25 U.S.C. § 5348 — Computation of student count

Page 753 TITLE 25—INDIANS § 5348 mittee shall fully participate in the develop- ment of, and shall have the authority to approve or disapprove programs to be conducted under such contract or contracts, and shall carry out such other duties, and be so structured, as the Secretary of the Interior shall by regulation provide: Provided, however, That, whenever a local Indian committee or committees estab- lished pursuant to section 7424(c)(4) of title 20 or an Indian advisory school board or boards estab- lished pursuant to sections 5342 to 5348 of this title prior to January 4, 1975, exists in such school district, such committee or board may, in the discretion of the affected tribal governing body or bodies, be utilized for the purposes of this section. (b) Revocation of contracts The Secretary of the Interior may, in his dis- cretion, revoke any contract if the contractor fails to permit a local committee to perform its duties pursuant to subsection (a) of this section. (Apr. 16, 1934, ch. 147, § 5, as added Pub. L. 93–638, title II, § 202, Jan. 4, 1975, 88 Stat. 2213; amended Pub. L. 103–382, title III, § 393(d), Oct. 20, 1994, 108 Stat. 4027; Pub. L. 107–110, title VII, § 702(e), Jan. 8, 2002, 115 Stat. 1947; Pub. L. 114–95, title IX, § 9215(a), Dec. 10, 2015, 129 Stat. 2166.) Editorial Notes CODIFICATION Section was formerly classified to section 456 of this title prior to editorial reclassification and renumbering as this section. PRIOR PROVISIONS A prior section 5 of act Apr. 16, 1934, ch. 147, 48 Stat. 596, which excluded Oklahoma from the application of contract provisions, was omitted in the general amend- ment of act Apr. 16, 1934, by act June 4, 1936, ch. 490, 49 Stat. 1458. AMENDMENTS 2015—Subsec. (a). Pub. L. 114–95 made technical amendment to reference in original act which appears in text as reference to section 7424(c)(4) of title 20. 2002—Subsec. (a). Pub. L. 107–110 substituted ref- erence to section 7424(c)(4) of title 20 for reference to section 7814(c)(4) of title 20. 1994—Subsec. (a). Pub. L. 103–382 substituted ref- erence to section 7814(c)(4) of title 20 for reference to section 241dd(b)(2)(B)(ii) of title 20. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2002 AMENDMENT Amendment by Pub. L. 107–110 effective Jan. 8, 2002, except with respect to certain noncompetitive pro- grams and competitive programs, see section 5 of Pub. L. 107–110, set out as an Effective Date note under sec- tion 6301 of Title 20, Education. § 5347. Reimbursement to school districts for educating non-resident students Any school district educating Indian students who are members of recognized Indian tribes, who do not normally reside in the State in which such school district is located, and who are residing in Federal boarding facilities for the purposes of attending public schools within such district may, in the discretion of the Sec- retary of the Interior, be reimbursed by him for the full per capita costs of educating such In- dian students. (Apr. 16, 1934, ch. 147, § 6, as added Pub. L. 93–638, title II, § 202, Jan. 4, 1975, 88 Stat. 2214.) Editorial Notes CODIFICATION Section was formerly classified to section 457 of this title prior to editorial reclassification and renumbering as this section. § 5348. Computation of student count (a) Definitions For the purposes of sections 5342 to 5348 of this title, the following definitions apply: (1) Contracting party The term ‘‘contracting party’’ means an en- tity that has a contract through a program authorized under sections 5342 to 5348 of this title. (2) Eligible entity The term ‘‘eligible entity’’ means an entity that is eligible to apply for a contract for a supplemental or operational support program under sections 5342 to 5348 of this title, as out- lined in section 5342 of this title. (3) Existing contracting party The term ‘‘existing contracting party’’ means a contracting party that has a contract under sections 5342 to 5348 of this title that is in effect on December 31, 2018. (4) JOM Modernization Act The term ‘‘JOM Modernization Act’’ means the Johnson-O’Malley Supplemental Indian Education Program Modernization Act. (5) New contracting party The term ‘‘new contracting party’’ means an entity that enters into a contract under sec- tions 5342 to 5348 of this title after December 31, 2018. (6) Secretary The term ‘‘Secretary’’ means the Secretary of the Interior. (b) Determination of the number of eligible In- dian students (1) Initial determinations (A) In general The Secretary shall make an initial deter- mination of the number of eligible Indian students served or potentially served by each eligible entity in accordance with sub- paragraph (B). (B) Process for making the initial determina- tion (i) Preliminary report Not later than 180 days after December 31, 2018, the Secretary shall publish a pre- liminary report describing the number of eligible Indian students served or poten- tially served by each eligible entity, using the most applicable and accurate data (as determined by the Secretary in consulta- tion with eligible entities) from the fiscal Page 754 TITLE 25—INDIANS § 5348 year preceding the fiscal year for which the initial determination is to be made from— (I) the Bureau of the Census; (II) the National Center for Education Statistics; or (III) the Office of Indian Education of the Department of Education. (ii) Data reconciliation To improve the accuracy of the prelimi- nary report described in clause (i) prior to publishing, the Secretary shall reconcile the data described in the preliminary re- port with— (I) each existing contracting party’s data regarding the number of eligible In- dian students served by the existing con- tracting party for the fiscal year pre- ceding the fiscal year for which the ini- tial determination is made; and (II) identifiable tribal enrollment in- formation. (iii) Comment period After publishing the preliminary report under clause (i) in accordance with clause (ii), the Secretary shall establish a 60-day comment period to gain feedback about the preliminary report from eligible enti- ties, which the Secretary shall take into consideration in preparing the final report described in clause (iv). (iv) Final report Not later than 120 days after concluding the consultation described in clause (iii), the Secretary shall publish a final report on the initial determination of the number of eligible Indian students served or poten- tially served by each eligible entity, in- cluding justification for not including any feedback gained during such consultation, if applicable. (2) Subsequent academic years For each academic year following the fiscal year for which an initial determination is made under paragraph (1) to determine the number of eligible Indian students served or potentially served by a contracting party, the Secretary shall determine the number of eligi- ble Indian students served by the contracting party based on the reported eligible Indian student count numbers identified through the reporting process described in subsection (c). (c) Contracting party student count reporting compliance (1) In general For each academic year following the fiscal year for which an initial determination is made under subsection (b) to determine the number of eligible Indian students served or potentially served by a contracting party, the contracting party shall submit to the Sec- retary a report describing the number of eligi- ble Indian students who were served using amounts allocated to such party under sec- tions 5342 to 5348 of this title during the pre- vious fiscal year. The report shall also include an accounting of the amounts and purposes for which the contract funds were expended. (2) Failure to comply A contracting party that fails to submit a report under paragraph (1) shall receive no amounts under sections 5342 to 5348 of this title for the fiscal year following the academic year for which the report should have been submitted. (3) Notice The Secretary shall provide contracting par- ties with timely information relating to— (A) initial and final reporting deadlines; and (B) the consequences of failure to comply outlined in paragraph (2). (4) Technical assistance The Secretary, acting through the Director of the Bureau of Indian Education, shall pro- vide technical assistance and training on com- pliance with the reporting requirements of this subsection to contracting parties. (d) Annual report (1) In general The Secretary shall prepare an annual re- port, including the most recent determination of the number of eligible Indian students served by each contracting party, rec- ommendations on appropriate funding levels for the program based on such determination, and an assessment of the contracts under sec- tions 5342 to 5348 of this title that the Sec- retary— (A) may include in the budget request of the Department of the Interior for each fis- cal year; (B) shall submit to— (i) the Committee on Indian Affairs of the Senate; (ii) the Subcommittee on Interior, Envi- ronment, and Related Agencies of the Committee on Appropriations of the Sen- ate; (iii) the Committee on Education and the Workforce of the House of Representa- tives; and (iv) the Subcommittee on Interior, Envi- ronment, and Related Agencies of the Committee on Appropriations of the House of Representatives; and (C) shall make publicly available. (2) Manner of preparation The Secretary shall prepare the report under paragraph (1) in a manner so as to prevent or minimize new administrative burdens on con- tracting parties receiving funds under sections 5342 to 5348 of this title. (e) Hold harmless (1) Initial hold harmless (A) In general Except as provided under subparagraph (B) and subject to subparagraphs (C) and (D), for a fiscal year, an existing contracting party shall not receive an amount under sections 5342 to 5348 of this title that is less than the amount that such existing contracting party received under sections 5342 to 5348 of this title for the fiscal year preceding December 31, 2018. Page 755 TITLE 25—INDIANS § 5348 (B) Exceptions (i) In general An existing contracting party shall re- ceive an amount under sections 5342 to 5348 of this title for a fiscal year that is less than the amount that the existing con- tracting party received under sections 5342 to 5348 of this title for the fiscal year pre- ceding December 31, 2018, if one or more of the following conditions is met: (I) Failure to report The existing contracting party failed to submit a complete report described in subsection (c) that was most recently due from the date of the determination. (II) Violations of contract or law The Secretary has found that the ex- isting contracting party has violated the terms of a contract entered into under sections 5342 to 5348 of this title or has otherwise violated Federal law. (III) Student count decrease The number of eligible Indian students reported by such existing contracting party under subsection (c) has decreased below the number of eligible Indian stu- dents served by the existing contracting party in the fiscal year preceding De- cember 31, 2018. (ii) Amount of funding reduction for exist- ing contracting parties reporting de- creased student counts A reduction in an amount pursuant to clause (i)(III) shall not be done in such a manner that the existing contracting party receives an amount of funding per eligible Indian student that is less than the amount of funding per eligible Indian student such party received for the fiscal year preceding December 31, 2018. (C) Ratable reductions in appropriations If the funds available under sections 5342 to 5348 of this title for a fiscal year are insuf- ficient to pay the full amounts that all ex- isting contracting parties are eligible to re- ceive under subparagraph (A) for the fiscal year, the Secretary shall ratably reduce those amounts for the fiscal year. (D) Sunset This paragraph shall cease to be effective 4 years after December 31, 2018. (2) Maximum decrease after 4 years Beginning 4 years after December 31, 2018, no contracting party shall receive for a fiscal year more than a 10 percent decrease in fund- ing per eligible Indian student from the pre- vious fiscal year. (f) Funding allocation and reform (1) Funding reform The Secretary may make recommendations for legislation to increase the amount of funds available per eligible Indian student through contracts under sections 5342 to 5348 of this title to equal to or greater than the amount of funds that were available per eligible Indian student through contracts under sections 5342 to 5348 of this title for fiscal year 1995, and at- tempt to identify additional sources of funding that do not reallocate existing funds otherwise utilized by Indian students served— (A) by the Bureau of Indian Education; or (B) under title VI of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7401 et seq.). (2) Increases in program funding (A) In general Subject to subsection (e) and subparagraph (B), for any fiscal year for which the amount appropriated to carry out sections 5342 to 5348 of this title exceeds the amount appro- priated to carry out sections 5342 to 5348 of this title for the preceding fiscal year, the excess amounts shall— (i) be allocated only to those contracting parties that did not receive their full per student funding allocation for the previous fiscal year; and (ii) be allocated first to new contracting parties that did not receive their full per student funding allocation for the previous fiscal year. (B) Parity in funding Subparagraph (A) shall have no effect after the first fiscal year for which each con- tracting party receives their full per student funding allocation. (g) Increased geographical and tribal participa- tion in the Johnson-O’Malley supplementary education program To the maximum extent practicable, the Sec- retary shall consult with Indian tribes and con- tact State educational agencies, local edu- cational agencies, and Alaska Native organiza- tions that have not previously entered into a contract under sections 5342 to 5348 of this title— (1) to determine the interest of the Indian tribes, State educational agencies, local edu- cational agencies, and Alaska Native organiza- tions, in entering into such contracts; and (2) to share information relating to the proc- ess for entering into a contract under sections 5342 to 5348 of this title. (h) Rulemaking (1) In general Not later than 1 year after December 31, 2018, the Secretary, acting through the Direc- tor of the Bureau of Indian Education, shall undertake and complete a rulemaking process, following the provisions of subchapter II of chapter 5 of title 5, to— (A) determine how the regulatory defini- tion of ‘‘eligible Indian student’’ may be re- vised to clarify eligibility requirements for contracting parties under sections 5342 to 5348 of this title; (B) determine, as necessary, how the fund- ing formula described in section 273.31 of title 25, Code of Federal Regulations (as in effect on the day before December 31, 2018) may be clarified and revised to ensure full participation of contracting parties and pro- vide clarity on the funding process under sections 5342 to 5348 of this title; and Page 756 TITLE 25—INDIANS § 5351 1 See References in Text note below. (C) otherwise reconcile and modernize the rules to comport with the activities of the contracting parties under sections 5342 to 5348 of this title as of December 31, 2018. (2) Report Not later than 30 days after the date the rulemaking under paragraph (1) is complete, the Secretary shall submit a report to Con- gress describing the results of such rule- making and necessary recommendations to en- sure the full implementation of such rule- making. (i) Student privacy The Secretary shall ensure that data is col- lected and each report is prepared under this section in a manner that protects the rights of eligible Indian students in accordance with sec- tion 1232g of title 20 (commonly referred to as the Family Educational Rights and Privacy Act of 1974). (j) GAO Report Not later than 18 months after the final report described in subsection (b)(1)(B)(iv) is published, the Comptroller General shall— (1) conduct a review of the implementation of this section during the preceding 2-year pe- riod, including any factors impacting— (A) the accuracy of the determinations of the number of eligible Indian students under this section; (B) the communication between the Bu- reau of Indian Education and contracting parties; and (C) the efforts by the Bureau of Indian Education to ensure accurate and sufficient distribution of funding for Indian students; (2) submit a report describing the results of the review under paragraph (1) to— (A) the Committee on Indian Affairs of the Senate; (B) the Subcommittee on Interior, Envi- ronment, and Related Agencies of the Com- mittee on Appropriations of the Senate; (C) the Subcommittee on Indian, Insular and Alaska Native Affairs of the Committee on Natural Resources of the House of Rep- resentatives; and (D) the Subcommittee on Interior, Envi- ronment, and Related Agencies of the Com- mittee on Appropriations of the House of Representatives; and (3) make such report publicly available. (k) Effect Nothing in this section— (1) creates a new program or duplicates pro- gram activities under sections 5342 to 5348 of this title; or (2) replaces or diminishes the effect of regu- lations to carry out sections 5342 to 5348 of this title existing on the day before December 31, 2018, unless expressly provided in this sec- tion. (Apr. 16, 1934, ch. 147, § 7, as added Pub. L. 115–404, § 2, Dec. 31, 2018, 132 Stat. 5349.) Editorial Notes REFERENCES IN TEXT The Johnson-O’Malley Supplemental Indian Edu- cation Program Modernization Act, referred to subsec. (a)(4), is Pub. L. 115–404, Dec. 31, 2018, 132 Stat. 5349, which enacted this section and provisions set out as a note under section 5301 of this title. For complete clas- sification of this Act to the Code, see Short Title of 2018 Amendment note set out under section 5301 of this title and Tables. The Elementary and Secondary Education Act of 1965, referred to in subsec. (f)(1)(B), is Pub. L. 89–10, Apr. 11, 1965, 79 Stat. 27. Title VI of the Act is classified generally to subchapter VI (§ 7401 et seq.) of chapter 70 of Title 20, Education. For complete classification of this Act to the Code, see Short Title note set out under section 6301 of Title 20 and Tables. SUBCHAPTER III—INDIAN EDUCATION ASSISTANCE § 5351. School construction, acquisition, or ren- ovation contracts (a) Authorization; prerequisites The Secretary is authorized to enter into a contract or contracts with any State education agency or school district for the purpose of as- sisting such agency or district in the acquisition of sites for, or the construction, acquisition, or renovation of facilities (including all necessary equipment) in school districts on or adjacent to or in close proximity to any Indian reservation or other lands held in trust by the United States for Indians, if such facilities are necessary for the education of Indians residing on any such reservation or lands. (b) Eligibility requirements for assistance in fed- erally-affected areas; applicability to projects in determining maximum amount, allocation, of funds, etc. The Secretary may expend not less than 75 per centum of such funds as are authorized and ap- propriated pursuant to this section on those projects which meet the eligibility requirements under subsections (a) and (b) of section 644 1 of title 20. Such funds shall be allocated on the basis of existing funding priorities, if any, estab- lished by the Secretary of Education under sub- sections (a) and (b) of section 644 1 of title 20. The Secretary of Education is directed to sub- mit to the Secretary, at the beginning of each fiscal year, commencing with the first full fiscal year after January 4, 1975, a list of those projects eligible for funding under subsections (a) and (b) of section 644 1 of title 20. (c) Eligibility of private schools to receive funds; maximum amount The Secretary may expend not more than 25 per centum of such funds as may be authorized and appropriated pursuant to this section on any school eligible to receive funds under sec- tion 5355 of this title. (d) Duties of State education agencies pursuant to contracts Any contract entered into by the Secretary pursuant to this section shall contain provisions requiring the relevant State educational agency to— (1) provide Indian students attending any such facilities constructed, acquired, or ren- ovated, in whole or in part, from funds made available pursuant to this section with stand-