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U.S. Department of the Interior - Office of Policy, Management and Budget
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2004 Reg Neg Workshop Facilitator's View

Lucy Moore

The Facts:

There are 186 schools in the country which are funded by the Bureau of Indian Affairs and designated for the education of Indian children. Over half of these are run by local school boards, communities or tribes; the rest are being managed by the BIA. These schools vary greatly in size, location, curriculum, student population and available resources. Some are boarding schools, some are day schools, some educate only elementary or only high school students, some educate K through 12. Some schools are boarding-only facilities, with students attending nearby public schools. The most remote school is located in the bottom of the Grand Canyon, with transportation only by mule or helicopter. Another school is in a suburb of a major metropolitan area, offering students both advantages and temptations. Some school budgets are supplemented by prosperous tribes, some are inadequate to meet the needs each year. Some schools serve a student population from one tribe; others serve students from many different tribes, making teaching of native culture and language a challenge.

Regulations governing this great variety of schools had not been revised in decades. In response to this need, The No Child Left Behind Act of 2001 required the Secretary of the Interior to develop regulations using negotiated rulemaking that address six areas of Indian education at these BIA-funded schools. These six areas are: (1) defining adequate yearly progress, which is the measurement for determining that schools are providing quality education; (2) establishing separate geographic attendance areas for Bureau-funded schools; (3) establishing a formula for determining the minimum amount necessary to fund Bureau-funded schools; (4) establishing a system of direct funding and support of all Bureau-funded schools, under the formula established in the Act; (5) establishing guidelines to ensure the Constitutional and civil rights of Indian students; and (6) establishing a method for administering grants to tribally controlled schools.

A Federal Register announced the consultation process, which gave tribal governments, communities and interested individuals the chance to comment on the six rules, and the negotiation process prior to the formation of the Negotiated Rulemaking Committee and the establishment of protocols. Between August 9 and September 9, 2002, the Bureau of Indian Affairs, Office of Indian Education Programs (OIEP) held fourteen regional consultations throughout Indian country. Organized by the BIA Education Line Officer(s) in each region, the meetings welcomed tribal officials, parents, teachers, administrators, educators, school board members, and students at Bureau-operated schools or Bureau-funded grant schools. Over 560 people attended these meetings. OIEP hired Lucy Moore to lead a team of facilitators to help design, facilitate and summarize each consultation meeting.

Following the release of a Convening Report summarizing the comments and themes from the consultation sessions, the Department of Interior took nominations for the 25 member Negotiated Rulemaking Advisory Committee. On May 1, 2003, the Secretary chartered the Committee under the Federal Advisory Committee Act (FACA), an act that calls for federal representatives and members of the public who will be affected by rules to jointly develop proposed rules. In this case, the Act required the Secretary of the Interior to select representatives of Indian tribes and Bureau-funded schools as well as federal government representatives to serve on the Committee. The selection process took several months, and membership announcements were made in May 2003. The Committee was comprised of 19 members nominated by Indian tribes and tribally operated schools. The law required that, to the maximum extent possible, the tribal representative membership should reflect the proportionate share of students from tribes served by the Bureau-funded school system. The Secretary also appointed to the Committee six members from within the Department of the Interior, three from Washington, DC, and three from the field.

The Committee's task was to draft six proposed rules to recommend to the Secretary. Rules, or parts of rules, which were reached by consensus would be forwarded to the Secretary without substantive changes. If consensus was not reached, the Secretary would have the power to develop recommendations on her own. Lucy Moore led the facilitation team and facilitated all plenary Committee meetings. Five other facilitators assisted with the four work groups which focused on drafting language for individual rules. The Committee met in five week-long sessions from June 2003 through October 2003. At its first meeting the Committee received negotiation skills training, negotiated protocols, and selected three tribal representatives and two federal representatives to serve as co-chairs. They also divided their tasks and membership into work groups, and began substantive work.

Each session was preceded by a Federal Register notice announcing the location and dates of the meeting and inviting members of the public to attend. All Committee and workgroup meetings were open to the public, and members of the public were allowed to make oral comments or to submit written comments and several points during each meeting. The workgroups prepared written products for review, revision and approval by the full Committee. Committee decisions were made by consensus. Summaries of each Committee meeting were prepared by the facilitator, distributed and corrected by Committee members, and then put on the OIEP website.

Consensus was reached on all six rules, and they were submitted as recommendations to the Secretary in November 2003. The rules were published in the Federal Register after review by OMB and legal staff, and the 120 public comment period will close in August 2004. The Committee will reconvene for the purpose of reviewing the public comments and will revise their recommendations to the Secretary at that time if they wish, and if they can reach consensus.

Challenges and Lessons:

 Time and Money: These regulations are a priority for the White House, and the Department was instructed to have the regulations in place for the school year 2004-2005. This created deadlines that at times seemed impossible to meet. Some parts of the process were very efficient, and others seemed to drag. The fourteen tribal consultation meetings in August and September 2002 went very smoothly, and the final assessment report was completed one month later. We were on track for a timely completion, assuming 3 months for Committee selection, 10 months for negotiations, and 10 months for various Department reviews, OMB review, and public comment periods. Committee selection, however, was not complete until May 2003, slipping the schedule seriously. The Committee meeting time was squeezed into the period from June through September 2003 B four months to negotiate six extremely complex rules, with a Committee representing diverse backgrounds in terms of culture, education, and negotiation experience.

As facilitator, I was convinced that it would be impossible to complete, or even begin, our task in four months, and that it would be grossly unfair B even insulting B to ask the Committee members to try. My experience, and that of my colleagues, was that these processes require a long period of time for many reasons B to build relationships, to understand the issues, to identify needed information, to negotiate and consult constituencies, to draft language, to reach consensus. The Department shared my concerns but was committed to moving forward on the compressed schedule. If there was any chance of success, this was going to take unconditional support from the Department in terms of funds, personnel, and visible commitment of top officials. Negotiations with the Department resulted in a plan which would enable the Committee to develop the six rules simultaneously in separate work groups. Each work group was assigned an experienced facilitator, appropriate resource people, including an attorney, and support staff, copying and word processing equipment. The Committee met for one week each month, and was given one extra meeting in October to finish up their work.

With support and commitment, this complex regulatory negotiation was completed in five months.

Commitment: One of the keys to the success of this regulatory negotiation was the commitment of the leadership at OIEP, BIA and the Department of the Interior. Key people believed in this process, and were dedicated to doing everything within their power to make it work. They demonstrated their commitment by making funds available and by giving their time and energy. The Designated Federal Official (DFO) created a Federal Team to shepherd the creation of the process. This team included those in high-level positions, who became part of the effort and made contributions at critical moments.

It was also critical to have the Department's commitment expressed publicly to the Committee and to the tribal community representatives who attended the Committee meetings. Aureen Martin, Acting Assistant Secretary for Indian Affairs, gave opening remarks and attended several of the meetings. Her presence, her words and her sincerity did much to build confidence and hope in the Committee. Unable to sit on the Committee herself, she appointed her chief assistant to represent her, another signal of her commitment. Secretary of Interior Norton also placed an attorney from her staff on the Committee.

Committee Selection: The Committee members were selected by the Secretary of the Interior, based on recommendations from her staff. The federal team met with the DFO and the lead facilitator to review the nominations submitted by tribes for the Committee and develop a list of recommendations. The law mandated that the representation on the Committee reflect as much as possible the proportion of students from each tribe attending these schools. This proved impossible, since the Committee was limited to 25, and there were over 100 tribes represented with students in schools. The largest block of students (39%) were Navajo, and there was an effort to reflect this ratio in the Committee membership. The other criteria required balancing interests, geography, gender, and insuring that each member had some knowledge of school regulations. The result was a Committee where each member was chosen to fill more than one criterion B a teacher, who was also a parent, and had a degree in social work; a tribal council member, who was also a bus driver and taught a Native language in an after school program, etc.

The Committee of 25 included 6 members who were considered part of a "federal team." Three of these worked at headquarters in Washington, DC, and three were BIA employees in the field. Although this made sense bureaucratically, there were moments, of course, when the team divided along other interests, just as with the "tribal side."

A Painful Legacy: The often painful history of federal/tribal relations was ever-present in the negotiations. In spite of efforts on both sides to demonstrate good faith and the best intentions, the level of trust for some was always in question. Past abuses by the US Government and specifically by the Bureau of Indian Affairs were in the front of some tribal members' minds, and on the tip of their tongues. It was difficult for them to sit at a negotiating table with those representing (in their eyes) past abuse. It was difficult for some on the federal side to hear accusations and expressions of grief for which they were not personally responsible. For some it was a condition of negotiation that the past be acknowledged and "have a seat at the table;" for others, it was an impediment, a diversion and an irritation.

One of the fallouts of this "successful compressed process" was the inability to resolve some of these trust issues. With more time, facilitators could have helped the members discuss and resolve the role of history in the process. As it was, when the issue came up, it was dealt with as sensitively as possible, but in as short a time as possible, which is not appropriate for a topic of this magnitude. There are those who would argue that total trust among all members could never have been developed, no matter how much time was available, and that going down that road is a waste of time anyway. Drafting regulations, they would say, is about today and tomorrow, not yesterday. I believe that somehow we need to make room for yesterday in tribal negotiations, and that this process may have fallen short.