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New Battle in Turf War Over Native Education

A new front is opening in the turf war over Indian self-determination: Who controls Indian education—distant Federal bureaucrats or Indian communities attuned to their own children’s needs?

On the last day of July this year at an airport hotel in Denver, 65 Indian educators, elected tribal officials, representatives of tribally-run schools from across the nation, and some of their lawyers opened a two-day dialogue over what to do about the latest alphabet-soup Federal agency, the Bureau of Indian Education (BIE) and its increasing marginalization of tribally-controlled schools.

Attendees came from Washington State, Michigan, Mississippi, Louisiana, North and South Dakota, Minnesota, Arizona and New Mexico. Throughout the first day, participants voiced dismay about the arrogance of the BIE with its unauthorized dictatorial edicts. They divided up into separate groups to discuss various aspects of the problem. I attended as counsel for the Ramah Navajo School Board in New Mexico.

 “It’s all about who makes the decisions about what is best for Indian kids,” says Roger Bordeaux, the Rosebud Sioux superintendent of the Todd County School District, a tribally-controlled public school system on the Rosebud Reservation in South Dakota. Bordeaux, who organized the Denver event, continued, “We believe it is the tribal governments’ and communities’ job and right and not the Federal government’s.”

His views reflect growing concern in Indian country over the BIE’s steady inroads on local education control. Several participants noted that Congress did not create BIE or give it the powers it has assumed for itself. Above all, the conferees voiced their dismay that Indian tribes and communities are losing control, away from the public eye, without fighting back.

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Indian education was not always a neglected backwater. In the late 1960s and early 1970s, the abysmal state of Indian education played a central role in shaping the new concept of Indian self-determination.

In the mid 1960s, Senator Robert F. Kennedy was the prime mover in establishing and chairing a special Senate committee on Indian education. After collecting seven volumes of testimony from hearings held from Alaska to Florida, the committee issued its report. In searing terms, “Indian Education: A National Tragedy—A National Challenge” exposed the Federally-promoted and assisted policy of converting and “civilizing” Indians by force, a policy the committee called “coercive assimilation.” To me, coercive assimilation was nothing short of racial and ethnic discrimination, the flip side of the de jure segregation of African Americans.

The Senate report found that “The dominant policy of the Federal Government towards the American Indian has been one of coercive assimilation . . . [which] has resulted in . . . the destruction and disorganization of Indian communities and individuals; the growth of a large, ineffective and self-perpetuating bureaucracy which retards the elimination of Indian poverty; [and] a waste of Federal appropriations.” The report detailed the miserable failure of both public schools and Federal Indian schools in educating Indian children, concluding that “The coercive assimilation policy has had disastrous effects on the education of Indian children.”

The Senate report accelerated the drive for a new approach to Indian education and Indians generally. The very next year President Nixon announced the end of “termination” – the coercive policy adopted in the 1950s to force Indians to leave their tribal and cultural ties behind and “assimilate” into mainstream American society. Termination resulted in overnight misery for affected tribes. It abruptly ended all their Federal protections, abolished their reservations, and negated their treaty rights without due process of law.

In place of “termination,” Nixon proposed a new policy of self-determination. The new policy hearkened back to the Wilsonian era after World War I. In his historic Message to Congress on Indian Affairs, President Nixon embraced growing worldwide recognition of the right to self-government of native peoples suffering under colonialism. Coming on the heels of the Senate Indian education report, Nixon combined reform of Indian education with Indian self-determination. It was no accident that the subsequent legislation was called the Indian Self-Determination and Education Assistance Act.

Yet 40 years later, the Federal government seems once again hell-bent on forcing all sorts of substantive requirements on Indian-controlled schools, including standardized curricula. This counter attack stems from the turf war between unctuous Federal Indian agencies fighting to keep their bureaucracies intact and Indian tribes seeking to control their own lives. Seeking to justify its existence, BIE seems determined to install bureaucratic oversight far beyond just making sure money is spent properly.

The Denver attendees agreed that these Federal efforts are depriving Indian communities of meaningful local control and imposing unnecessary overhead expenses on local Indian school boards. These boards struggle to recruit qualified teachers and shape their educational programs in light of local conditions. But the BIE effort ends up with more outside bureaucracy and less local control. Once again parents are to be left out of significant involvement in their children’s education. “We’re losing our right to control our own schools,” said Bordeaux.

He quotes President Obama who came to Standing Rock Sioux Reservation, South Dakota, last June and said: "And that means returning control of Indian education to tribal nations with additional resources and support so that you can direct your children’s education and reform schools here in Indian Country. And even as they prepare for a global economy, we want children, like these wonderful young children here, learning about their language and learning about their culture, just like the boys and girls do at Lakota Language Nest here at Standing Rock. We want to make sure that continues and we build on that success." President Obama, July 2014.

Bordeaux is incensed that even as the President was speaking these noble words his minions in the BIE were attempting the very opposite.

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Bordeaux has worked all his adult life promoting Indian control of Indian education. In the 1980s he founded and headed the Association of Tribal Schools (ACTS).

ACTS succeeded a grassroots self-help organization called the Coalition of Indian Controlled School Boards (CICSB), which from 1972 to 1982 was the leading voice for the reform of Indian education. After Ramah on its own initiative had obtained funds directly from the Bureau of Indian Affairs (BIA) in Washington to start its own school from scratch, other Indian communities wanted to do the same thing. There was no template for doing so. So with help from the Native American Rights Fund, the fledgling Indian community groups organized their own grassroots coalition. Its guiding principle was to enable Indian communities to help each other achieve educational self-determination.

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During its brief existence, the Coalition helped the Wind River Indian Education Association in Wyoming obtain BIA assistance to form a locally-controlled school on the Wind River Reservation, an effort that led to an Indian-controlled separate public school district several years later. It helped a group of Indian parents in Wisconsin obtain similar funding and assisted them in forming an Indian-controlled public school district for the newly restored Menominee Indian Reservation. In 1979, the Coalition helped start the Alamo Navajo School Board in New Mexico. Along with these and similar projects, the Coalition played a decisive role in shaping and pushing for passage of the Indian Self-Determination Act.

Since then, however, the Federal bureaucracy has mounted a counter-attack on locally-controlled Indian schools. To a large extent, it has succeeded in maintaining its own existence at their expense.

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The Denver group talked a lot about politics. It recognized the world has changed since the 1970s. Then Congress and the White House teamed in bi-partisan fashion with grassroots Indian parent committees and school boards to transfer local control over BIA-operated schools to Indian communities. Now, forty years later, Indian communities must fight to be heard. Frustration with BIE dominated the discussion. “They are just taking control of education away from local tribal schools directly contrary to the Indian self-determination policy,” says Bordeaux.

Much of the meeting focused on how to preserve local educational control on big reservations where the tribe is made up of discrete communities and is not a single entity. For example, in the name of “efficiency,” BIE is pushing to consolidate numerous contracts with individual Navajo school boards into a single contract with the Navajo Nation. But would that be sound educational policy? On large reservations such as Navajo, would that be fair to the local tribal communities that have controlled their schools for many years? The Denver crowd unanimously answer NO.

David Gomez is a Taos/Navajo lawyer who represents a number of southwestern Indian-controlled schools, including several Navajo schools. He sees the BIE’s motivation not as springing from any legitimate educational concerns but from a narrow bureaucratic motive to ease BIE’s administrative burdens. Administering one giant contract is easier than administering 60 small ones.

Gomez cites a case he recently handled growing out of Big Navajo’s desire to exercise contol over local Navajo school boards. In July 2013 the Tribe’s Division of Dine Education director disrupted a school board meeting of one of Gomez’s clients. This official brandished a letter purporting to disband the board and seize instantaneous control of its 3 schools. The meeting broke up in disarray. Gomez filed suit to beat back the effort by the Navajo Nation education bureaucracy to usurp control from the elected board. He won the case the same day when tribal attorneys conceded the take-over was illegal. But this victory did not end the Navajo Nation’s or BIE’s efforts to seize control from community school and other Navajo community-controlled schools. Gomez blames BIE for encouraging the Navajo Council to take over the dozens of Navajo schools now under local community control.

Of special concern to the Denver gathering is the nationwide push to impose the Common Core curriculum on American communities including Indian tribes. C. Bryant Rogers is a law partner of David Gomez. He represents several tribally-controlled schools including the Mississippi Choctaw, the largest Indian-controlled school system in the country. Rogers sees the problem as the over-bureaucratization of Indian education. He detailed the paperwork requirements BIE is now imposing. “Completely unauthorized,” he laments, singling out the U.S. Department of Education’s “Common Core” curriculum for special criticism. “The Common Core curriculum now being pushed nationwide is a particular irritant,” he says. “It is depriving my clients of effectively choosing how to educate their own children to be both members of their own tribes and productive citizens of the larger society.”

He does, however, recognize the right of sovereign Indian nations to set standards. “The local community schools do not oppose attempts by big tribes, especially Navajo, to set educational policies and standards.” Rogers says. “What they oppose are coercive controls on basic local education decision-making originating from onerous Federal dictates.”

The expense of large tribal educational bureaucracies superimposed on the already overblown BIE bureaucracy is a major concern. At the very least monies to support such tribal bureaucracies must not be drawn from existing schools, Rogers and others insisted.

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The increasing bureaucratization of American education is generating fierce opposition around the country. The Denver group realized that many non-Indians are also speaking out against the Common Core curriculum and other tendencies toward centralized control of American education. Local education authorities all over the country are up in arms. Non-Indians as well as Indians insist that education is a quintessentially local function and must remain so. But for Indian tribes the push to standardize American education threatens to undo the most progressive Indian education policy this country has ever had. That policy rests on sound local democratic community control.

In short, the Denver meeting agreed that the Federal government’s role should be to assist local communities, not impose or enforce arbitrary standards. In Indian education especially, one size does not fit all. Once again, as Nixon commented in 1970, “the Federal government is trying to do for Indians what many Indians could do better for themselves.”

It is particularly shocking that the Interior Department should support the consolidation of power over local community schools, especially at Navajo. Justin Jones, a Navajo lawyer, argued that Navajo communities must never lose their right to educate their own children, as the Navajo Nation with BIE encouragement is now attempting to do.

L. Michael Willis, a lawyer representing several Indian-controlled community schools, summarized the Denver group’s immediate objectives:

  • Above all, take care that the BIE should not become a “State Education Agency.”
  • Eliminate BIE control over BIE-funded grant and contract schools.
  • Direct technical assistance funds away from BIE to tribal governments to let them provide that aid to their own locally controlled schools.
  • Remove all duplicative and unauthorized reporting requirements imposed on locally-controlled Indian schools.
  • Require that school data be managed to ensure student confidentiality;
  • Ensure that locally-controlled Indian school systems establish and monitor their own performance standards (allowing Common Core curricula to be made available to a local tribal school but not imposing it from outside).
  • Revise Federal rulemaking under the No Child Left Behind Act to reflect and assist local control of Indian schools.
  • Refocus the existing Memorandum of Agreement between the BIE and the Department of Education—never authorized by Federal law— to remove mandatory curricular compliance now imposed on tribally controlled schools and recognize tribal authority to oversee and regulate tribally controlled schools and systems but only with due process protections against arbitrary tribal behavior.

Willis also urged the BIE to work in partnership with a national network of tribal schools that would administer and coordinate technical assistance to tribal schools.

The Denver group intends to meet again in October. The old Coalition of Indian Controlled Schools Boards is about to be reincarnated. It is time to shake up Indian education once again. Stay tuned.

After graduating from Yale Law School In July 1968 and taking a job as a Poverty War law clerk at DNA Legal Services Program on the Navajo Reservation, Michael P. Gross was assigned to work on a school closing case for the Ramah Navajo Chapter. He entered private practice in 1971 and filed the Ramah Class Action in 1990. He is still working for his first client on, as he puts it, his first "case"—because he hasn't won it yet.