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Tribes Sue Over School Agency

By Martin Salazar
Copyright 2006 Albuquerque Journal; Journal Northern Bureau
    New Mexico's Pueblo Indians and Navajos have filed lawsuits over the federal government's decision to revamp the agency that oversees tribal schools.
    Both the Eight Northern Indian Pueblos Council and the All Indian Pueblo Council have taken federal officials to court over the matter, arguing in their lawsuit that they weren't properly consulted about the reorganization and that the new system funds more high-level bureaucrats at the expense of programs that benefit students.
    The Navajo Nation, the country's largest Indian tribe, filed a lawsuit over the reorganization in July. Attorneys for the Navajo Nation and the federal government have been meeting to work out a settlement.
    The Pueblo Indian plaintiffs have succeeded, for now, in keeping the U.S. Interior Department and the Bureau of Indian Affairs from moving forward with their plans.
   
Preliminary injunction
    A U.S. district judge in Albuquerque granted a preliminary injunction last month, ordering the federal government to cease restructuring of the Bureau of Indian Education. He denied another request to force the federal government to undo the changes it has already made.
    While U.S. District Judge William P. Johnson found that there was no credible evidence to support the plaintiffs' contention that money had been diverted away from Indian education programs to pay for the restructuring, he did find that the plaintiffs would likely prevail on their claim that the federal government failed to engage in "meaningful consultation" with the tribes about the reorganization.
    The preliminary injunction only applies to bureau education operations in New Mexico, and it specifically allows federal officials to fill vacant positions.
    Johnson's order states that the preliminary injunction is to remain in effect until the Interior Department and BIA comply with statutes and policy mandating government-to-government, meaningful consultation with tribal entities.
    Ann Berkley Rodgers, one of the Albuquerque attorneys representing the Indian organizations in the lawsuit, said her clients are pleased with the preliminary injunction.
    "We will be going on, seeking a permanent injunction unless the U.S. starts really working with the pueblos," Rodgers said. She said she's hopeful the federal government and pueblos can come together and work out a settlement to avoid a full trial.
   
Federal response
    Justice Department attorney Daniel E. Bensing declined to comment on the case.
    But in a court filing, department lawyers argue that the federal government has no choice but to move forward with reorganization to improve the educational system for Indian students.
    According to the Justice Department filing:
    The Bureau of Indian Education provides annual school funding for more than 47,000 Indian students in 184 schools and indirectly serves more than 400,000 students through several programs.
    Before restructuring, the Bureau of Indian Education responsibilities were administered by 23 mid-level field managers— called educational line officers— who operated offices that directly oversaw schools. All 23 managers reported to the deputy director of the Bureau of Indian Education, creating a bottleneck, federal officials contend.
    The reorganization plan calls for reducing the number of educational line officers and adding a new tier of supervisors between the Bureau of Indian Education deputy director and the educational line officers.
    Three associate deputy directors would be added under the plan, the Justice Department filing says. Educational professionals trained to design programs to improve student performance would also be hired and made available to Indian schools under the plan.
    According to the Justice Department filing, students in Indian schools haven't performed well and under the No Child Left Behind Act, the schools are required to substantially improve the performance of their students.
    The No Child Left Behind Act, an initiative of President Bush's administration, penalizes schools if students don't meet certain standards in reading and math tests. The act mandates that every public school student be at grade level for reading and math by 2014.
    Currently, only 30 percent of BIE funded schools are meeting Adequate Yearly Progress goals.
    "Under these circumstances, blithely continuing with the status quo system of management, administrative oversight and resource allocation, is simply inconsistent with the Bureau of Indian Education's responsibilities to all children in bureau-funded Indian schools," the filing states.
    The federal government also asserts that no bureau-funded Indian school has lost or will lose any funding as a result of the restructuring.
    "The FY 2006 funds to pay for the restructuring have come from the reprogramming of $1.5 million in funds allocated to a 'Leadership Academy' initiative that was never implemented," the DOJ filing states. It also states that none of the funding changes that have occurred since the restructuring was announced was related to the restructuring.
    And the federal government also maintains that it fulfilled its obligation to consult with tribes before implementing the reorganization.
   
Plaintiffs disagree
    But Rodgers, the attorney representing Eight Northern Indian Pueblos Council and the All Indian Pueblo Council, disagrees.
    "You can't hide the fact that budgets were cut and programs were lost," Rodgers said. She said that more than $4 million was taken from programs to benefit tribes to pay for the reorganization and for new super-salaries for the additional level of bureaucracy.
    Rodgers added that the manner in which federal officials consulted with tribes on the reorganization "was totally insulting to all of the tribes and it totally ignored the notion that tribes have concerns about schools that serve their students."
    She said federal officials failed to adhere to the rules that set out what "meaningful consultation" is. The federal government clearly didn't listen to tribal concerns about the reorganization, Rodgers said. Instead, she said, the federal government swooped in from Washington with a one-size-fits-all plan.
    "It doesn't make sense how creating new bureaucracy in Washington is going to increase student performance in schools," Rogers said. She said tribal leaders ultimately want to see the money going to the local levels to assist students in schools.
    Rodgers said she has heard that two other lawsuits have been filed by tribes over the reorganization, including the one by the Navajo Nation.