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sistance Act that are in effect on the date that the tribal
governing body submits the application for the grant under
subsection (c). The Secretary shall not impose any terms,
conditions, or requirements on the provision of grants under
this section that are not specified in this section.
‘‘(g) AUTHORIZATION OF APPROPRIATIONS.—For the
purpose of carrying out this section, there are authorized
to be appropriated $2,000,000 for fiscal year 2002 and such
sums as may be necessary for each of fiscal years 2003,
2004, 2005, and 2006.
‘‘SEC. 1139. DEFINITIONS.
‘‘In this part, unless otherwise specified:
‘‘(1) AGENCY SCHOOL BOARD.—
‘‘(A) IN GENERAL.—Except as provided in
subparagraph (B), the term ‘agency school board’
means a body, for which—
‘‘(i) the members are appointed by all
of the school boards of the schools located
within an agency, including schools oper-
ated under contracts or grants; and
‘‘(ii) the number of such members shall
be determined by the Secretary in consulta-
tion with the affected tribes.
‘‘(B) EXCEPTIONS.—In the case of an agen-
cy serving a single school, the school board of
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such school shall be considered to be the agency
school board. In the case of an agency serving a
school or schools operated under a contract or
grant, at least 1 member of the body described in
subparagraph (A) shall be from such a school.
‘‘(2) BUREAU.—The term ‘Bureau’ means the
Bureau of Indian Affairs of the Department of the In-
terior.
‘‘(3) BUREAU FUNDED SCHOOL.—The term ‘Bu-
reau funded school’ means—
‘‘(A) a Bureau school;
‘‘(B) a contract or grant school; or
‘‘(C) a school for which assistance is pro-
vided under the Tribally Controlled Schools Act
of 1988.
‘‘(4) BUREAU
SCHOOL.—The term ‘Bureau
school’ means—
‘‘(A) a Bureau operated elementary school
or secondary school that is a day or boarding
school; or
‘‘(B) a Bureau operated dormitory for stu-
dents attending a school other than a Bureau
school.
‘‘(5) COMPLEMENTARY
EDUCATIONAL
FACILI-
TIES.—The term ‘complementary educational facili-
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ties’ means educational program functional spaces in-
cluding a library, gymnasium, and cafeteria.
‘‘(6) CONTRACT OR GRANT SCHOOL.—The term
‘contract or grant school’ means an elementary school,
secondary school, or dormitory that receives financial
assistance for its operation under a contract, grant,
or agreement with the Bureau under section 102,
103(a), or 208 of the Indian Self-Determination and
Education Assistance Act, or under the Tribally Con-
trolled Schools Act of 1988.
‘‘(7) DIRECTOR.—The term ‘Director’ means the
Director of the Office of Indian Education Programs.
‘‘(8) EDUCATION LINE OFFICER.—The term ‘edu-
cation line officer’ means a member of the education
personnel under the supervision of the Director of the
Office, whether located in a central, area, or agency
office.
‘‘(9) FINANCIAL
PLAN.—The term ‘financial
plan’ means a plan of services provided by each Bu-
reau school.
‘‘(10) INDIAN ORGANIZATION.—The term ‘Indian
organization’ means any group, association, partner-
ship, corporation, or other legal entity owned or con-
trolled by a federally recognized Indian tribe or
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tribes, or a majority of whose members are members
of federally recognized tribes.
‘‘(11) INHERENTLY FEDERAL FUNCTIONS.—The
term ‘inherently Federal functions’ means functions
and responsibilities which, under section 1125(c), are
non-contractible, including—
‘‘(A) the allocation and obligation of Fed-
eral funds and determinations as to the amounts
of expenditures;
‘‘(B) the administration of Federal per-
sonnel laws for Federal employees;
‘‘(C) the administration of Federal con-
tracting and grant laws, including the moni-
toring and auditing of contracts and grants in
order to maintain the continuing trust, pro-
grammatic, and fiscal responsibilities of the Sec-
retary;
‘‘(D) the conducting of administrative hear-
ings and deciding of administrative appeals;
‘‘(E) the determination of the Secretary’s
views and recommendations concerning adminis-
trative appeals or litigation and the representa-
tion of the Secretary in administrative appeals
and litigation;
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‘‘(F) the issuance of Federal regulations and
policies as well as any documents published in
the Federal Register;
‘‘(G) reporting to Congress and the Presi-
dent;
‘‘(H) the formulation of the Secretary’s and
the President’s policies and their budgetary and
legislative recommendations and views; and
‘‘(I) the non-delegable statutory duties of the
Secretary relating to trust resources.
‘‘(12) LOCAL EDUCATIONAL AGENCY.—The term
‘local educational agency’ means a board of education
or other legally constituted local school authority hav-
ing administrative control and direction of free public
education in a county, township, or independent or
other school district located within a State, and in-
cludes any State agency that directly operates and
maintains facilities for providing free public edu-
cation.
‘‘(13) LOCAL SCHOOL BOARD.—The term ‘local
school board’, when used with respect to a Bureau
school, means a body chosen in accordance with the
laws of the tribe to be served or, in the absence of such
laws, elected by the parents of the Indian children at-
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tending the school, except that, for a school serving a
substantial number of students from different tribes—
‘‘(A) the members of the body shall be ap-
pointed by the tribal governing bodies of the
tribes affected; and
‘‘(B) the number of such members shall be
determined by the Secretary in consultation with
the affected tribes.
‘‘(14) OFFICE.—The term ‘Office’ means the Of-
fice of Indian Education Programs within the Bu-
reau.
‘‘(15) REGULATION.—The term ‘‘regulation’’
means any part of a statement of general or par-
ticular applicability of the Secretary designed to
carry out, interpret, or prescribe law or policy in car-
rying out this Act.
‘‘(16) SECRETARY.—The term ‘Secretary’ means
the Secretary of the Interior.
‘‘(17) 
SUPERVISOR.—The 
term 
‘supervisor’
means the individual in the position of ultimate au-
thority at a Bureau school.
‘‘(18) TRIBAL
GOVERNING
BODY.—The term
‘tribal governing body’ means, with respect to any
school, the tribal governing body, or tribal governing
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bodies, that represent at least 90 percent of the stu-
dents served by such school.
‘‘(19) TRIBE.—The term ‘tribe’ means any In-
dian tribe, band, nation, or other organized group or
community, including an Alaska Native Regional
Corporation or Village Corporation (as defined in or
established pursuant to the Alaska Native Claims Set-
tlement Act), which is recognized as eligible for the
special programs and services provided by the United
States to Indians because of their status as Indians.’’.
Subtitle B—Tribally Controlled
Schools Act of 1988
SEC. 1221. TRIBALLY CONTROLLED SCHOOLS.
Sections 5202 through 5213 of the Tribally Controlled
Schools Act of 1988 (25 U.S.C. 2501 et seq.) are amended
to read as follows:
‘‘SEC. 5202. FINDINGS.
‘‘Congress, after careful review of the Federal Govern-
ment’s historical and special legal relationship with, and
resulting responsibilities to, Indians, finds that—
‘‘(1) the Indian Self-Determination and Edu-
cation Assistance Act, which was a product of the le-
gitimate aspirations and a recognition of the inherent
authority of Indian nations, was and is a crucial
positive step towards tribal and community control;
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‘‘(2) because of the Bureau of Indian Affairs’ ad-
ministration and domination of the contracting proc-
ess under such Act, Indians have not been provided
with the full opportunity to develop leadership skills
crucial to the realization of self-government and have
been denied an effective voice in the planning and im-
plementation of programs for the benefit of Indians
that are responsive to the true needs of Indian com-
munities;
‘‘(3) Indians will never surrender their desire to
control their relationships both among themselves and
with non-Indian governments, organizations, and
persons;
‘‘(4) true self-determination in any society of
people is dependent upon an educational process that
will ensure the development of qualified people to ful-
fill meaningful leadership roles;
‘‘(5) the Federal administration of education for
Indian children have not effected the desired level of
educational achievement or created the diverse oppor-
tunities and personal satisfaction that education can
and should provide;
‘‘(6) true local control requires the least possible
Federal interference; and
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‘‘(7) the time has come to enhance the concepts
made manifest in the Indian Self-Determination and
Education Assistance Act.
‘‘SEC. 5203. DECLARATION OF POLICY.
‘‘(a) RECOGNITION.—Congress recognizes the obliga-
tion of the United States to respond to the strong expression
of the Indian people for self-determination by assuring
maximum Indian participation in the direction of edu-
cational services so as to render the persons administering
such services and the services themselves more responsive to
the needs and desires of Indian communities.
‘‘(b) COMMITMENT.—Congress declares its commitment
to the maintenance of the Federal Government’s unique and
continuing trust relationship with and responsibility to the
Indian people through the establishment of a meaningful
Indian self-determination policy for education that will
deter further perpetuation of Federal bureaucratic domina-
tion of programs.
‘‘(c) NATIONAL GOAL.—Congress declares that a major
national goal of the United States is to provide the re-
sources, processes, and structure that will enable tribes and
local communities to obtain the quantity and quality of
educational services and opportunities that will permit In-
dian children—
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‘‘(1) to compete and excel in the life areas of
their choice; and
‘‘(2) to achieve the measure of self-determination
essential to their social and economic well-being.
‘‘(d) EDUCATIONAL NEEDS.—Congress affirms—
‘‘(1) the reality of the special and unique edu-
cational needs of Indian people, including the need
for programs to meet the linguistic and cultural aspi-
rations of Indian tribes and communities; and
‘‘(2) that the needs may best be met through a
grant process.
‘‘(e) FEDERAL RELATIONS.—Congress declares a com-
mitment to the policies described in this section and sup-
port, to the full extent of congressional responsibility, for
Federal relations with the Indian nations.
‘‘(f) TERMINATION.—Congress repudiates and rejects
House Concurrent Resolution 108 of the 83d Congress and
any policy of unilateral termination of Federal relations
with any Indian Nation.
‘‘SEC. 5204. GRANTS AUTHORIZED.
‘‘(a) IN GENERAL.—
‘‘(1) ELIGIBILITY.—The Secretary shall provide
grants to Indian tribes and tribal organizations
that—
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‘‘(A) operate contract schools under title XI
of the Education Amendments of 1978 and no-
tify the Secretary of their election to operate the
schools with assistance under this part rather
than continuing to operate such schools as con-
tract schools under such title;
‘‘(B) operate other tribally controlled schools
eligible for assistance under this part and submit
applications (which are approved by their tribal
governing bodies) to the Secretary for such
grants; or
‘‘(C) elect to assume operation of Bureau
funded schools with the assistance provided
under this part and submit applications (which
are approved by their tribal governing bodies) to
the Secretary for such grants.
‘‘(2) DEPOSIT OF FUNDS.—Funds made avail-
able through a grant provided under this part shall
be deposited into the general operating fund of the
tribally controlled school with respect to which the
grant is made.
‘‘(3) USE OF FUNDS.—
‘‘(A) EDUCATION
RELATED
ACTIVITIES.—
Except as otherwise provided in this paragraph,
funds made available through a grant provided
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under this part shall be used to defray, at the
discretion of the school board of the tribally con-
trolled school with respect to which the grant is
provided, any expenditures for education related
activities for which the grant may be used under
the laws described in section 5205(a), or any
similar activities, including expenditures for—
‘‘(i) school operations, and academic,
educational, residential, guidance and coun-
seling, and administrative purposes; and
‘‘(ii) support services for the school, in-
cluding transportation.
‘‘(B) OPERATIONS AND MAINTENANCE EX-
PENDITURES.—Funds made available through a
grant provided under this part may, at the dis-
cretion of the school board of the tribally con-
trolled school with respect to which such grant is
provided, be used to defray operations and main-
tenance expenditures for the school if any funds
for the operation and maintenance of the school
are allocated to the school under the provisions
of any of the laws described in section 5205(a).
‘‘(4) WAIVER OF FEDERAL TORT CLAIMS ACT.—
Notwithstanding section 314 of the Department of In-
terior and Related Agencies Appropriations Act, 1991
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(Public Law 101–512), the Federal Tort Claims Act
shall not apply to a program operated by a tribally
controlled school if the program is not funded by the
Federal agency. Nothing in the preceding sentence
shall be construed to apply to—
‘‘(A) the employees of the school involved;
and
‘‘(B) any entity that enters into a contract
with a grantee under this section.
‘‘(b) LIMITATIONS.—
‘‘(1) 1 GRANT PER TRIBE OR ORGANIZATION PER
FISCAL YEAR.—Not more than 1 grant may be pro-
vided under this part with respect to any Indian
tribe or tribal organization for any fiscal year.
‘‘(2) NONSECTARIAN USE.—Funds made avail-
able through any grant provided under this part may
not be used in connection with religious worship or
sectarian instruction.
‘‘(3) 
ADMINISTRATIVE
COSTS
LIMITATION.—
Funds made available through any grant provided
under this part may not be expended for administra-
tive cost (as defined in section 1127(a) of the Edu-
cation Amendments of 1978) in excess of the amount
generated for such cost under the formula established
in section 1127 of such Act.
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‘‘(c) LIMITATION ON TRANSFER OF FUNDS AMONG
SCHOOL SITES.—
‘‘(1) IN GENERAL.—In the case of a recipient of
a grant under this part that operates schools at more
than 1 school site, the grant recipient may expend not
more than the lesser of—
‘‘(A) 10 percent of the funds allocated for
such school site, under section 1126 of the Edu-
cation Amendments of 1978; or
‘‘(B) $400,000 of such funds;
at any other school site.
‘‘(2) DEFINITION OF SCHOOL SITE.—In this sub-
section, the term ‘school site’ means the physical loca-
tion and the facilities of an elementary or secondary
educational or residential program operated by, or
under contract or grant with, the Bureau for which
a discrete student count is identified under the fund-
ing formula established under section 1126 of the
Education Amendments of 1978.
‘‘(d) NO REQUIREMENT TO ACCEPT GRANTS.—Noth-
ing in this part may be construed—
‘‘(1) to require a tribe or tribal organization to
apply for or accept; or
‘‘(2) to allow any person to coerce any tribe or
tribal organization to apply for, or accept,
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a grant under this part to plan, conduct, and administer
all of, or any portion of, any Bureau program. The submis-
sion of such applications and the timing of such applica-
tions shall be strictly voluntary. Nothing in this part may
be construed as allowing or requiring the grant recipient
to make any grant under this part to any other entity.
‘‘(e) NO EFFECT
ON FEDERAL RESPONSIBILITY.—
Grants provided under this part shall not terminate, mod-
ify, suspend, or reduce the responsibility of the Federal Gov-
ernment to provide an educational program.
‘‘(f) RETROCESSION.—
‘‘(1) IN GENERAL.—Whenever a tribal governing
body requests retrocession of any program for which
assistance is provided under this part, such retroces-
sion shall become effective on a date specified by the
Secretary that is not later than 120 days after the
date on which the tribal governing body requests the
retrocession. A later date may be specified if mutually
agreed upon by the Secretary and the tribal governing
body. If such a program is retroceded, the Secretary
shall provide to any Indian tribe served by such pro-
gram at least the same quantity and quality of serv-
ices that would have been provided under such pro-
gram at the level of funding provided under this part
prior to the retrocession.
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‘‘(2) STATUS AFTER RETROCESSION.—The tribe
requesting retrocession shall specify whether the ret-
rocession relates to status as a Bureau operated school
or as a school operated under a contract under the In-
dian Self-Determination Act.
‘‘(g) TRANSFER OF EQUIPMENT AND MATERIALS.—
Except as otherwise determined by the Secretary, the tribe
or tribal organization operating the program to be
retroceded shall transfer to the Secretary (or to the tribe
or tribal organization that will operate the program as a
contract school) the existing property and equipment that
were acquired—
‘‘(1) with assistance under this part; or
‘‘(2) upon assumption of operation of the pro-
gram under this part if the school was a Bureau
funded school before receiving assistance under this
part.
‘‘(h) PROHIBITION OF TERMINATION FOR ADMINISTRA-
TIVE CONVENIENCE.—Grants provided under this part may
not be terminated, modified, suspended, or reduced solely
for the convenience of the administering agency.
‘‘SEC. 5205. COMPOSITION OF GRANTS.
‘‘(a) IN GENERAL.—The funds made available through
a grant provided under this part to an Indian tribe or trib-
al organization for any fiscal year shall consist of—
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‘‘(1) the total amount of funds allocated for such
fiscal year under sections 1126 and 1127 of the Edu-
cation Amendments of 1978 with respect to the trib-
ally controlled school eligible for assistance under this
part that is operated by such Indian tribe or tribal
organization, including funds provided under such
sections, or under any other provision of law, for
transportation costs for such school;
‘‘(2) to the extent requested by such Indian tribe
or tribal organization, the total amount of funds pro-
vided from operations and maintenance accounts and,
notwithstanding section 105 of the Indian Self-Deter-
mination and Education Assistance Act or any other
provision of law, other facilities accounts for such
school for such fiscal year (including accounts for fa-
cilities referred to in section 1125(e) of the Education
Amendments of 1978 or any other law); and
‘‘(3) the total amount of funds that are allocated
to such school for such fiscal year under—
‘‘(A) title I of the Elementary and Sec-
ondary Education Act of 1965;
‘‘(B) the Individuals with Disabilities Edu-
cation Act; and
‘‘(C) any other Federal education law.
‘‘(b) SPECIAL RULES.—
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‘‘(1) IN GENERAL.—
‘‘(A) APPLICABLE PROVISIONS.—Funds al-
located to a tribally controlled school by reason
of paragraph (1) or (2) of subsection (a) shall be
subject to the provisions of this part and shall
not be subject to any additional restriction, pri-
ority, or limitation that is imposed by the Bu-
reau with respect to funds provided under—
‘‘(i) title I of the Elementary and Sec-
ondary Education Act of 1965;
‘‘(ii) the Individuals with Disabilities
Education Act; or
‘‘(iii) any Federal education law other
than title XI of the Education Amendments
of 1978.
‘‘(B) OTHER BUREAU REQUIREMENTS.—In-
dian tribes and tribal organizations to which
grants are provided under this part, and tribally
controlled schools for which such grants are pro-
vided, shall not be subject to any requirements,
obligations, restrictions, or limitations imposed
by the Bureau that would otherwise apply solely
by reason of the receipt of funds provided under
any law referred to in clause (i), (ii) or (iii) of
subparagraph (A).
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‘‘(2) 
SCHOOLS
CONSIDERED
CONTRACT
SCHOOLS.—Tribally controlled schools for which
grants are provided under this part shall be treated
as contract schools for the purposes of allocation of
funds under sections 1125(e), 1126, and 1127 of the
Education Amendments of 1978.
‘‘(3) 
SCHOOLS
CONSIDERED
BUREAU
SCHOOLS.—Tribally controlled schools for which
grants are provided under this part shall be treated
as Bureau schools for the purposes of allocation of
funds provided under—
‘‘(A) title I of the Elementary and Sec-
ondary Education Act of 1965;
‘‘(B) the Individuals with Disabilities Edu-
cation Act; and
‘‘(C) any other Federal education law, that
are distributed through the Bureau.
‘‘(4) ACCOUNTS; USE OF CERTAIN FUNDS.—
‘‘(A) 
SEPARATE
ACCOUNT.—Notwith-
standing section 5204(a)(2), with respect to
funds from facilities improvement and repair,
alteration and renovation (major or minor),
health and safety, or new construction accounts
included in the grant provided under section
5204(a), the grant recipient shall maintain a
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separate account for such funds. At the end of the
period designated for the work covered by the
funds received, the grant recipient shall submit
to the Secretary a separate accounting of the
work done and the funds expended. Funds re-
ceived from those accounts may only be used for
the purpose for which the funds were appro-
priated and for the work encompassed by the ap-
plication or submission for which the funds were
received.
‘‘(B) REQUIREMENTS FOR PROJECTS.—
‘‘(i) REGULATORY
REQUIREMENTS.—
With respect to a grant to a tribally con-
trolled school under this part for new con-
struction or facilities improvements and re-
pair in excess of $100,000, such grant shall
be subject to the Administrative and Audit
Requirements and Cost Principles for As-
sistance Programs contained in part 12 of
title 43, Code of Federal Regulations.
‘‘(ii) 
EXCEPTION.—Notwithstanding
clause (i), grants described in such clause
shall not be subject to section 12.61 of title
43, Code of Federal Regulations. The Sec-
retary and the grantee shall negotiate and
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determine a schedule of payments for the
work to be performed.
‘‘(iii) APPLICATIONS.—In considering
applications for a grant described in clause
(i), the Secretary shall consider whether the
Indian tribe or tribal organization involved
would be deficient in assuring that the con-
struction projects under the proposed grant
conform to applicable building standards
and codes and Federal, tribal, or State
health and safety standards as required
under section 1124 of the Education
Amendments of 1978 (25 U.S.C. 2005(a))
with respect to organizational and financial
management capabilities.
‘‘(iv) DISPUTES.—Any disputes be-
tween the Secretary and any grantee con-
cerning a grant described in clause (i) shall
be subject to the dispute provisions con-
tained in section 5209(e).
‘‘(C) 
NEW
CONSTRUCTION.—Notwith-
standing subparagraph (A), a school receiving a
grant under this part for facilities improvement
and repair may use such grant funds for new
construction if the tribal governing body or trib-
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al organization that submits the application for
the grant provides funding for the new construc-
tion equal to at least 25 percent of the total cost
of such new construction.
‘‘(D) PERIOD.—Where the appropriations
measure under which the funds described in sub-
paragraph (A) are made available or the appli-
cation submitted for the funds does not stipulate
a period for the work covered by the funds, the
Secretary and the grant recipient shall consult
and determine such a period prior to the transfer
of the funds. A period so determined may be ex-
tended upon mutual agreement of the Secretary
and the grant recipient.
‘‘(5) ENFORCEMENT OF REQUEST TO INCLUDE
FUNDS.—
‘‘(A) IN GENERAL.—If the Secretary fails to
carry out a request filed by an Indian tribe or
tribal organization to include in such tribe or
organization’s grant under this part the funds
described in subsection (a)(2) within 180 days
after the filing of the request, the Secretary
shall—
‘‘(i) be deemed to have approved such
request; and
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‘‘(ii) immediately upon the expiration
of such 180-day period amend the grant ac-
cordingly.
‘‘(B) RIGHTS.—A tribe or organization de-
scribed in subparagraph (A) may enforce its
rights under subsection (a)(2) and this para-
graph, including rights relating to any denial or
failure to act on such tribe’s or organization’s re-
quest, pursuant to the dispute authority de-
scribed in section 5209(e).
‘‘SEC. 5206. ELIGIBILITY FOR GRANTS.
‘‘(a) RULES.—
‘‘(1) IN GENERAL.—A tribally controlled school
is eligible for assistance under this part if the
school—
‘‘(A) on April 28, 1988, was a contract
school under title XI of the Education Amend-
ments of 1978 and the tribe or tribal organiza-
tion operating the school submits to the Sec-
retary a written notice of election to receive a
grant under this part;
‘‘(B) was a Bureau operated school under
title XI of the Education Amendments of 1978
and has met the requirements of subsection (b);
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‘‘(C) is not a Bureau funded school, but has
met the requirements of subsection (c); or
‘‘(D) is a school with respect to which an
election has been made under paragraph (2) and
that has met the requirements of subsection (b).
‘‘(2) NEW
SCHOOLS.—Notwithstanding para-
graph (1), for purposes of determining eligibility for
assistance under this part, any application that has
been submitted under the Indian Self-Determination
and Education Assistance Act by an Indian tribe or
tribal organization for a school that is not in oper-
ation on the date of enactment of the Native Amer-
ican Education Improvement Act of 2001 shall be re-
viewed under the guidelines and regulations for appli-
cations submitted under the Indian Self-Determina-
tion 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 sub-
section (b).
‘‘(b) ADDITIONAL REQUIREMENTS FOR BUREAU FUND-
ED SCHOOLS AND CERTAIN ELECTING SCHOOLS.—
‘‘(1) BUREAU FUNDED SCHOOLS.—A school that
was a Bureau funded school under title XI of the
Education Amendments of 1978 on the date of enact-
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ment of the Native American Education Improvement
Act of 2001, and any school with respect to which an
election is made under subsection (a)(2), meets the re-
quirements 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 request-
ing that the Secretary—
‘‘(i) 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) make a determination as to
whether the school is eligible for assistance
under this part; and
‘‘(B) the Secretary makes a determination
that the school is eligible for assistance under
this part.
‘‘(2) CERTAIN ELECTING SCHOOLS.—
‘‘(A) DETERMINATION.—By not later than
120 days after the date on which an application
is submitted to the Secretary under paragraph
(1)(A), the Secretary shall determine—
‘‘(i) in the case of a school that is not
being operated by the Indian tribe or tribal
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organization, whether to transfer operation
of the school to the Indian tribe or tribal or-
ganization; and
‘‘(ii) whether the school is eligible for
assistance under this part.
‘‘(B) CONSIDERATION; TRANSFERS AND ELI-
GIBILITY.—In 
considering 
applications 
sub-
mitted under paragraph (1)(A), the Secretary—
‘‘(i) shall transfer operation of the
school to the Indian tribe or tribal organi-
zation, if the tribe or tribal organization is
not already operating the school; and
‘‘(ii) shall determine that the school is
eligible for assistance under this part, un-
less the Secretary finds by clear and con-
vincing evidence that the services to be pro-
vided by the Indian tribe or tribal organi-
zation will be deleterious to the welfare of
the Indians served by the school and will
not carry out the purposes of this Act.
‘‘(C) 
CONSIDERATION; 
POSSIBLE
DEFI-
CIENCIES.—In considering applications sub-
mitted under paragraph (1)(A), the Secretary
shall only consider whether the Indian tribe or
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tribal organization would be deficient in oper-
ating the school with respect to—
‘‘(i) equipment;
‘‘(ii) bookkeeping and accounting pro-
cedures;
‘‘(iii) ability to adequately manage a
school; or
‘‘(iv) adequately trained personnel.
‘‘(c) ADDITIONAL REQUIREMENTS
FOR
A SCHOOL
THAT IS NOT A BUREAU FUNDED SCHOOL.—
‘‘(1) IN GENERAL.—A school that is not a Bu-
reau funded school under title XI of the Education
Amendments of 1978 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 request-
ing a determination by the Secretary as to
whether the school is eligible for assistance under
this part; and
‘‘(B) the Secretary makes a determination
that the school is eligible for assistance under
this part.
‘‘(2) DEADLINE
FOR
DETERMINATION
BY
SEC-
RETARY.—
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‘‘(A) DETERMINATION.—By not later than
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 part.
‘‘(B) FACTORS.—In making the determina-
tion 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 ade-
quate facilities;
‘‘(II) geographic and demographic
factors in the affected areas;
‘‘(III) adequacy of the applicant’s
program plans;
‘‘(IV) geographic proximity of
comparable public education; and
‘‘(V) the needs to be met by the
school, as expressed by all affected par-
ties, including but not limited to stu-
dents, families, tribal governments at
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both the central and local levels, and
school organizations.
‘‘(ii) With respect to all education serv-
ices 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 on education; and
‘‘(IV) the history and success of
those services for the proposed popu-
lation to be served, as determined from
all factors including, if relevant, stand-
ardized examination performance.
‘‘(C) EXCEPTION REGARDING PROXIMITY.—
The Secretary may not make a determination
under this paragraph that is primarily based
upon the geographic proximity of comparable
public education.
‘‘(D) INFORMATION ON FACTORS.—An ap-
plication submitted under paragraph (1)(A)
shall include information on the factors described
in subparagraph (B)(i), but the applicant may
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also provide the Secretary such information rel-
ative to the factors described in subparagraph
(B)(ii) as the applicant considers to be appro-
priate.
‘‘(E) TREATMENT OF LACK OF DETERMINA-
TION.—If the Secretary fails to make a deter-
mination under subparagraph (A) with respect
to an application within 180 days after the date
on 
which 
the 
Secretary 
received 
the
application—
‘‘(i) the Secretary shall be deemed to
have made a determination that the tribally
controlled school is eligible for assistance
under this part; and
‘‘(ii) the grant shall become effective 18
months after the date on which the Sec-
retary received the application, or on an
earlier date, at the Secretary’s discretion.
‘‘(d) FILING OF APPLICATIONS AND REPORTS.—
‘‘(1) IN GENERAL.—Each application or report
submitted to the Secretary under this part, and any
amendment to such application or report, shall be
filed with the education line officer designated by the
Director of the Office of Indian Education Programs
of the Bureau of Indian Affairs. The date on which
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the filing occurs shall, for purposes of this part, be
treated as the date on which the application, report,
or amendment was submitted to the Secretary.
‘‘(2) SUPPORTING DOCUMENTATION.—
‘‘(A) IN GENERAL.—Any application that is
submitted under this part shall be accompanied
by a document indicating the action taken by the
appropriate tribal governing body concerning
authorizing such application.
‘‘(B) AUTHORIZATION
ACTION.—The Sec-
retary shall administer the requirement of sub-
paragraph (A) in a manner so as to ensure that
the tribe involved, through the official action of
the tribal governing body, has approved of the
application for the grant.
‘‘(C) RULE OF CONSTRUCTION.—Nothing in
this paragraph shall be construed as making a
tribal governing body (or tribe) that takes an ac-
tion described in subparagraph (A) a party to
the grant (unless the tribal governing body or the
tribe is the grantee) or as making the tribal gov-
erning body or tribe financially or program-
matically responsible for the actions of the grant-
ee.