Page 619 TITLE 25—INDIANS § 2505

1So in original.

for new construction if the tribal government or

other organization provides funding for the new

construction equal to at least one-fourth of the

total cost of such new construction. Where the

appropriations measure or the application submission does not stipulate a period for the work

covered by the funds so designated, the Secretary and the grantee shall consult and determine such a period prior to the transfer of funds:

Provided, That such period may be extended

upon mutual agreement.

(5) If the Secretary fails to make a determination within 180 days of a request filed by an Indian tribe or tribal organization to include in

such tribe or organization’s grant the funds described in subsection (a)(2) of this section, the

Secretary shall be deemed to have approved

such request and the Secretary shall immediately amend the grant accordingly. Such tribe

or organization may enforce its rights under

subsection (a)(2) of this section and this paragraph, including any denial of or failure to act

on such tribe or organization’s request, pursuant

to the disputes authority described in section

2508(e) of this title.

(Pub. L. 100–297, title V, §5205, Apr. 28, 1988, 102

Stat. 387; Pub. L. 100–427, §10(c), Sept. 9, 1988, 102

Stat. 1608; Pub. L. 101–301, §5(g), May 24, 1990, 104

Stat. 209; Pub. L. 102–119, §26(f), Oct. 7, 1991, 105

Stat. 607; Pub. L. 103–382, title III, §§382(a), (b),

394(m)(2), Oct. 20, 1994, 108 Stat. 4017, 4029.)

REFERENCES IN TEXT

The Education Amendments of 1978, referred to in

subsecs. (a)(1) and (b)(1), (3)(A)(iii), is Pub. L. 95–561,

Nov. 1, 1978, 92 Stat. 2143, as amended. Title XI of the

Act is classified principally to chapter 22 (§2001 et seq.)

of this title. Sections 1128 and 1128A of the Act were

classified to sections 2008 and 2008a, respectively, of

this title, prior to the general amendment of part B of

such title XI, which is classified to chapter 22 (§2001 et

seq.) of this title, by Pub. L. 103–382, title III, §381, Oct.

20, 1994, 108 Stat. 3979. Pub. L. 103–382 enacted new sections 1127, relating to allotment formulas, and 1128, relating to administrative cost grants, of the Act which

are classified to sections 2007 and 2008, respectively, of

this title. For complete classification of this Act to the

Code, see Short Title note set out under section 6301 of

Title 20, Education, and Tables.

The Elementary and Secondary Education Act of

1965, referred to in subsecs. (a)(3)(A) and (b)(2)(A),

(3)(A)(i), is Pub. L. 89–10, Apr. 11, 1965, 79 Stat. 27, as

amended generally by Pub. L. 103–382, title I, §101, Oct.

20, 1994, 108 Stat. 3519. Title I of the Act is classified

generally to subchapter I (§6301 et seq.) of chapter 70 of

Title 20. For complete classification of this Act to the

Code, see Short Title note set out under section 6301 of

Title 20 and Tables.

The Individuals with Disabilities Education Act, referred to in subsecs. (a)(3)(B) and (b)(2)(B), (3)(A)(ii), is

title VI of Pub. L. 91–230, Apr. 13, 1970, 84 Stat. 175, as

amended, which is classified generally to chapter 33

(§1400 et seq.) of Title 20. For complete classification of

this Act to the Code, see section 1400 of Title 20 and

Tables.

AMENDMENTS

1994—Subsecs. (a)(3)(A), (b)(2)(A), (3)(A)(i). Pub. L.

103–382, §394(m)(2), substituted ‘‘title I’’ for ‘‘chapter 1

of title I’’.

Subsec. (b)(4). Pub. L. 103–382, §382(a), substituted

‘‘were received, except that a school receiving a grant

under this chapter for facilities improvement and repair may use such grant funds for new construction if

the tribal government or other organization provides

funding for the new construction equal to at least onefourth of the total cost of such new construction’’ for

‘‘were received’’.

Subsec. (b)(5). Pub. L. 103–382, §382(b), added par. (5).

1991—Subsecs. (a)(3)(B), (b)(2)(B), (3)(A)(ii). Pub. L.

102–119 substituted ‘‘Individuals with Disabilities Education Act’’ for ‘‘Education of the Handicapped Act’’.

1990—Subsec. (a)(2). Pub. L. 101–301, §5(g)(1), amended

par. (2) generally. Prior to amendment, par. (2) read as

follows: ‘‘to the extent requested by such Indian tribe

or tribal organization, the total amount of funds provided from operations and maintenance accounts and

other facilities accounts for such schools for such fiscal

year under section 1126(d) of the Education Amendments of 1978 or under any other law, and’’.

Subsec. (b)(4). Pub. L. 101–301, §5(g)(2), added par. (4).

1988—Subsec. (b)(3)(A)(i). Pub. L. 100–427 inserted

‘‘chapter 1 of’’ before ‘‘title I’’.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 2503 of this title.

§ 2505. Eligibility for grants

(a) In general

(1) A tribally controlled school is eligible for

assistance under this chapter if the school—

(A) was, on April 28, 1988, a contract school

under title XI of the Education Amendments

of 1978 [25 U.S.C. 2001 et seq.] and the tribe or

tribal organization operating the school submits to the Secretary a written notice of election to receive a grant under this chapter,

(B) was a Bureau school under title XI of the

Education Amendments of 1978 and has met

the requirements of subsection (b) of this section,

(C) is a school for which the Bureau has not

provided funds, but which has met the requirements of subsection (c) of this section, or

(D) is a school with respect to which an election has been made under paragraph (2) and

which has met the requirements of subsection

(b) of this section.

(2) Any application which has been submitted

under the Indian Self-Determination and Education Assistance Act [25 U.S.C. 450 et seq.] by

an Indian tribe for a school which is not in operation on April 28, 1988, shall be reviewed under

the guidelines and regulations for applications

submitted under the Indian Self-Determination

and Education Assistance Act that were in effect at the time the application was submitted,

unless the Indian tribe or tribal organization

elects to have the application reviewed under

the provisions of subsection (b) of this section.

(b) Additional requirements for Bureau schools

and certain electing schools

(1) A school that was a Bureau funded school

under title XI of the Education Amendments of

1978 [25 U.S.C. 2001 et seq.] on April 28, 1988.,1 and

any school with respect to which an election is

made under subsection (a)(2) of this section,

meets the requirements of this subsection if—

(A) the Indian tribe or tribal organization

that operates, or desires to operate, the school

submits to the Secretary an application requesting that the Secretary—

(i) transfer operation of the school to the

Indian tribe or tribal organization, if the In-
§ 2505 TITLE 25—INDIANS Page 620

2See References in Text note below.

dian tribe or tribal organization is not already operating the school, and

(ii) make a determination of whether the

school is eligible for assistance under this

chapter, and

(B) the Secretary makes a determination

that the school is eligible for assistance under

this chapter.

(2)(A) By no later than the date that is 120

days after the date on which an application is

submitted to the Secretary under paragraph

(1)(A), the Secretary shall determine—

(i) if the school is not being operated by the

Indian tribe or tribal organization, whether to

transfer operation of the school to the Indian

tribe or tribal organization, and

(ii) whether the school is eligible for assistance under this chapter.

(B) In considering applications submitted

under paragraph (1)(A), the Secretary—

(i) shall transfer operation of the school to

the Indian tribe or tribal organization, if the

Indian tribe or tribal organization is not already operating the school, and

(ii) shall determine that the school is eligible for assistance under this chapter,

unless the Secretary finds by clear and convincing evidence that the services to be provided by

the Indian tribe or tribal organization will be

deleterious to the welfare of the Indians served

by the school.

(C) In considering applications submitted

under paragraph (1)(A), the Secretary shall consider whether the Indian tribe or tribal organization would be deficient in operating the school

with respect to—

(i) equipment,

(ii) bookkeeping and accounting procedures,

(iii) substantive knowledge of operating the

school,

(iv) adequately trained personnel, or

(v) any other necessary components in the

operation of the school.

(c) Additional requirements for school which is

not a Bureau funded school

(1) A school which is not a Bureau funded

school under title XI of the Education Amendments of 1978 [25 U.S.C. 2001 et seq.] meets the

requirements of this subsection if—

(A) the Indian tribe or tribal organization

that operates, or desires to operate, the school

submits to the Secretary an application requesting a determination by the Secretary of

whether the school is eligible for assistance

under this chapter, and

(B) the Secretary makes a determination

that the school is eligible for assistance under

this chapter.

(2)(A) By no later than the date that is 180

days after the date on which an application is

submitted to the Secretary under paragraph

(1)(A), the Secretary shall determine whether

the school is eligible for assistance under this

chapter.

(B) In making the determination under subparagraph (A), the Secretary shall give equal

consideration to each of the following factors:

(i) with respect to the applicant’s proposal—

(I) the adequacy of facilities or the potential to obtain or provide adequate facilities;

(II) geographic and demographic factors in

the affected areas;

(III) adequacy of applicant’s program

plans;

(IV) geographic proximity of comparable

public education; and

(V) the needs as expressed by all affected

parties, including but not limited to students, families, tribal governments at both

the central and local levels, and school organizations; and

(ii) with respect to all education services already available—

(I) geographic and demographic factors in

the affected areas;

(II) adequacy and comparability of programs already available;

(III) consistency of available programs

with tribal education codes or tribal legislation to education; and

(IV) the history and success of these services for the proposed population to be

served, as determined from all factors and

not just standardized examination performance.

(C) The Secretary may not make a determination under this paragraph that is primarily

based upon the geographic proximity of comparable public education.

(D) Applications submitted under paragraph

(1)(A) shall include information on the factors

described in subparagraph (B)(i), but the applicant may also provide the Secretary such information relative to the factors described in subparagraph (B)(ii) as the applicant considers appropriate.

(E) If the Secretary fails to make a determination under subparagraph (A) with respect to an

application within 180 days after the date on

which the Secretary received the application,

the Secretary shall be treated as having made a

determination that the tribally controlled

school is eligible for assistance under the title 2

and the grant shall become effective 18 months

after the date on which the Secretary received

the application, or an earlier date, at the Secretary’s discretion.

(d) Applications and reports

(1) All applications and reports submitted to

the Secretary under this chapter, and any

amendments to such applications or reports,

shall be filed with the agency or area education

officer designated by the Director of the Office

of Indian Education of the Bureau of Indian Affairs. The date on which such filing occurs shall,

for purposes of this chapter, be treated as the

date on which the application or amendment is

submitted to the Secretary.

(2) Any application that is submitted under

this chapter shall be accompanied by a document indicating the action taken by the tribal

governing body in authorizing such application.

(e) Effective date for approved applications

Except as provided in subsection (c)(2)(E) of

this section, a grant provided under this chap-
Page 621 TITLE 25—INDIANS § 2506

1See References in Text note below.

ter, and any transfer of the operation of a Bureau school made under subsection (b) of this

section, shall become effective beginning with

the academic year succeeding the fiscal year in

which the application for the grant or transfer is

made, or at an earlier date determined by the

Secretary.

(f) Denial of applications

(1) Whenever the Secretary declines to provide

a grant under this chapter, to transfer operation

of a Bureau school under subsection (b) of this

section, or determines that a school is not eligible for assistance under this chapter, the Secretary shall—

(A) state the objections in writing to the

tribe or tribal organization within the allotted

time,

(B) provide assistance to the tribe or tribal

organization to overcome all stated objections,

(C) provide the tribe or tribal organization a

hearing on the record, under the same rules

and regulations that apply under the Indian

Self-Determination and Education Assistance

Act [25 U.S.C. 450 et seq.], and

(D) provide an opportunity to appeal the objection raised.

(2) The Secretary shall reconsider any amended application submitted under this chapter

within 60 days after the amended application is

submitted to the Secretary.

(g) Report

The Bureau shall submit an annual report to

the Congress on all applications received, and

actions taken (including the costs associated

with such actions), under this section at the

same time that the President is required to submit to the Congress the budget under section

1105 of title 31.

(Pub. L. 100–297, title V, §5206, Apr. 28, 1988, 102

Stat. 388; Pub. L. 100–427, §11, Sept. 9, 1988, 102

Stat. 1608.)

REFERENCES IN TEXT

The Education Amendments of 1978, referred to in

subsecs. (a)(1)(A), (B), (b)(1), and (c)(1), is Pub. L. 95–561,

Nov. 1, 1978, 92 Stat. 2143, as amended. Title XI of the

Education Amendments of 1978 is classified principally

to chapter 22 (§2001 et seq.) of this title. For complete

classification of this Act to the Code, see Short Title

note set out under section 6301 of Title 20, Education,

and Tables.

The Indian Self-Determination and Education Assistance Act, referred to in subsecs. (a)(2) and (f)(1)(C), is

Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2203, as amended,

which is classified principally to subchapter II (§450 et

seq.) of chapter 14 of this title. For complete classification of this Act to the Code, see Short Title note set

out under section 450 of this title and Tables.

The title, referred to in subsec. (c)(2)(D), probably

should be ‘‘this part’’, meaning part B of title V of Pub.

L. 100–297, known as the Tribally Controlled Schools

Act of 1988, which is classified generally to this chapter. For complete classification of part B to the Code,

see Short Title note set out under section 2501 of this

title and Tables.

AMENDMENTS

1988—Subsec. (a)(1)(A), (B). Pub. L. 100–427, §11(a),

amended subpars. (A) and (B) generally. Prior to

amendment, subpars. (A) and (B) read as follows:

‘‘(A) was, on April 28, 1988, a school which received

funds under the authority of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450,

et seq.),

‘‘(B) was a school operated (as either an elementary

or secondary school or a combined program) by the Bureau and has met the requirements of subsection (b) of

this section,’’.

Subsec. (b)(1). Pub. L. 100–427, §11(b), in introductory

provisions, substituted ‘‘A school that was a Bureau

funded school under title XI of the Education Amendments of 1978 on April 28, 1988.’’ for ‘‘Any school that

was operated as a Bureau school on April 28, 1988’’.

Subsec. (c). Pub. L. 100–427, §11(c), substituted

‘‘school which is not Bureau funded school’’ for

‘‘schools that have not received Bureau funds’’ in heading and substituted ‘‘A school which is not a Bureau

funded school under title XI of the Education Amendments of 1978’’ for ‘‘A school for which the Bureau has

not provided funds’’ in par. (1).

Subsec. (d)(1). Pub. L. 100–427, §11(d), substituted ‘‘Bureau of Indian Affairs’’ for ‘‘Department of Education’’.

Subsec. (f)(1)(C). Pub. L. 100–427, §11(e), inserted ‘‘on

the record’’ after ‘‘hearing’’.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 2506 of this title.

§ 2506. Duration of eligibility determination

(a) In general

If the Secretary determines that a tribally

controlled school is eligible for assistance under

this chapter, the eligibility determination shall

remain in effect until the determination is revoked by the Secretary, and the requirements of

subsection (b) or (c) of section 2505 of this title,

if applicable, shall be considered to have been

met with respect to such school until the eligibility determination is revoked by the Secretary.

(b) Annual reports

Each recipient of a grant provided under this

chapter shall submit to the Secretary and to the

tribal governing body (within the meaning of

section 1121(j) 1 of the Education Amendments of

1978) of the tribally controlled school an annual

report that shall be limited to—

(1) an annual financial statement reporting

revenue and expenditures as defined by the

cost accounting established by the grantee;

(2) a biannual financial audit conducted pursuant to the standards of the Single Audit Act

of 1984 [31 U.S.C. 7501 et seq.];

(3) an annual submission to the Secretary of

the number of students served and a brief description of programs offered under the grant;

and

(4) a program evaluation conducted by an

impartial entity, to be based on the standards

established for purposes of subsection

(c)(1)(A)(ii) of this section.

(c) Revocation of eligibility

(1)(A) The Secretary shall not revoke a determination that a school is eligible for assistance

under this chapter if—

(i) the Indian tribe or tribal organization

submits the reports required under subsection

(b) of this section with respect to the school,

and

(ii) at least one of the following subclauses

applies with respect to the school: