9th Circuit considers Native American students' case against Bureau of Indian Education


By Lauraine Genota | 02/10/2022 05:00 AM EST

A three-judge panel questioned the Bureau of Indian Education's alleged failure to provide quality education to Native American students Wednesday, subtly challenging the agency's actions as part of a five-year legal battle.

"It's one thing to say, 'how do you operate a school?'” said Judge Susan P. Graber. It's another to show uncertainty about regulations, the judge added.

Graber commented during oral arguments in front of the 9th Circuit Court of Appeals for a lawsuit in which BIE was accused of failing to adequately provide for students on an Arizona reservation. The lawsuit was first filed in January 2017 by the Native American Disability Law Center and Public Counsel on behalf of students at Havasupai Elementary School, which sits on the Havasupai reservation at the bottom of the Grand Canyon.

“The relief that we're seeking is simply an injunction directing defendants to comply with their duties" under numerous federal statues and regulations, including the Indian Education Act, Kathryn Eidmann, supervising senior staff attorney at Public Counsel, said during the hearing.

The 1972 Indian Education Act, and subsequent regulations regarding the education of Native American students, outlines that the federal government must ensure that programs that serve Indigenous students are "of the highest quality." It also says programs must "provide not only for basic elementary and secondary educational needs, but also the unique educational and culturally related academic needs of these children" so that they can meet the same state academic standards as other students.

The lawsuit claimed that the only subject areas being taught at Havasupai Elementary School are math, reading and writing. "There is no science, history, social studies, foreign language, arts, or physical education curriculum. Nor does the School provide culturally relevant instruction, such as instruction in the Havasupai language," according to the suit.

Chief Judge Mary H. Murguia at one point asked Laura Myron, the attorney representing the Bureau of Indian Education, if what she’s arguing is that the government doesn’t want to comply with federal regulations because “they’re hard and we’ve tried, therefore, the court should treat them as broad institutional reform.”

Key context: In 2017, the Native American Disability Law Center and Public Counsel claimed that BIE failed to provide “for not only the basic elementary and secondary education needs of Native students, but also the unique educational and cultural academic needs of these children.”

A partial settlement reached in October 2020 resolved only the claims related to the education provided to students with disabilities. The settlement agreement didn’t affect two counts in the lawsuit that alleged the Bureau of Indian Education failed to provide basic education. A federal judge dismissed those claims, saying the plaintiffs didn't identify a distinct agency action to challenge.

In an appeal, Public Counsel, on behalf of HES students and the Native American Disability Law Center, is seeking the review of the district court's dismissal of the plaintiffs' claims that the BIE failed to provide basic general education, as well as the district court’s dismissal on standing and mootness grounds of several student plaintiffs.

What's next: Myron said the 9th Circuit could resolve the case in one of two ways: “Conclude that plaintiffs are asking for institutional programmatic relief and that is not available under [section 7061 of the Administrative Procedures Act]” or affirm the district court's decision that the “plaintiffs have not actually alleged a failure to comply with the regulations or refusal to apply the regulations.”

“What I'm suggesting is that, if you disagree with us on the first, it would be appropriate to remand for the district court to have an opportunity to consider the second,” Myron said.