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Meeting needs of Indian students

JOM Modernization Act faces problems

Back row (L to R): Valerie Bellson, Harold Dusty Bull, Jonas Yazzie, Mark Vance, Carla Mann, Anna Ross, Leanna Russell, Christine Fineday
Front row (L to R): Marry Knutsen, Petra Wilson, Jackie White, Catherine Ezquivel

RAPID CITY— Although the Johnson-O’Malley Act (JOM) was signed into law in 1934, many people who benefit from the Act are unaware of its particulars or that it even exists. JOM’s modern purpose is to provide funding to meet the educational needs of eligible Indian students, where that need is unique or specialized beyond the capacity of normal school funding, and to help schools maintain established State education standards.

Over the years, outdated eligibility data, and a freezing of JOM funding in 1995, has resulted in a need to revamp the system, to ensure every eligible student is receiving JOM assistance. On December, 31, 2018, the JOM Modernization Act was signed into law by President Trump.

Senator John Hoeven, chairman of the Senate Committee on Indian Affairs, stated upon passage of the bill: “This legislation will ensure an accurate and updated count of students participating in the JOM program. A yearly JOM count better enables the BIA to provide needed supplemental education services and assistance to many Indian students across the country.”

The bill was sponsored by senators Heidi Heitkamp (D-ND), Steve Daines (R-MT), and James Lankford (R-OK).

“Studies have shown that culturally relevant learning programs help students perform better in the classroom,” Heitkamp said. She added that too often these programs are “underfunded or poorly implemented,” and JOM is a textbook example. Heitkamp concludes that the Act “will require that accurate counts of Native American students are performed, so that these under-served students and schools can receive the support they deserve.”

“What’s happening right now is they are doing the tribal consultations, the Bureau of Indian Education (BIE) is setting those up,” said Petra Wilson, the Region 7 representative on the National Johnson O’Malley Association Board (NJOMA), and a member of the Oglala Sioux Tribe. “To me it’s kind of sad to not see tribes take an interest in attending these consultations. Really, if you look at everything we are doing, it’s about the kids, and it’s about those seven generations. People tend to think in the now and not so much into the future. One of the big conversations right now is student count, child count. The child count is a difficult one to really get accurate. So, there’s been different discussion about how that’s going to look. I think the BIE asked for a child count in May, but it’s about the potential number, not necessarily the current number, that are going to be JOM qualified. Each member is supposed to be reaching out to the tribes in their region and bringing back that collective input. It’s hard because there’s not a lot of clarity on how to do that, how to outreach.”

A potential problem for the Modernization Act will be the accuracy of the child count. Wilson: “Coming up with those numbers is just hard, maybe because something is missing in their record keeping maybe they don’t understand how it’s being communicated, I don’t know…but it seems to be a constant conversation, child count. The (consultation) closing is in December and many people are asking for more time. What I see is a lot of people being left out, so I don’t know where (child count) is going to go from there.”

In order for the Modernization Act to have teeth, comprehensive cooperation in compiling accurate data, and input regarding the structuring of programs, is required from every tribe and Indian community. A series of tribal consultations has been slated across 2019, ending in December, but these consultations are effective only on paper, and the reality is tribes must attend and contribute to the process.

Blood quantum also factors prominently, in that students must be at least ¼ Indian blood in order to qualify for funding. In a landmark 1986 case, Zarr v Barlow, Dianne Zarr, certified to have 7/32 Indian blood, was ruled ineligible for higher education funding by the BIA, who imposed a blood quantum cut-off of at least ¼, of which Zarr fell short, by 1/32. The Ninth Circuit Court ruled in favor of Zarr, stating that the BIA had nothing to base blood level restriction on. The Court determined that Congress decided in 1974 to use tribal membership as the sole criteria for higher education funding.

Consultation on this issue would have to address rationale for why Zarr v Barlow applies to JOM funding despite the 1986 ruling, but if tribes don’t provide input during consultation, JOM is left with little reason to alter blood quantum restriction. JOM funding applies to students Grades Three through 12, with a preference for those living on or near a reservation. In the Zarr v Barlow ruling, this distinction was addressed, not as it applies to JOM, but the Court determined there was sufficient precedence for the ¼ limit to apply to primary education. In determining eligibility for programs, Tribes and schools are placed in the difficult position of having to pick and choose between one student and another, often in the same family, as to who qualifies by blood quantum, and who does not.

“We talk about self-determination and self-identifying,” Wilson said. “I think nothing is more disheartening than having to tell a kid that they can’t be included in a Native American program, that they feel like they relate to, or should be part of, because they are not enough blood.”

Blood quantum is also tribe specific, you can’t combine it with other tribes, even if the blood from those other tribes put you well over a quarter.

Another source of revenue for Indian schools has been Federal Impact Aid, with a yearly budget of about one and a half billion dollars. This funding is weighted to address the needs of school districts experiencing lost revenue because of tax exempt federal lands, which include Indian lands, but other federally connected students as well, such as those whose parents are military. The problem with Impact funds is they can, with a few restrictions, be used wherever the school district deems necessary, and so potentially, the funds might never reach the students for which they were initially acquired, in other words, funding acquired for the use of Indian students, could be used almost entirely for the use of non-Indian students.

All of these factors point to a need for tribes to become more deeply involved in the education process, particularly with JOM funding. Since 1995, JOM funding has been frozen.

“Every year, from my own understanding,” Wilson said, “JOM has been on the chopping block. That accounts for (funding) being frozen; my understanding is that (in 1995) they were beginning conversations on eliminating, and it just stayed frozen.”

The best part about the Modernization Act is it unfreezes that funding and recalibrates it to the newly acquired data and input from the 2019 consultation cycle with tribes and Indian communities. However, the potential exists that the new data and input will be inadequate, not only because tribes missed their consultation opportunity, but because the nuts and bolts problems facing child count accuracy still persist, and the inclusion of students currently ineligible due to blood quantum, would have a serious impact on the child count totals. Between now and December tribes still have an opportunity to minimize these concerns, and may get an extension into 2020, to provide the data and input necessary to realize the lofty goals of the 2018 JOM Modernization Act.

(James Giago Davies is an enrolled member of the Oglala Lakota tribe. He can be reached at

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