our student count is at 183 and, as of
today, many families remain undecided about which option they prefer.
These families are likely to make their decision at our Open House
scheduled for Friday, September 11.
The Band received a BIE Cares Grant for our schools based on
student enrollment. These funds are being used to make the building and
classrooms safe. Our schools have been provided with and fitted for
sensor thermometers, glass partitions, water fountain and bathroom
updates and planning for social distancing on buses.
NASS staff have also devoted significant time over the summer
developing a plan for 100% Distance Learning should the school need to
close due to a COVID-19 outbreak.
BIE Guidance:
With the topic of examining guidance provided by the BIE to tribes
in reopening during a pandemic, generally speaking, we have received
outstanding support from BIE staff and officials in developing our
reopening plan and have an excellent working relationship with the BIE.
Regarding BIE guidance provided, we understand there to have been two
primary communications, or guidance, provided to tribes. On August 6,
Assistant Secretary Tara Sweeney signed a ``Dear Tribal Leader Letter''
on the topic of BIE school reopening which was sent to me as Chief
Executive. Within this letter, Assistant Secretary Sweeney announced
that all BIE-controlled schools would open for school on September 16
for in-person learning at brick-and-mortar school sites. However, she
added that that tribally-controlled BIE Schools would not be required
to follow this guidance, but were advised to use the guidance to the
greatest extent possible.
A second communication arrived in early-mid August, when the BIE
released a comprehensive reopening plan for tribal schools to use as a
template for reopening safely. This plan was extremely well-done, and
over-all our school administrators were very impressed with the
guidance provided.
Realistically, however, the plan would require significant budget
increases in order for our schools to have adopted it in its entirety.
Our financial state of being under-funded did not coincide with cost of
implementing the BIE plan. However, BIA officials also emphasized in
teleconferences that the BIE plan was only a model, and that there is
no one-size-fits all approach for BIE schools. We were advised that
tribes should take our own locally determined needs into consideration
first and develop our own reopening plan based on local guidance as
determined through our unique needs.
Additionally, it would have been helpful to receive the BIE
reopening plan earlier in the summer, but we also understand the
constraints BIE is working under and the reality of bureaucratic delays
that are always a factor when dealing with the approval processes at
the Central Office in Washington D.C. However, as the first tribe in
the United States to sign a Self-Governance compact in 1990 with the
Bureau of Indian Affairs, the Mille Lacs Band of Ojibwe has a long
history of doing things our own way and organizing services around our
unique, locally determined needs and priorities. While we always
appreciate advice, assistance, information and expertise provided by
the federal agencies, we are accustomed to taking action to resolve our
challenges versus waiting for instructions from federal agencies.
In fact, our Nay Ah Shing School first opened in the early 1975
after students experiencing overt racism walked out of the local public
school, and asked the Band government to open a reservation school.
Former Chief Executive Arthur Gahbow and our other elected officials
responded immediately by opening a school in our community center and
then constructing a building after-the-fact which eventually became
part of the federal Indian Education programming at that time.
I also want to point out that Mille Lacs was well-prepared for
distance learning during the pandemic as a result of having pioneered a
hybrid distance learning program in 2016 at our Pine Grove Leadership
Academy. Pine Grove was a charter school in District III of our
reservation, which the Band eventually took over as a tribal school
funded by tribally-generated dollars. With funding limitations, we
wanted Pine Grove to become part of the BIE system but there was a
moratorium on new school expansion within the BIE system. We worked
closely with Chairwoman Betty McCollum, of the House Appropriations
Subcommittee on Interior, Environment, and Related Agencies to get
language through Congress that allowed for a waiver of the moratorium
if a tribe could show that it already had a facility and infrastructure
to deliver distance learning as a satellite school of the tribe's BIE
school.
Mille Lacs was the first tribe in the Nation to achieve the waiver,
and Pine Grove became part of the BIE system as a satellite school of
Nay Ah Shing. We continued to offer on-site learning at Pine Grove, but
were able to add distance learning for our students through
technological connections with Nay Ah Shing instructors. So we may have
been advantaged over other tribes with regard to implementing distance
learning for several years already, on a small scale.
Unmet Funding Needs:
While we appreciate BIE CARES Act funding received to date, we have
numerous needs that have gone unfunded that we expect may negatively
impact student, staff and community safety.
(1) Distance Learning Teaching/Curriculum Specialists
Currently, our school day will end at 1:00 in order to provide
teachers the time to deliver instruction to students who have chosen
Distance Learning. Our teachers would have more time to deliver classes
with a longer school day if the Band were able to hire additional
teaching staff who could devote their time to develop and deliver
distance learning curriculum. This would require additional funds.
Currently, our teaching staff will have to simultaneously deliver
distance learning while they are still learning distance learning
techniques and the associated technological knowledge required for
delivering distance learning, as well as having to create distance
learning curriculum. While our teaching staff are extremely committed
and outstanding teachers, we are very concerned about teacher burnout
and potentially losing teaching staff.
(2) Transportation
Our transportation dollars took a big hit with the closing of
schools in March. While students were not being transported, we devoted
transportation resources to delivering two meals a day, in addition to
student supplies, to students at their homes. With stops at every home,
this significantly increased the miles driven on a daily basis.
Further, when we do start transporting students, our plan for social
distancing on buses will require at least two additional staff on each
bus to scan the temperature of each child prior to getting on the bus
and to enforce social distance seating. Social distance seating also
means we will require additional buses and drivers. Until we are able
to provide additional busses, our staff have taken on the duty of
picking up children with our smaller vans, again adding to their
responsibilities without compensation that bus drivers would otherwise
receive.
(3) Our Operation and Maintenance
Our Operation and Maintenance staff have been focused on making the
building safe. As noted above, all areas of the schools have been
redesigned, as funds will allow, to accommodate safety measures.
However, to meet social distancing guidelines, we need more classroom
space to keep the student/classroom ratio at no more than 10 students-
per-classroom so as to keep our students safe and healthy. We are
currently at capacity at Abinoojiyaag School (K-5) and Pine Grove (K-
6). Classroom space is costly to construct, even temporarily. We need
additional funding for this.
(4) Special Education
Students with IEP's and those with learning disabilities have been
the most challenging to serve during the COVID-19 pandemic. The
individualized delivery of the curriculum to our special education
students has suffered. An ideal special education teacher student ratio
would be less than 5 students per teacher. Also due to COVID-19, it has
not been possible for paraprofessionals to work safely one-on-one with
students while social-distancing. This is another critical area that is
very underfunded and requires additional funding in order to provide
the necessary level of education.
(5) Student Socialization and Mental Health
Mental health for students and teachers during COVID-19 is a major
concern. We have only one social worker at our school, which has always
been a concern due to opioid or other substance abuse related
dysfunction among many of our families. Students residing in
dysfunctional environments depend on the mental health support
available on a daily basis at our schools. We are concerned that some
students who need these services will go without that support while in
a home-school living environment. In the past, we were able to have
mental health personnel from our Reservation clinic right in the
school. Additional mental health funds would allow us to bring on
additional staff or emergency contractors to help our students who need
this support and nurturing.
(6) Food Service
Food Service is funded partially by Minnesota State funds and the
remainder from Mille Lacs Band tribally-generated revenue. Individual
meal preparation for home delivery over the summer has been a hard hit
on our food service budget and more federal funds are needed.
(7) Older Students and Completion of High School Program
This year, our after-school activities will include a program to
assist students who dropped out and want to complete their high school
education program. We were funded for the 2019-2020 school year, but
need additional funding to continue through the 2020-2021 school year.
Currently, we have five students who are returning after a year or two
of absence.
Conclusions
Mr. Chairman, re-opening our schools confronts us with
unprecedented challenges. Each of them is costly. None of us can afford
to short-change the education of our children and youth. We will need
the financial and technical support of the federal government to soften
the damage to the next generation of Band members. We ask that you work
with our Congressman, Pete Stauber, in a bipartisan effort to make re-
opening work safely for our students.
[all]