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Judge halts costly BIA education plan in Dakotas
Tuesday, July 18, 2006

A federal judge on Friday ordered the Bush administration to halt its restructuring of Indian education programs in North Dakota and South Dakota.

In a 28-page decision, U.S. District Judge Karen Schreier said the administration failed to adequately consult tribes and tribal schools in the two states. So the pending changes at the Office of Indian Education Programs must be stopped before the tribes suffer "irreparable harm," the decision stated.

Issuing the preliminary injunction, Schreier wrote that "federal law and BIA policy requires meaningful consultation before taking action that affects Indian schools. If the restructuring occurs without meaningful consultation, plaintiffs will lose a procedural right guaranteed by federal law and BIA policy."

The ruling only affects the seven tribes and four tribal schools that filed the lawsuit. It doesn't appear to impact the education restructuring that is taking place across Indian Country.

"We just got the document," said BIA spokesperson Nedra Darling. "We're going to review it and we're working with the Justice Department."

Other tribes and schools, however, could try to stop the changes in their regions. Under a plan finalized earlier this year, the administration is closing some reservation offices, firing some longtime employees and taking nearly $5 million from Indian education programs to pay for the bureaucratic shuffle.

Interior Department officials say the restructuring is necessary because American Indian and Alaska Native students are falling behind. "Right now, as an overall matter, two-thirds of our schools are failing to meet standards," associate deputy secretary Jim Cason said at a Senate hearing in May.

But tribal leaders who filed the lawsuit say the closure of reservation offices and the cost of the effort will hurt Indian students in the long run. "This restructuring plan comes at a time when BIA schools and tribal schools are experiencing severe budget constraints and the lack of funds to provide basic services to children," said Harold Frazier, the chairman of the Cheyenne River Sioux Tribe of South Dakota.

The Great Plains tribes are among the most affected by the OIEP changes. Although the region is home to the second largest concentration of Native students and 44 percent of high school students attend BIA schools, the plans calls for closing six education offices and relocating them to urban areas far from the reservation.

In the decision, Schreier said the tribes proved the restructuring was approved without adequate consultation. She cited a lack of information the BIA presented about the source of the money being used to pay for the plan.

"There is evidence in the record that indicates that plaintiffs were unable to meaningfully comment on the potential impact of the proposed restructuring on the tribes and tribal schools because the BIA did not inform the tribes that the money for the restructuring would be reprogrammed from the Indian School Equalization Program (ISEP) funds and the Early Childhood Development funds."

Ed Parisian, the acting director of the OIEP, testified in court that the Bush administration received Congressional approval to take $1.5 million from ISEP, a program that helps at-risk students who may be underperforming, and is waiting on approval to take $3.2 million from the early childhood program that former Interior Secretary Gale Norton has called a success.

"Parisian conceded that the tribes were never informed that OIEP would be requesting the reprogramming of ISEP funds to pay for the restructuring," the decision stated.

In testimony, Parisian also acknowledged one of the driving factors behind the lawsuit. He agreed that BIA schools are being asked to meet the mandates of the No Child Left Behind Act without receiving additional federal funds.

Yet Schreier said there was little she could do to stop the reprogramming of BIA funds. But she said none of the $4.7 million in question can be used to pay for the restructuring in North and South Dakota.

And she agreed that closing the reservation offices and moving them to urban areas violates Interior's rural preference policy. One of the new offices was to be located in Rapid City, South Dakota, whose population was apparently not taken into account during the development of the plan.

During the hearing in May, Sen. Byron Dorgan (D-North Dakota), the vice chairman of the Senate Indian Affairs Committee, expressed concerns about the plan. Besides closing some of the offices, the BIA is creating new bureaucratic positions whose pay will be higher than education staff on reservations.

"I'm a little bit perplexed when I hear that what we need to fix this system is more senior executive management staffing," Dorgan said.

Since the ruling was issued as a preliminary injunction, the Department of Justice can take it to the 8th Circuit Court of Appeals, which includes North Dakota and South Dakota.

Court Decision:
Yankton Sioux Tribe v. Kempthorne (July 14, 2006)

Senate Hearing Documents/Info:
Oversight Hearing on Indian Education (May 25, 2006)

Relevant Links:
Office of Indian Education Programs, BIA - http://www.oiep.bia.edu
Office of Indian Education Programs Human Resources Services - http://www.oiephr.bia.edu

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