A tribally controlled school is eligible for assistance under this chapter if the school—
(A) on April 28, 1988, was a contract school under title XI of the Education Amendments of 1978 [25 U.S.C. 2000 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-operated school under title XI of the Education Amendments of 1978 [25 U.S.C. 2000 et seq.] 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.
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 January 8, 2002, 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.
A school that was a Bureau-funded school under title XI of the Education Amendments of 1978 [25 U.S.C. 2000 et seq.] on January 8, 2002, 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 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 chapter; and
(B) the Secretary makes a determination that the school is eligible for assistance under this chapter.
By not 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) in the case of a school which 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.
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 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.
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) ability to adequately manage a school; or
(iv) adequately trained personnel.
A school which is not a Bureau-funded school under title XI of the Education Amendments of 1978 [25 U.S.C. 2000 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 as to whether the school is eligible for assistance under this chapter; and
(B) the Secretary makes a determination that a school is eligible for assistance under this chapter.
By not 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.
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 the 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.
(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 on education; and
(IV) the history and success of these services for the proposed population to be served, as determined from all factors including, if relevant, standardized examination performance.
The Secretary may not make a determination under this paragraph that is primarily based upon the geographic proximity of comparable public education.
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.
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 1 and the grant shall become effective 18 months after the date on which the Secretary received the application, or on an earlier date, at the Secretary's discretion.
All applications and reports submitted to the Secretary under this chapter, and any amendments to such applications or reports, 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 such filing occurs shall, for purposes of this chapter, be treated as the date on which the application or amendment was submitted to the Secretary.
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.
Except as provided by subsection (c)(2)(E) of this section, a grant provided under this chapter, and any transfer of the operation of a Bureau school made under subsection (b) of this section, shall become effective beginning 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.
Whenever the Secretary refuses to approve 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) at the request of the tribe or tribal organization, 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.
The Secretary shall reconsider any amended application submitted under this chapter within 60 days after the amended application is submitted to the Secretary.
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 Congress the budget under section 1105 of title 31.
(Pub. L. 100–297, title V, §5205, as added Pub. L. 107–110, title X, §1043, Jan. 8, 2002, 115 Stat. 2068.)
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