RAPID CITY, S.D. – A U.S. district court judge ordered the Office of Indian Education Programs to stop any restructuring or the hiring or removal of any education employees in the Plains.
Judge Karen Schreier ordered that six education line offices in the Plains not be closed, and that the federal government cannot take any action relating to personnel in the planned restructuring.
The Department of the Interior proposed closing line offices located at schools, in favor of three offices in locations a distance from the schools in order to upgrade the officers’ qualifications to better manage, understand and control the field offices, according to the testimony of Ed Parisian, OIEP’s acting director.
The plaintiffs argued that the BIA did not properly consult with the tribes under the BIA’s own procedures, that the cost of the restructuring would add up to $5 million to the education budget and that funds for additional administrative personnel would be taken from education programs.
The plaintiffs also assert that the BIA spent funds appropriated for educational programs on administrative expenses and created new positions that Congress had not funded, which is in violation of federal law.
The plaintiffs argued that the proposed restructuring was arbitrary and capricious because it created a new layer of bureaucracy instead of improving education.
In court, Parisian testified that the need to restructure was created by the No Child Left Behind Act, and that under provisions of the act only seven of the 32 schools in North and South Dakota met the standards set by NCLB.
The government also argued that it met the requirements of consultation, a contention that was denied by the plaintiffs.
The government also stated that any restructuring plan was authorized by its discretion according to law and not subject to judicial review. Both of those arguments were turned down by Schreier, who wrote in her opinion that federal statutes require consultation with the tribes in any matter that changes education programs. The government position indicated it did follow the procedures of consultation, but Schreier ruled that the government did not consult with the tribes before expenditure of funds.
Schreier also cited the Interior code that describes the consultation process as a process involving the “open discussion and joint deliberation of all options with respect to potential issues or changes between the Bureau and all interested parties.”
Schreier wrote that there was evidence that the plaintiffs were unable to provide meaningful comment on the proposed restructuring, during what the government referred to as consultation.
Throughout the alleged consultation process, government officials contended that no funds from existing education programs would be used to finance the restructuring process.
In court testimony it was discovered that OIEP requested that Congress reprogram $1.5 million in Indian School Equalization Program funds and another $3.2 million from the early childhood development fund to help pay for the realignment.
ISEP is a federal funding program that provides funds for primary and secondary education.
Chairman Harold Frazier, Cheyenne River Sioux, said in his testimony that he had not known of the intent to use ISEP funds until the day of the hearing. Parisian admitted that the tribes were not informed that the ISEP funds would be used. The defendants also admit to not informing the tribes that early childhood funds were to be reprogrammed.
Schreier wrote that even though three rounds of consultation meetings were held, according to the defendants, not informing the tribes about the use of funds “is not the meaningful consultation required by BIA policy.”
“Because the public interest favors meaningful consultation between the federal government and Indian tribes regarding policy actions that affect Indian education, this factor supports granting the motion for preliminary injunction,” Schreier wrote.
Another hearing has been scheduled.
The plaintiffs in the case are the Yankton Sioux Tribe, Marty Indian School, Flandreau Santee Sioux Tribe, Cheyenne River Sioux Tribe, Oglala Sioux Tribe, Loneman School, Porcupine School, Wounded Knee District School, Standing Rock Sioux Tribe, Turtle Mountain Band of Chippewa Indians and the Lower Brule Sioux Tribe.
Defendants are Interior Secretary Dirk Kempthorne, Interior, BIA, Acting Assistant Secretary for Indian Affairs James Cason and Parisian.