www.ed.gov

400 MARYLAND AVE., SW, WASHINGTON, DC 20202

The Department of Education’s mission is to promote student achievement and preparation for global competitiveness by 

fostering educational excellence and ensuring equal access.

September 26, 2016 

Dear Colleague:

Thank you for your hard work and commitment in implementing the new requirements of the Every 

Student Succeeds Act (ESSA), the reauthorization of the Elementary and Secondary Education Act of 

1965 (ESEA). The ESSA represents a unique opportunity to increase equity and access for all children. I 

write today to offer guidance on a provision in the law that is of particular importance to our Nation’s 

tribal communities: the new requirement under section 8538 of the ESEA, as amended by the ESSA,1 for 

affected local educational agencies (LEAs) to consult with Indian tribes and tribal organizations on issues 

affecting Native students.2

 

Consultation will create opportunities for LEAs and tribal leaders to work together on behalf of American 

Indian and Alaska Native students. The consultation process will allow affected LEAs to gather input 

from Indian tribes and tribal organizations, fostering the collaboration that is a critical part of improving 

academic outcomes for Native students.

3

 

The enclosed Frequently Asked Questions provide basic information to assist LEAs in ensuring that this 

process drives positive outcomes for administrators, Indian tribes and tribal representatives, and, most 

importantly, Native students.

I look forward to continuing to work with you and your staff to address the needs of our Native students. 

Sincerely,

/s/

Ann Whalen 

Senior Advisor to the Secretary Delegated 

the Duties of Assistant Secretary for 

Elementary and Secondary Education

Enclosure 

1 Throughout this document, unless otherwise indicated, citations to the ESEA refer to the ESEA, as amended by the ESSA.

2 Under Title I, State educational agencies (SEAs) are also required to conduct timely and meaningful consultation with Indian 

tribes, among other entities, prior to submitting their State plan to the Secretary (ESEA section 1111(a)(1)(A)). 3 The U.S. Department of Education conducted tribal consultations on the changes to the ESEA generally, which included the 

SEA and LEA consultation requirements, with four meetings which took place on April 24, April 28, May 12, and June 27, 2016.

UNITED STATES DEPARTMENT OF EDUCATION

OFFICE OF ELEMENTARY AND SECONDARY EDUCATION

Under the Congressional Review Act, Congress has passed, and the President has signed, a resolution of disapproval of 

the accountability and State plans final regulations that were published on November 29, 2016 (81 FR 86076). This 

guidance document is unaffected by that resolution and remains applicable. 
1

Frequently Asked Questions

ESEA, Section 8538, CONSULTATION WITH INDIAN TRIBES AND TRIBAL 

ORGANIZATIONS

1. What are the consultation requirements under section 8538 of the ESEA1

?

In general, section 8538 requires affected local educational agencies (LEAs) (see Question 3 for 

definition of “affected LEA”) to consult with Indian tribes, or those tribal organizations approved by the 

tribes located in the area served by the LEA, prior to submitting a plan or application for covered 

programs (see Question 5 for more information on the programs covered by section 8538). This 

requirement is designed “to ensure timely and meaningful consultation on issues affecting American 

Indian and Alaska Native students.” The consultation must be done “in a manner and in such time that 

provides the opportunity for such appropriate officials from Indian tribes or tribal organizations to 

meaningfully and substantively contribute” to plans under covered programs.

2. When do the consultation requirements under section 8538 of the ESEA begin?

Consultation requirements under section 8538 of the ESEA begin with the plans or applications for fiscal 

year (FY) 2017 formula grant funding, or for the 2017-2018 school year. Affected LEAs (see Question 3) 

that educate American Indian/Alaska Native (AI/AN) students will be required to consult with local 

Indian tribes prior to submitting a plan or application under covered ESEA formula grant programs (see 

Question 5).

3. Which LEAs must consult with Indian tribes in accordance with section 8538 of the ESEA?

Under section 8538, an affected LEA is one that either: 1) has 50 percent or more of its student 

enrollment made up of AI/AN students; or 2) received an Indian education formula grant under Title VI 

of the ESEA, as amended by the ESSA1

, in the previous fiscal year that exceeds $40,000. In order to 

determine whether an LEA has 50 percent or more of its enrollment made up of AI/AN students, an LEA 

should use the enrollment data from the 2016-2017 school year to determine whether it is an affected 

LEA in FY 2017. The total AI/AN enrollment data would include those students who self-identify as 

AI/AN alone and AI/AN in combination with one or more races, regardless of Hispanic ethnicity. An 

LEA that receives an Indian education formula grant award greater than $40,000 in FY 2016 is an 

affected LEA for consultation purposes in FY 2017. Please contact Bernard Garcia, 

at bernard.garcia@ed.gov, Group Lead for Title VI Indian Education Formula Program, Office of Indian 

Education, OESE, for assistance in determining whether an LEA is an affected LEA under section 8538 

of the ESEA.

4. How can an LEA find information about tribes?

The Bureau of Indian Affairs (BIA) publishes an official list of federally recognized tribes each year. This 

list is available at the Title VI community of practice website under “Additional 

Resources”: https://easie.grads360.org/#communities/pdc/documents/9980. To find tribal addresses, see 

the list at the National Congress of American Indians (NCAI) website: http://www.ncai.org/tribaldirectory. If you need information about the tribes in your service area, contact your respective state 

office for assistance.

 1 Throughout this document, unless otherwise indicated, citations to the ESEA refer to the ESEA, as amended by the ESSA.
2

5. On which programs must an affected LEA consult with Indian tribes?

Beginning with FY 2017, affected LEAs must consult with Indian tribes before submitting plans or 

applications for the following programs under ESEA:

• Title I, Part A (Improving Basic Programs Operated by State and Local Educational Agencies)

• Title I, Part C (Education of Migratory Children)

• Title I, Part D (Prevention and Intervention Programs for Children and Youth who are Neglected, 

Delinquent, or At-Risk)

• Title II, Part A (Supporting Effective Instruction)

• Title III, Part A (English Language Acquisition, Language Enhancement, and Academic 

Achievement Act)

• Title IV, Part A (Student Support and Academic Enrichment Grants)

• Title IV, Part B (21st Century Community Learning Centers)

• Title V, Part B, subpart 2 (Rural and Low-Income School Program)

• Title VI, Part A, subpart 1 (Indian Education Formula Grants to Local Educational Agencies)

6. When should affected LEAs conduct the consultation required under section 8538 of the 

ESEA?

LEAs should conduct their consultation in advance of making significant decisions regarding plans or 

applications for covered programs, to ensure an “opportunity for . . . appropriate officials from Indian 

tribes or tribal organizations to meaningfully and substantively contribute” to an LEA’s plan (section 

8538(a)). The timeline for each consultation is dictated by requirements of the relevant formula grant 

program, which have different application deadlines. For example, a State may have a deadline for LEAs 

to submit a consolidated local plan to the State by a certain date in 2017, so for those programs the 

consultation must be completed before that date. Given that tribes may receive multiple requests for 

consultation, LEAs should consider arranging for informational meetings prior to consultation.

7. What should an LEA do to ensure “meaningful consultation”?

In order to ensure that consultation is meaningful, LEAs should provide Indian tribes, or those tribal 

organizations approved by the tribes located in the area served by the LEA, an opportunity to provide 

input and feedback to the LEA on plans for any covered program. An LEA should consider providing a 

list of issues or questions on which the LEA seeks input, or provide draft plans for this purpose, in 

advance of the consultation. An LEA should consult before it makes a final decision on significant and 

substantive issues related to the content of the plans. In addition, an LEA should consider providing 

written responses to tribal input received during consultation to explain how input was considered. 

8. What documentation is required for consultation with Indian tribes under section 8538 of 

the ESEA?

Each LEA must maintain in the agency’s records and, for State-administered ESEA programs, provide to 

the SEA, a written affirmation signed by the appropriate officials of the participating tribes (or tribal 

organizations approved by the tribes) that the required consultation occurred. If tribal officials do not 

provide such affirmation within a reasonable period of time, the LEA must forward to the SEA 

documentation that consultation has taken place.
3

9. May an LEA combine this consultation with other requirements regarding tribal or parent 

involvement?

Yes, an LEA may coordinate or consolidate the required ESEA consultation with the parent activities 

required under the Indian Education formula grant program, the Impact Aid program, and the Johnson 

O’Malley program. An LEA may only do so, however, if the activity in question – i.e., the consultation –

meets all of the requirements of each program. For example, an LEA may plan a public hearing or 

meeting with its local tribe regarding its education program generally in order to meet the Impact Aid 

requirements for Indian Policies and Procedures; that hearing with the tribe could incorporate the 

elements of the LEA’s proposed plans under the covered programs, rather than hold a separate 

consultation event. The LEA should involve the local tribe or tribes in planning the best approach that 

satisfies the needs of the tribe(s) and the LEA in a time-effective manner, and that meets the requirements 

of the various programs.

10. If an LEA has multiple tribes in the geographic area it serves, or if there is one tribe and 

multiple LEAs, must there be separate consultations with each tribe or LEA?

Where there are multiple tribes and a single LEA, the LEA may hold a consultation that includes all 

affected local tribes. Similarly, where there are multiple LEAs and one tribe, there is no federal 

prohibition against a joint consultation held by several LEAs. In both cases the LEA must ensure that the

tribe or tribes have a meaningful and timely opportunity to give input into an LEA’s plans or applications.

11. Can the Department provide additional information?

Yes, the Department may offer assistance or provide other information upon request. Please contact the 

Office of Indian Education (OIE) at IndianEducation@ed.gov.