Judge Backs Sioux Against Feds’ School Plan

SIOUX FALLS, S.D. (CN) — A federal judge Tuesday refused to dismiss a Sioux tribe’s claim that the federal government illegally failed to consult it before implementing wide-ranging changes in American Indian education likely to divert money to Washington and away from the tribes.
     The Cheyenne River Sioux sued the United States in October 2015 after the Department of the Interior and the Bureau of Indian Education rolled out plans for education “reform” in Indian country that would reduce staffing of tribal education offices and consolidate resource centers, impeding access for students and educators on remote reservations.
     Both the House and the Senate Committees on Appropriations approved the Department of the Interior’s proposal, but the tribe says it should be stopped because the federal government violated its duty to consult with them first.
     Bureau of Indian Affairs Consultation Policy requires that tribes receive timely notification of proposed federal actions; be informed of the potential impact on Indian tribes; be informed of which federal officials will make final decisions; have their input fully considered by officials responsible for the final decision; and advised about the basis for rejection of tribal recommendations.
     Although the federal government held “listening sessions” about the proposed reforms in South Dakota, New Mexico, Oklahoma, Mississippi and Arizona, the Cheyenne River Sioux say the government withheld specific information such as budgeting and staffing plans.
     In its defense, the government cited “hundreds of pages of exhibits incorporated in the Tribe’s complaint that detail [its] consultation efforts … over a two year period,” U.S. District Judge Karen Schreier wrote in her Tuesday opinion and order on the government’s motion to dismiss.
     Schreier found the government had not showed that it had meaningfully consulted.
     “(M)eaningful consultation requires, at a minimum, that defendants comply with federal statutes and their own policies defining what constitutes adequate ‘consultation,'” she wrote. “The Tribe’s complaint describes a process where defendants conducted research and executed a plan without providing sufficient opportunity for government-to-government discussion of possible avenues of education reform.”
     The reform plan calls for establishment of an Indian Sovereignty Office and Centers of Excellence, which the government calls “regional support system[s] [that] will provide support for school needs in the areas of professional development, training and technical assistance, program support, consulting, and more,” in a Bureau of Indian Education draft of the plan.
     But the tribe fears the Centers of Excellence will “only serve to benefit the BIE [Bureau of Indian Education] by expanding the BIE’s personnel,” funneling funds to Washington that should be used locally.
     Schreier also found merit in the tribe’s argument that the reform plan violated the 1868 Fort Laramie Treaty, which was meant to end years of hostility between the United States and the Sioux tribes. The tribes agreed to move onto reservation lands in exchange for continuing services from the federal government, including education for Indian children.
     By eliminating local offices that oversee the educational needs of tribal children, the Cheyenne River Sioux say the government is violating the treaty’s provision to ensure a “competent teacher” for “every thirty children.”
     Schreier denied the government’s motion to dismiss, except as it relates to violations of a settlement agreement reached in a similar education restructuring dispute, Yankton Sioux Tribe v. Kempthorne, in 2006, because that agreement applied only to the 2005 Bureau of Indian Education reforms.
     Schreier also presided over that case and ruled in favor of the tribes.
     The tribe is represented by Tracey Zephier of Fredericks, Peebles and Morgan in Rapid City; the government by Kevin Snell with Department of Justice in Washington, D.C.
     Neither attorney responded to an email request for comment Wednesday afternoon.

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