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Various inquiries have been made as to the 51 percent requirement and it seems to remain as mysterious as 70 percent enrollment figure obtained in Senate Bill 1017 and then advanced to Public Law 638. No one at the state level has been able to establish a correlation with these percentages to any known factor.

The Sisseton Schools will be hardest hit in South Dakota if this 51 percent requirement remains.

The Sisseton Public Schools would be eliminated from the Johnson-O'Malley Basic Support Program after this year. The 75 percent requirement to qualify in the newly attached laws of 51 percent Indian enrollment to be considered for a waiver would virtually eliminate their funding. Sisseton has some 600 Indian students, approximately 36 percent of their enrollment. Their proven basic support need for last year was $368,000.00.

School Districts with concentration of Indian youngsters have become dependent on Johnson-O'Malley funding over the years. Since this Act has been around since 1934, why the over-night attitude to eliminate funding at this time?

Presently, a smaller school with 100 Indian youngsters could qualify for help, and in contrast, the needs of some 600 Indian youngsters enrolled in Sisseton would not be met, in fact help would be virtually eliminated. One question of this Committee today is "was this the intent of Public Law 638?" If not, it stands in need of revision.

The 51 percent requirement will, in our opinion, promote segregation of students and divide the reservation adult population. This is in conflict with published Bureau philosophy, and certainly will not help meet the needs of children.

It is strange, that when a long-standing Public Law like 874 recognizes 25 percent federally effected enrollment as major impaction, your committee would see fit to use different figures. Congress now accepts and understands the language used in 874 funding, why this drastic change? Continuity and consistency have long been requirements for success.

In South Dakota we also have schools with less than 25 percent Indian student impaction facing financial crisis. Some serious thought must also be given to their problems.

Nationally, Johnson-O'Malley provides approximately four million dollars in basic support. It would seem that if we are all acting in the best interest of youngsters that this law of 41 years could be resolved.

If it is the intent of Public Law 93–638 to severely restrict or eliminate operational support for public schools then alternative legislation should be considered.

If this is not a viable alternative then the least we would ask the Committee to consider would be a Hold Harmless Clause, similar to that used in Public Law 874. This would allow Sisseton and similar schools to reduce programs systematically over a period of time.

We would ask this Committee to remember children are unique unto themselves. Schools are unique, and therefor a magic figure like 51 percent is not realistic.

Committee Members, please review your conscience and consider the viable alternative to the 51 percent requirement.

The other major concern of our organizations represented here today center around the right of the state and local boards of education to carry out their legal responsibility for the operation of public schools. We asked the National Association of State Boards of Education to detail some of the apparent conflicts between the proposed rules and regulations of Public Law 93–638 and state laws. Attached is a copy of those conflicts as perceived by Dr. Wesley Apker, Executive Secretary of that organization.

Also attached are other documents speaking to the same question along with a resolution of the State Board of Education of South Dakota speaking to the proposed rules and regulations of Public Law 93-638.

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09-002-Belle Fourche.. 13-003-Vermillion. 25-003- Milbank. 39-009—Madison (Lake Central).. 40-002--Spearfish. 49-C09-Brandon Valley. 54-001-Sisseton. 59-004-Winner... 65-001-Shannon County

452, 517 1, 253, 857

833, 137
1, 162, 693

855, 684
979, 285

658, 832
1, 142, 228

274, 641

3,021 455, 538 1, 309.6 347.85 15-001-McIntosch.
20, 481 1, 274, 339 1,584.3 804.35 15-002—McLaughlin.
16,936 850, 073 1,312.3 647.77 27-003-Haakon County.
8,033 1, 170, 726 1,553.6 753.56 31-001-Harding County-
9, 444 865, 128 1,263.0 684.98 42-005-Lyman County
6, 603 985, 888 1,482.2 665. 15 47-002-White River
11, 632 670, 464 1, 522.6 440. 34 52-002-Bison.
18, 263 1, 160, 4911,601.4 724.67

481 275, 122 1,593.9 172.61

261, 483 283, 411 523, 929 352, 080 524, 424 299, 013 393, 533

1, 837 263, 320 2,965 286, 376 5,072 529, 001 18, 751 370, 831 7, 302 531, 726 5, 179304, 192 1, 455 394, 989

432.4 608.97 609.3 470.01 569.6 928. 72 347.5 1,067. 14 800.9 663.91 449.5 676.73 329.1 1,200.21



The South Dakota State Board of Education has given careful and thoughtful consideration to the proposed draft regulations implementing P.L. 93–638. I am attaching a copy of a resolution adopted by the Board on September 23, 1975, and previously submitted to your office for consideration at the hearing before your subcommittee on October 20, 1975.

I want you to know that the action of the Board should not be interpreted as requesting authority for funds provided by the Federal government for Indian children to be spent on non-Indian education programs. The primary concern of the State Board of Education is to uphold the requirements of South Dakota laws as they relate to the responsibilities of a district school board. At this time the authority of a local board does not have any exceptions relating to the source of funds which they are administering. In fact, it is the responsibility of the various boards of this state to provide an equal educational opportunity to all students within their respective school districts.

The Board recognizes the educational problems which have existed for some time relative to Indian children; however, it is felt that a proper solution does not lie in granting the authority to any advisory committee to approve budget preparation and execution", as contained in 403.16(a) (1) (ii).

The Board is further concerned with the proposal to grant to any advisory group the authority to “nominate a reasonable number of qualified prospective educational programmatic staff members from which the contractor would be required (emphasis supplied) to select."

The final area of specified Board concern relates to 403.63, which reads, "State employees may be permitted to enter upon Indian tribal lands, reservations or allotments if the duly constituted governing body of the tribe adopts a resolution of consent.”

Senator, the State Board of Education is not attempting to prevent meaningful or significant progress in the education of Indian students in South Dakota. This Board has and will support sound, realistic efforts to improve the educational opportunities of any group of students. We urge the Commitee to give thoughtful consideration to any federal regulations which usurps the right of a district school board to make a final decision so long as that board is operating within the laws of South Dakota. We believe other provisions of the proposed draft regulations can be used to correct any alleged inequities which have existed or any that may exist in the future. We are confident your Committee will act in a reasonable and responsible way in your consideration of these concerns.

Attachment. State Board of Education Resolution.


Whereas, South Dakota Law 13–8–39 states, “As provided and limited by law, the school board shall have the general charge, direction and management of the schools of the district and care of all property belonging to it and shall have power to levy taxes, borrow money, employ any necessary personnel, to lease real and personal property, carry liability and other insurance, purchase all necessary books and equipment and purchase real property and erect necessary buildings for the operation of such schools"; and

Whereas, Indian children, by virtue of their citizenship, in South Dakota, are entitled to a public education comparable with that provided any other citizen of this State ; and

Whereas, many school districts in South Dakota have an inadequate property tax base for the provision of an educational program which compares favorably with the state average; and

Whereas, on April 16, 1934, Congres passed the Johnson-O'Malley Act; and

Whereas, this legislation has subsequently been revised and there is now pending P.L. 93-638 draft regulations designed to implement the latest revision of this Act; and

Whereas, certain provisions of the proposed draft regulations are contrary to the laws of South Dakota ; and

Whereas, more specifically, the draft regulations remove from the various duly elected School Board the final authority to approve budgets and see that they are properly executed, to hire qualified prospective educational staff members, evaluate staff performance and approve and disapprove all programs to be contracted ; and

Whereas, the proposed draft regulations seek to prohibit State employees from entering upon Indian tribal lands, reservations or allotments to visit schools receiving State funds except upon a resolution of permission approved by the duly constituted governing body of the respective tribes which, if enforced, could result in a loss of State accreditation and a subsequent loss of State aid funds; now, therefore, be it

Resolved, That the State Board of Education meeting in special session on September 23, 1975 at Buffalo, South Dakota hereby calls upon the Congress of the United States to reject any proposed draft regulation relating to this act or other federal programs which do not recognize the right of an elected school board to make the final decision in those areas provided by the laws of South Dakota ; and be it further

Resolved, That the State Board of Education recognizes the need for providing an educational program for Indian students which is comparable to all other students in each district and therefore pledges the efforts and resources of the Division of Elementary and Secondary Education to the reasonable resolution of any impediment to the attainment of that goal ; be it finally

Resolved, That the State Board of Education will support all reasonable efforts to eliminate prejudice or any other negative aspect of education in the State of South Dakota which is under the jurisdiction of the State Board of Education.


Pierre, S. Dak., October 17, 1975.
To: Senator James Abourezk.
From: Thomas C. Todd, State Superintendent.
Subject: Part 43—Education Contracts Under Johnson-O'Malley Act.

Your Subcommittee has received a statement and resolution from Mrs. Judy Olson, President of the South Dakota State Board of Education. I concur in the position by President Olson and sincerely request the Senate Subcommittee on Indian Affairs to give great weight to the concerns she has expressed.

One of the strengths in American education lies in the belief by the people that they still have a voice in their educational future through the elected process. Any erosion of the right of an elected school board to make the final decision will surely result in an erosion of public confidence in the entire educational process.

A realistic alternative would be for the committee to consider the addition of a rule which would provide that either the local education agency or the Indian Education Committee would have the right to appeal a decision which was felt to be detrimental to the best interests of the students which should be served to the State Superintendent who would have the authority to conduct a hearing into the merits of the allegations and issue a ruling in accordance with the findings. This procedure is not without precedent in South Dakota, and perhaps in other states.

The problems and concerns of Indian children are real and must be addressed in a forthright and meaningful way. It is my sincere hope that the United States government does not take any step which would ultimately result in a decrease in the educational opportunities of the native Americans whose needs today are so great. This office is available to work with any group whose sincere goals and efforts will result in a better school system in South Dakota.


Denver, Colo., October 1, 1975. Attention : Public Law 93–638 Task Force (Code 101A). COMMISSIONEER OF INDIAN AFFAIRS, Washington, D.C.

GENTLEMEN: The National Association of State Boards of Education, an organization representing the fifty state boards in the United States, has carefully reviewed the rules proposed to implement Public Law 93–638. We congratulate you for the completeness and detail of those rules. At the same time we take strong excention to several of the proposed rule changes in Part 403 dealing with Educational Contracts under the Johnson-O'Malley Act. Specifically, our concerns are as follows:

403.15 Establishment of Indian Education Committee

Clearly the need for Indian parent involvement in the planning and evaluation of school programs impacting their children is essential. However, such committees must be advisory to legally elected and statutorally empowered boards. For the federal government to pass laws undoing two hundred years of state control is a dangerous precedent indeed. We applaud the rules' efforts to guarantee parent involvement; we abhor the rules' proposed circumvention of state control and local board control and urge the alteration of this entire section to ensure that Indian Education Committees remain advisory to the local board. 403.16

(a) (1) “Participate fully in the planning, development, implementation ... etc."

This subsection must clearly state that such involvement is advisory only. As it reads now we believe that this subsection would clearly circumvent the legal authority of local boards if that board was not comprised of a majority of Indians. Certainly we respect the desire of any race to have the right of self-determination. If the intent of this legislation had been to circumvent the state's authority of local boards not comprised of a majority of Indian parents, such intent should have been stated clearly in the legislation or the floor debate surrounding that legislation. We object most vigorously whenever proposed agency or department rules go beyond legislative intent or seek to circumvent state control. It is our judgment that this proposed rule would do exactly that.

(a) (1) (ii) “Approve budget preparation and execution.”

Again the Indian Education Committee certainly has the right to advise the local board of its recommendation for a budget and to raise questions about the use of funds. However, we strongly oppose giving any committee budget control when that authority is already vested in a legally constituted body, i.e., a local board of education.

(a) (1) (iv) “Nominate a reasonable number of qualified prospective educational programmatic staff members from which the contractor would be required to select."

While we could support a proposed rule which would give the Indian Education Committee involvement in the personnel selection process, this proposed rule goes much too far. We adamantly object to the circumvention of the legally constituted local board. An Indian Education Committee certainly could nominate personnel, encourage personnel to apply and even assist in the interview process. However, to restrict selection to the Indian Education Committee's nominations is completely unacceptable.

(a) (1) (v) “Evaluate staff performance and program results and recommend appropriate action to the contractor."

Once again this proposed rule circumvents the legal powers of the local board. The Education Committee's involvement in these activities must be advisory only.

(2) “Approve and disapprove all programs to be contracted under this Part.”

State Boards of Education establish basic program standards in all but one state. As we read this proposed rule the local committee is vested with the authority to approve contracts. This rule should clearly state that contracted programs must be in full compliance with state board and SEA policies, rules and regulations. Basic programs for Indian children seem an appropriate matter upon which an Indian Education Committee could comment and give recommendation to a local board; they should not, however, have final approval or disapproval authority over supplemental programs for Indian children.

(4) (b) (1) through (8).

We believe the Indian Education Committee may be proj rly involved in a wide range of activities, so long as they do not circumvent the legal powers of the state or local board of education. To preclude jurisdictional disputes between a board and the Indian Education Committee, we believe both bodies should agree in writing to the procedures and duties suggested by the subsections (4) (b) (1) through (8). 403.53

We would hope that the cooperative relationship between a tribal body and state officials never became so strained that permission to inspect the schools or enforce state compulsory school attendance laws were denied. But what if per

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