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at Bureau of Indian Affairs Office of Indian Education Programs had been sent letters by Department of Education's Office of Personnel indicating that they had no experience in Indian education and had been summarily disqualified. The Office of Personnel reopened the vacancies for these jobs, requested and received the Council's mailing labels, and sent out more announcements. However, none of these various positions have been filled, and non-Indian employees are continuing to move out of OIE under the one-time preference for non-Indians to move to other positions in the Department of Education. It should also be noted that there has been an Acting Director of the Office of Indian Education for 5 out of the last 7 years.

yet-to-be-finalized

On October 12, 1988, the Department of Education published for comment proposed rulemaking for the Indian fellowship program. The comment period closed on December 12, 1988. Although these regulations were not final, the 1989 fellowship applications cited these regulations and the scoring of the applications was based on the criteria in these regulations. On May 18, 1989, final fellowship regulations were published and became effective on July 19, 1989. On November 16, 1988, the Department published for comment proposed rulemaking for the Indian Education Act general provisions, the formula grant program, and the discretionary grant program. The comment period ended on January 17, 1989. The Department published final formula grant regulations on May 4, 1989, and final general provisions and discretionary grant regulations on May 11, 1989. While the Council is required by its enabling legislation in subsection (b)(1) to advise the Secretary with respect to the administration, including the development of

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regulations of any program in which Indians participate or from which they can benefit, including the OIE programs, and in subsection (b)(5) to assist the Secretary in developing criteria and regulations for the administration and evaluation of grants made under the formula grant program, the Council received the notice of proposed rulemaking like everyone else--in the Federal Register. However, the Department did accept the Council's comments on the formula and discretionary grant regulations after the deadline for public comments. Among other things, the Council recommended that all the notices of proposed rulemaking published on November 16, 1988, be republished as an amendment in the nature of a substitute so that grantees and other interested parties could determine how the regulations would actually read with such changes. This recommendation was made because the OIE Acting Director had reported to the Council on January 18 that no comments were received from the field on the proposed rulemaking and also because of the tedious process one had to follow to determine what actual changes were being proposed in existing regulations. For example, in reviewing changes effected by the proposed formula grant rulemaking, one had to review not only the Federal Register notice of proposed rulemaking but also Public Law 100-297, the technical amendments to such law, the regulations as printed in the newest available bound volume of title 34 of the Code of Federal Regulations (revised as of July 1, 1987), and the final formula grant regulations published in the Federal Register on July 28, 1987. Mr. Chairman, this tedious review and comparison was difficult for me as an attorney with a background in legislation and regulations and would be virtually impossible for the average layperson in Indian country. The OIE Acting Director related at a subsequent meeting of an Indian organization that, although quite costly, any future

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proposed rulemaking and final regulations for OIE programs would be published

as an amendment in the nature of a substitute.

were not in this promised format.

However, the final regulations

One further point on the promulgation of regulations for OIE programs must be made. There were only minor changes made in the proposed regulations prior to publication as final regulations. In addition, the proposed fellowship regulations were used for the 1989 awards, so it is clear that only very minor changes could be made prior to publication of the final regulations in May 1989 after the fellowship recipients had been selected using those criteria. These facts about the process leaves one wondering about the futility of commenting on any OIE proposed regulations, even if you take the time and make the considerable effort to try to figure out the proposed changes.

Mr. Chairman, the Council learned in September that although the formula grants to public school districts were to be effective on July 1, 1989, grant award documents had not been sent to the majority of some 1,100 public school districts as of mid-September. There were complaints that some school districts were considering laying off Indian education staff and putting the program on hold until the grant award documents were received. The Council also received complaints that some Indian fellowship recipients had to make loans to cover tuition prior to their schools receiving the actual funds. While the Indian Education Act of 1988 provides that the fellowship recipient must receive written notification of the amount of the award no later than 45

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days before the commencement of the academic term, there is apparently still a problem with the actual arrival of the funds at the universities. If this is the case, the Indian Education Act may need further amendment to address this problem. These problems may be resolved simply with full staffing of the OIE and effective regulations in place. Another concern is whether OIE is able to do the necessary monitoring of grantees with the staff shortage.

Mr. Chairman, I do not want you to think that everything has gone wrong since December 1988 between the Department of Education and the Council. I must tell you that administrative matters have gone very smoothly for the most part. The Acting Assistant Secretary for Elementary and Secondary Education and the Acting OIE Director have assisted in moving necessary paperwork for the Council to perform its duties and conduct its meetings and, in fact, has allowed the Council to use $6,000 of OIE funds, which would have lapsed, to print our annual report. This was the amount of funds the Council needed because of the unexpected OIE Director search activities which the NACIE budget had to sustain. In addition, OIE has been tremendously helpful to us in our quest for a computer for the Council. I am pleased to report that we have been told by the OIE Acting Director to expect the computer to be delivered to us in November. Other Department of Education administrative components have also been very helpful. The Council and I very much appreciate this assistance.

Mr. Chairman, the Council began requesting a meeting with the Secretary of Education as early as January 1989. In February, the request was put in

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writing.

The Council finally met with Secretary Cavazos on October 8, 1989, in Anchorage, Alaska. At that time, he requested that the Council provide him with information. He had just delivered a keynote speech at the opening assembly of the National Indian Education Association Annual Conference in which he indicated that Indian and Alaska Native education is a priority of the Department of Education. He agreed with the Council's most recent annual report in that reliable, uniform data and statistical information are needed regarding Indian and Alaska Native educational status, achievement levels, and dropout rate. He agreed that we cannot plan for the future of Indian education without knowing where we are now. These are very welcome words from the Secretary. The Council and I look forward to working with him in improving the educational status of Indians and Alaska Natives. However, we need to get the Office of Indian Education staffed and functioning well to assist in accomplishing these goals. The Council believes that much of the needed data should and could be provided by OIE's formula grantees. These grantees consist of some 1,100 public school districts and about 200 BIA-operated and tribally controlled schools. With the inclusion of BIA-funded schools in the formula grant program, we now have one federal education program which funds approximately 93 percent of the Indian students, since 82 percent of such students are in public schools and 11 percent are in BIA-funded schools. Uniform data should be required of these grantees; however, we may need Congressional action to direct this data collection and to avoid Paperwork Reduction Act restrictions.

Although OIE has a relatively small budget compared to other education programs in the Department of Education and compared to the education budget

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