11. ANALYSIS OF TITLE II, PART A, AS PASSED BY THE SENATE

Section 202 (4).-Admirable language, particularly because it lays the groundwork for an Indian entitlement rather than a public school entitlement.

Section 202 (5).-Exempts school boards that have a majority of Indians on the school board. This provision is clearly appropriate for well-defined Indian communities with one or two schools' It is not appropriate for very large districts such as Gallup or Central # 22 in New Mexico. Both have a majority (3 out of 5) Indian school board membership, and they have approximately 8,000 and 3,000 Indian students respectively. It is a mistake to assume that the school board members can successfully oversee the use of Johnson-O'Malley funds in every school in their district. The Gallup-McKinley school district takes up an area the size of Connecticut. This section would eliminate existing JOM committees in both districts and that would mean that 11,000 of the 17,000 JOM students in the State would have no local representation. The other problem is that this section contradicts the previous one by assuming a school district rather than an Indian entitlement.

Section 202(6). This section deals with the bordertown/peripheral dormitory program. No part of Johnson-O'Malley better illustrates an absence of Bureau policy than this program. Although the money comes through Johnson-O'Malley, bordertown programs have always operated independently of any State plans or committees. Until two years ago, the State of New Mexico provided State funding for bordertown students even when the students were citizens of Arizona and Utah. Now they pay State funds only for New Mexico residents. Nevertheless, New Mexico bordertown students have no Johnson-O'Malley committees, operate outside the terms of the State Plans, and the JOM contract comes directly from the Area Office to the school district. Arizona and Utah pay no State education money for bordertown students regardless of their residency. The Bureau is expected to provide full tuition payments for all students, even if they are going to school in their home district. How these States can justify going against their own constitutions and school statutes and ignore payments for State residents is a question that has been asked by several interested parties, including the General Accounting Office. This new section, if administered correctly, should take care of the question of State responsibility. There remains a need, though, for having bordertown funds also covered by JOM committees. Although tuition payments are legitimate for out-of-State students, there is no reason why bordertown funds like all other funds should not be handled under the terms of a plan and available for tribal or inter-tribal contracting.

Section 202 (7).-It's not clear why an authorization for funding is listed here. There is presently no ceiling on Johnson-O'Malley authorization.

Section 203.-This section calls for a committee to study JOM as it now operates and JOM as it relates to other Federal programs, specifically P.L. 874, P.L. 815, ESEA, and the Indian Education Act of 1972. It also asks for this committee to make legislative and policy recommendation both for Indian students in public schools and for Indian-controlled community colleges. Study committees seem to fall into four broad categories. Listed in descending order of value, they are: (1) committees to prepare study and documentation that will lead to necessary change: (2) committees that have no purpose other than to make a study for its own sake; (3) a committee formed to delay all questions of possible change; and (4) committees that will prepare artificial evidence either to justify an indefensible status quo or an already planned regressive move.

Last year, the House Interior Appropriations Committee asked for a joint BIA/OE study in relation to Title IV, Part A of the Indian Education Act, other OE funding and Johnson-O'Malley. This is to be completed by September, 1974. The existence of this study is now being used to justify the Administration's failure to ask for an appropriation under Title IV, Part A. In effect, the study is being acted on in a negative way, even though it hasn't been completed.

There is no question that Johnson-O'Malley should be looked at in the context of other Federal funding, but to a large degree this has already been done. I would like to submit a copy of what has come to be known as the "Red Regs." These have been put together by more than 50 Indian organizations and tribes and they represent through the combined efforts of all supporters, years of observation and study of Johnson-O'Malley.

I have not been authorized by any organizations or tribes to make definite legislative recommendations. I would like to present three fundamental principles incorporated into these regulations:

(1) Indian entitlement—It is recommended that since there are presently several Federal laws that represent public school entitlements (Public Law 874, Public Law 815, ESEA Title I, which applies to the overwhelming majority of Indian students, and Title IV, Part A), Johnson-O'Malley should be defined and administered as an Indian entitlement for all Federal Indians from birth through the completion of high school. Funding should be based on a per capita formula that would reflect either the State or national education costs, whichever is higher. Local school committees should all be eligible for contracts and they should be allowed to spend their entitlement wherever they wish-public schools, BIA schools, mission schools, independent contract schools, pre-school programs, Headstart, Homestart, etc. Only when there is a local option as to where the money will go will there be any kind of real Indian control and responsibility. An Indian entitlement formula would eliminate another serious Johnson-O'Malley problem: a random and inexplicable distribution of funds. Recent research by our organization has shown national funding ranging from $1,075 in Alaska to $74 in Nevada (Exhibit C). Within the States, it is equally ridiculous. Arizona has distributions ranging from $709.64 per student to $44.44 per student (Exhibit D). In addition, there are thousands of students, 5,258 in Arizona alone who receives no Johnson-O'Malley funding (E). This is not because the students have no needs, but because their districts will not raise taxes to meet the State-wide average. (NOTE: Although this is a condition of funding in Arizona, districts in neighboring New Mexico can and do have the lowest tax levies in the State and still receive Johnson-O'Malley funding.)

(2) The "Red Regulations" deal with another question that should be a part of any new legislation. They provide a real monitoring force the clearly-stated Indian right to spend the money where it seems most beneficial to do so. Those educational institutions that produce will receive continued and maybe additional funding.

Those educational institutions that do not produce can be turned off. It is very frustrating to Indian parents and education committee members, particularly those who are most active to discover again and again that although they believe they have finally accumulated some power on their committee, they still rank second to all public school boards when push comes to shove. Many Bureau officials would try to reassure us on this point by saying, "Maybe push should never come to shove." Maybe it shouldn't. And maybe there shouldn't be hurricanes and tidal waves. The fact is there will be conflicts of interest. And they needn't be detrimental to a public school; they can be a positive force for change. I don't see why negotiation and conflict cannot be a legimate part of a school's educational process.

It is a great irony that the Bureau of Indian Affairs frequently claims entitlement right to maintain a public school sanctity that many public school officials no longer try to justify. Appendix F contains a letter from the New Mexico State Superintendent of Schools who agrees with us on two crucial points: a) Public schools should receive Johnson-O'Malley funds only if they deliver; b) Public schools are one educational source; they are not the only source, nor should they be.

When Johnson-O'Malley is talked about, the Bureau believes only in public schools as legitimate places of learning. Clearly they don't really believe that. If they did, they would be busy dismantling the Bureau's own educational system rather than expanding it.

(3) There is another major reform issue which is handled by the "Red Regs" and should be a part of legislative reform, and that is the language that protects against supplanting. Over the years, the general BIA position has been, "Whether or not funds should be supplementary in a predominately non-Indian school district, clearly it shouldn't be an issue when there is an overwhelmingly Indian school with an Indian-controlled board." This position sometimes works very well with Indian-controlled boards. The question is posed that this way: "Would you rather use the money for supplementary purposes only, or would

you rather use it as you wish without any restrictions?" They invariably answer that they would prefer to have no limitations. This is misleading, though, because the whole issue of supplanting has been successfully bypassed. A crucial question must always be: To what extent are Johnson-O'Malley funds being used to do what has to be done without Johnson-O'Malley?

In the Natonabah case in New Mexico, it was ruled that schools not only had to meet minimum standards, they had to provide assurance of comparability between Indian and non-Indian students before any JOM funds could be used. That question always has to be looked at. To what extent are State funds being supplanted? Local funds? Other Federal funds? Two years ago the State Department of Education in Arizona held a press conference announcing that it would have to close 15 public school districts unless it received an additional $1.1 million to Johnson O'Malley funds. (Appendix G). Apart from the fact that the article is insulting to the intelligence of anyone who knows about Indian status on taxes and Public Law 874, it presents an absurd situation. Try to imagine the same State's Department threatening to close say 15 suburban school districts unless it received a relatively scanty $1.5 million. What is also interesting in terms of Federal funds supplanting Federal funds is that while holding this press conference, the State of Arizona was using the simplest and least rewarding possible formula for Public Law 874 funds. They still use the easiest and least advantageous formula-average of all elementary schools in the State average of all high schools in the State.

These questions all have to be considered in new Johnson-O'Malley regulations and in any new legislation. Those of us who have been working on the new regulations will continue to push as hard as we can for these essential administrative changes. And we will push above all for the two most basic points: Indian entitlement-Indian fiscal and administrative control.

Thank you.