PORT GAMBLE S'KLALLAM TRIBE vs. Docket No. 95-67-O
NORTH KITSAP SCHOOL DISTRICT
Before: Judge Richard F. O'Hair
In accordance with the Improving America's Schools Act of 1994, Pub. L. No. 103-382,
§ 8004 (to be codified at 20 U.S.C. § 7704)See footnote 11 and 34 C.F.R. Part 223, Subpart D, the Hearing
Examiner hereby submits his Interim Findings of Fact and Recommendations concerning
appropriate remedial action to the Assistant Secretary for Elementary and Secondary Education.
This proceeding originated with a complaint dated March 31, 1995, filed by the Port
Gamble S'Klallam Tribe (Tribe) against the North Kitsap School District, Washington (District).
This complaint alleges that the District violated special impact aid provisions found in Pub. L.
No. 103-382, § 8004. That statute provides that a local educational agency (LEA) that receives
federal impact aid because it educates Indian children who reside on or have a specified
affiliation with tax exempt federal property, such as Indian reservations, must establish and
implement certain policies and procedures. Specifically, these policies and procedures must
ensure that: (1) Indian children educated by the LEA participate on an equal basis in the school
program with all other children, (2) the local Indian tribes and parents of the Indian children are
afforded an opportunity to present their views on the programs and activities as well as the needs
of their children, (3) parents and Indian tribes are consulted and involved in the planning and
development of educational programs, (4) relevant applications, evaluations, and program plans
are adequately disseminated to the tribes and parents of Indian children, and (5) parents and
Indian tribes are afforded an opportunity to present their views to the LEA regarding its general
educational program. Pub. L. No. 103-382, § 8004(a); 34 C.F.R. Part 223, Subpart B.
In this case, the Tribe's complaint alleges that the District has:
On April 12, 1995, the Assistant Secretary for Elementary and Secondary Education received and accepted the Complaint and granted the Request for a Hearing pursuant to the appropriate regulations. Thereafter, the undersigned was appointed as Hearing Examiner. 34 C.F.R. § 223.24 and § 223.33. After concluding pre-hearing matters, a hearing was scheduled for and convened on May 10-11, 1995. At the hearing, counsel for the Tribe requested the opportunity to submit a post-hearing brief. It was agreed that the Tribe would submit a post- hearing brief by June 2, 1995, that the District would submit its post-hearing brief by June 9, 1995, and that the Tribe would have the option of submitting a reply brief by June 16, 1995.
These briefs were timely filed.
At the hearing and in its post-hearing briefs, the Tribe argued that (1) under the District's current Indian Policies and Procedures (IPP), the Tribe is not involved in the District's processes to the degree required by law, (2) even if the amended IPP does meet the legal requirements, the District's actual practices do not adequately include the Tribe, and (3) the tribunal should retain a supervisory position to ensure that the District complies with its legal requirements.
The District replies that (1) its current IPP complies with the statutory requirements, (2)
the District has provided the Tribe, in practice, the opportunity for comment, consultation, and
information to allow meaningful participation in the development of District educational
programs as section 8004(a) requires, and (3) the District's non-compliance before 1993 with
certain procedural requirements of the former section 874 not only has been cured, but also did
not cause the Tribe any harm warranting exercise of continuing supervisory jurisdiction by the
Department of Education.
At the hearing, counsel for the Tribe stated that jurisdiction over the Tribe's allegations
as to the lack of equal participation by Indian children in District programs had been transferred
to the Office of Civil Rights. Therefore, no further discussion of this requirement is necessary
Opportunity for parental comments and recommendations
The Tribe argues that the opportunities for parents and Indian tribes to present their
views on the District's programs are limited because the District's IPP authorizes the District to
provide only minimal information. The Tribe contends that section 3.A. of the IPP, found at
Attachment A to these Findings and Recommendations, does not provide for a complete
exchange of information describing Impact Aid-funded programs and activities or the District's
general program, and that the Tribe is forced to react only to whatever materials the District
chooses to make available. In response, the District argues that section 3.A. (1)-(4) requires the
District to make available to the Tribe a wide range of material, with which it contends that it
complies, and that the statute does not require the District to prepare custom reports for the Tribe
The language of section 3.A. specifically references Impact Aid funds and imposes upon
the District the requirement to provide to the Tribe, and to any other person on written demand,
information regarding the participation of Indian children in District programs supported by
Impact Aid funds. Although sections (1) through (4) identify a wide range of materials that the
District must provide to such interested parties, they are prefaced with the statement that (T)his
information shall include, but not be limited to the following, thus providing for the submission
of materials other than those specifically listed. I agree with the District that Section 8004(a)
requires the dissemination only of relevant applications, evaluations, and program plans and does
not entitle an Indian tribe to specialized reports on demand. I find that the District's current IPP
requires the District to provide substantial information to the Tribe and to other interested parties
and is in compliance with the statutory requirement that it ensure that relevant applications,
evaluations, and program plans are disseminated to the parents and Indian tribes.
The Tribe also claims that the current procedures directly constrain the Tribe's ability to
express views and make recommendations. Specifically, the Tribe objects to the use of the word
may in section 3.C. of the IPP, arguing that this places the process for joint meetings between
the District and the Tribe entirely at the discretion of the superintendent, who may appoint
representatives to participate in joint meetings as he or she deems necessary. The District
contends that the first sentence of section 3.C. goes beyond the minimum requirements of
§ 8004(a) in that it adds discretionary authority for the District to conduct specialized studies and
prepare reports in response to specific tribal requests. At the hearing, both Gerald Brock, the
District's assistant superintendent for financial services and operations, and Robert Ellsperman,
the District's superintendent, testified that the references to joint meetings in the second
sentence of section 3.C. were not referring to the joint meetings discussed in the first sentence
of section 3.C. Mr. Ellsperman testified that this section has two parts, in which the first part
provides for potential meetings or reviews that may occur, whereas the second part provides for
systematic dialogue wherein if the Tribe requests meetings, they shall occur.
I find these explanations by the District, as well as the language of section 3.C. in
general, to be troubling. The language of section 3.C. is inherently contradictory. The first
sentence clearly gives the superintendent discretion as to whether he or she appoints District
representatives to participate in joint meetings with representatives of the Tribe. The second
sentence begins with the phrase, (I)f requested by a Tribe, such joint meetings shall occur not
less than three times a year.... (emphasis added). This language implies that the District does
not have the discretion as to whether the joint meetings referenced in the second sentence will
occur, because they shall occur if requested by a tribe. Nonetheless, the use of the word
such implies that the mandatory joint meetings discussed in the second sentence are the same
as the discretionary joint meetings discussed in the first sentence.
At the hearing, Mr. Ellsperman testified that he would entertain breaking section 3.C.
into two parts in order to avoid the appearance that the superintendent has discretion in providing
the joint meetings discussed in the second sentence of section 3.C. In its brief, the District
requests that the tribunal's conclusions reiterate the mandatory duty that section 3.C. imposes
upon the District to meet, consult, and provide opportunities for joint or separate
recommendations from the Tribe and District officials regarding the District's educational
program. I agree. For the purposes of this proceeding, I hold that the joint meetings discussed in
the second sentence of section 3.C. are mandatory upon the District and that if the District fails
to hold them upon request of the Tribe, the District shall be in violation of § 8004(a).
Furthermore, I recommend that the District amend its IPP in this manner as soon as practicable.
Mr. Ellsperman also noted that section 5 contains an open-ended invitation to the Tribe.
That section states that, (T)he above procedures are not intended to be the exclusive means for
Indian Tribes, parents, or other interested persons to provide comments and recommendations on
these matters. The section states that comments or suggestions are welcome at any time and
can be made in writing to District officials, at public comments sessions at board meetings, or by
other means. For these reasons, I cannot agree with the Tribe's assertions that the current
procedures directly constrain the Tribe's ability to express views and make recommendations
and that the Tribe is unable to effectively make recommendations at the special school board
meeting discussed in section 4.C. because of insufficient information. I find that the current IPP
complies with the requirements of § 8004(a)(2) and (5).
Consultation of parents and Indian tribes
The Tribe asserts that section 3.B. provides inadequate assurances that the Tribe will be
consulted and involved in planning and developing programs and activities through District
committees and task forces because these groups must include citizen and parent members and
must undertake planning, evaluation, or policy development tasks concerning educational
programs. In response, the District contends that the second sentence of section 3.C. goes
beyond section 3.B. because it provides for joint meetings between representatives of the Tribe
and the District at least 3 times per year.
While the language providing parents and Indian tribes the opportunity to participate in
District committees and task forces, when such groups include citizen and parent members,
may be merely an attempt to include Indian tribes and parents in committees when other parents
are represented, I agree with the Tribe that this language is potentially limiting and urge the
District to delete it. As the Tribe correctly notes, the tribe has an interest in the child which is
distinct from but on a parity with the interest of the parents. Mississippi Band of Choctaw
Indians v. Holyfield, 490 U.S. 30, 52 (1989), quoting with approval In re Adoption of Holloway,
732 P.2d 962, 969-70 (Sup. Ct. of Utah, 1986). Thus, it is not enough for the District simply to
provide Indian parents the opportunity to participate on such District committees and task forces
only in their role as parents. The District must consult with the Tribe directly.
As for the language requiring such participation on committees or task forces that
undertake planning, evaluation, or policy development tasks concerning educational programs,
I find this to be an innocuous attempt to broadly include all committees or task forces related to
educational programs. The language is descriptive, rather than limiting, and therefore I do not
find it to infringe upon the rights of the Tribe.
Other parts of the District's IPP impose additional duties upon the District to consult
parents and Indian tribes and involve them in planning and developing programs and activities.
As discussed above, I held that the second sentence of section 3.C. confers a mandatory duty
upon the District to hold joint meetings with the Tribe. These meetings are to be held in
October, in February, and at the board meeting in the spring. As the District notes, this schedule
is essentially similar to the schedule requested by the Tribe in the complaint that initiated these
proceedings. In light of this, and because both section 5 and the first sentence of section 3.C.
provide for additional joint meetings and consultations, I find that the District's IPP satisfies the
requirements of § 8004(a)(3).
Dissemination of relevant applications, evaluations, and program plans
Although the Tribe does not directly challenge the compliance of the District's IPP with
§ 8004(a)(4), which relates to the dissemination of relevant applications, evaluations, and
program plans, the Tribe indirectly challenges the District's dissemination of information
because of a perceived lack of opportunity for parental comments and recommendations.
§ 8004(a)(2). Therefore, the discussion above under that section, wherein I found that the
District's current IPP requires the District to provide substantial information to the Tribe and to
other interested parties and is in compliance with § 8004(a)(4), is equally applicable here.
Opportunity for parents and Indian tribes to present views regarding general educational program
Again, the discussion above relating to the Tribe's complaint that the District fails to
adequately provide opportunity for parental comments and recommendations is equally
The Tribe also alleges that the District has used the Indian Parent Education Committee
(PEC) as an intermediary or buffer between the Tribe and the District, rather than interacting
directly with a tribal representative. While the District's 1993 IPP provided for the PEC, that
committee is required by other statutes. In response to the Tribe's concerns on this matter as
expressed through various discussions between the parties, the IPP adopted in 1993 also
specifically provided for the use of a joint P.L. 81-874 committee to address issues related to the
District's funding under this statute. The Tribe subsequently indicated that it wanted to work
directly with the District, rather than through a committee. In accordance with the Tribe's
wishes, the joint P.L. 81-874 committee was removed from the IPP adopted on March 23, 1995,
which provides for consultation directly with Indian Tribes. Overall, the evidence does not
demonstrate that the District is using the PEC as a buffer between itself and the Tribe.
The Tribe also alleges that a draft of the 1995 IPP was delivered to them too late for
effective tribal review. In its November 29, 1994, letter to the Tribe, the District states that
because P.L. 81-874 had been replaced by P.L. 103-382, the District's IPP should be reviewed
for compliance. Although some of the communications from the District to the Tribe requested
responses within a relatively short time frame, both the letters themselves and the testimony of
witnesses at the hearing reveal that the District believed that after receipt of its blank impact aid
application form from the Department, the District had only 30 days to submit its completed
application, including its amended IPP. Under these circumstances, the District's request for
quick responses appears reasonable, and the Tribe appears to have been informed and involved
in the process of amending the District's procedures.
In sum, I find that the District's current actual practices are in compliance with both its IPP and the statutory and regulatory requirements. Nonetheless, despite the overall pattern of compliance with § 8004, one area of concern is the fact that no representatives of the Tribe were included on the District's most recent Strategic Planning Committee. In its reply brief, the District describes this as an oversight that it sincerely regrets. The District is strongly advised to prevent such oversights in the future.
Although frequently mentioned by the Tribe, I give little weight to the admitted minimal
compliance by the District with the procedures required by § 8004, and its predecessor, prior to
1993. During that era, both the District and the Tribe were ignorant of the legislative
requirements, and little can be accomplished by dwelling on that situation. However, with the
District's discovery of their non-compliance, followed by concerted efforts to adopt and
implement an appropriate IPP, I believe we must overlook the past and concentrate on current
attempts at compliance. From this vantage, I see a genuine desire by the District to meet the
requirements of § 8004, as exemplified by the several refinements of the District's IPP and its
application of these guidelines to its daily activities. Both parties are sincere in their concerns
for enhancing opportunities for Indian education and I commend both for the increased dialogue
between them. I was somewhat disappointed, however, that this dialogue appeared to cease with
the submission of the current complaint to the Assistant Secretary, because I see a continuation
of that dialogue process as the course with the most beneficial possibilities for both parties.
With regard to the conduct of each party, I think each can modify its present operations to take
account of the obligation for each to more fully appreciate the other party's needs and abilities.
To this end, the District must be more aware of the Indian presence and encourage more
input from the Tribe. This should include inviting a tribal presence in every committee and task
force created by the District, thus leaving it to the discretion of the Tribe as to whether it believes
it would be beneficial to have a representative participate in such a committee or task force.
Furthermore, the District should ensure that the Tribe is on every mailing/telephone list and is
contacted as much in advance as possible when District committee meetings are to be conducted.
Once again, the Tribe can decide which of those meetings a representative should attend.
Additionally, when the District is preparing revisions of the IPP, Impact Aid applications or
other relevant documents and Tribal input is expected to be sought, sending a draft of the
proposed document to the Tribe as far in advance as possible is another method by which the
Tribe and the District can garner the most thoughtful input and consideration of the proposal.
The mechanism to accomplish these recommendations is in existence; it only need be
The representatives of the Tribe are to be commended for their earnest desire and
unselfish devotion to securing the best education possible for their students. Here, too, there is
room for improvement. I believe they now acknowledge that the District does not have to
provide them with an Impact Aid funds accountability and recognize that these funds are
deposited in the District's general operating fund account to be spent as the District thinks best.
However, with respect to their requests for miscellaneous data, reports, and other such District
information, the Tribe appears to have the attitude that any such requests should be acted upon
immediately by the District and that anything short of that amounts to a repudiation of the
request. This reaction is not realistic, particularly when the District does not have the requested
data readily available or in the format the Tribe is requesting. This information exchange
process will only be improved when the Tribe becomes better educated on what reports the
District can provide with minimal effort and the District is informed of the true needs/desires of
the Tribe. To enhance this process, representatives of the two should meet to discuss what
information is desired, what information is now available, and what information programs can be
modified to meet the needs. The Tribe also needs to be sensitive to the additional workload
these information requests place on the District. Often these requests are new, additional
requirements for the District and for which current employees may not be trained or which
exceed the present scope of their duties. These problems, if they exist, must be identified and
brought to the attention of the Superintendent; the vehicle for this relay of information is already
included in the IPP. Overall, the Tribe should be both patient and persistent in its attempt to
provide input, as well as receive information, about the general education of the children of its
Judge Richard F. O'Hair
Issued: July 14, 1995
S E R V I C E
A copy of the attached document was sent to the following:
Assistant Secretary Thomas W. Payzant
Office of Elementary and Secondary Education
U.S. Department of Education
600 Independence Avenue, S.W.
Room 4000, PRTL
Washington, D.C. 20202-6100
A copy of the attached document was sent by CERTIFIED MAIL, RETURN RECEIPT
REQUESTED to the following:
Russell W. Busch, Esq.
Evergreen Legal Services
101 Yesler Way, Suite 301
Seattle, WA 98104
Clifford D. Foster, Jr., Esq.
Vandeberg Johnson & Gandara
1900 First Interstate Plaza
1201 Pacific Ave.
P.O. Box 1315
Tacoma, WA 98401-1315