Provisions in the No Child Left Behind Act of 2001
(Pub. L. No. 107-110 (2002))
Expressly Mentioning Tribal Education Departments or Tribal Education Codes

INTRODUCTION

The Elementary and Secondary Education Act (ESEA) of 1965, Pub. L. No. 89-10, 79 Stat. 27, is the principal federal law by which states and public schools get federal funding and other assistance for elementary and secondary education. Major ESEA programs include (as they are now entitled) Title I, "Improving the Academic Achievement of the Disadvantaged"; Title II, "Teacher Training"; Title III, "Limited English Proficiency"; Title VII "Indian, Native Hawaiian, and Alaska Native Education"; and, Title VIII, "Impact Aid."

As with many federal program funding laws, the ESEA must be "reauthorized" by Congress every few years. The No Child Left Behind Act (NCLB) of 2001, Pub. L. No. 107-110, 115 Stat. 1425, is a six-year reauthorization of programs and funding authorizations under the ESEA. The most previous reauthorization included the Goals 2000: Educate America Act of 1994, Pub. L. No. 103-227, 108 Stat. 125, and the Improving America's Schools Act of 1994, Pub. L. No. 103-382, 108 Stat. 3518.

The first ESEA reauthorization to mention Tribal Education Departments (TEDs) was in 1984, Pub. L. No. 98-511, 99 Stat. 2366. This law allows the Bureau of Indian Affairs (BIA) to fund TEDs and tribal education codes under the Indian Self-Determination and Education Assistance Act of 1975, Pub. L. No. 93-638, 88 Stat. 2203.

In 1988, the ESEA reauthorization, Pub. L. No. 100-297, 102 Stat. 130, included the important authorization for direct federal funding for TEDs through the BIA. A separate authorization for direct federal funding for TEDs through the U.S. Department of Education was contained in the 1994 ESEA reauthorization, the Improving America's Schools Act of 1994, Pub. L. No. 103-382, 108 Stat. 3518.

In addition to these federal law provisions, there are several others that recognize TEDs. The history of many of these are set forth in the publication by the Native American Rights Fund (NARF) entitled " Federal and State Laws regarding Tribal Education Departments 1984-1999 (Oct. 1999) (also known as the "Orange Book).

Significantly, to date no ESEA reauthorization has ever repealed a TED provision. This is primarily due to the successful efforts of tribes and national Indian organizations such as the National Indian Education Association, the National Congress of American Indians, and NARF, who have urged Congress to retain the TED provisions when the ESEA is up for reauthorization.

To date, there are fifteen federal law provisions that recognize TEDs or tribal education codes. They are contained in four separate Titles of NCLB (Title I; Title III; Title VII; and, Title X).

It is important for TEDs to know what Congress has provided regarding TEDs. The federal law provisions are strong statements by Congress about the rights and roles of TEDs in educating tribal students in BIA, tribal, and public schools. As you review the provisions, you will see that Congress envisions TED involvement in data reporting, language programs, teacher training, academic assessments, and accreditation.

STATUTORY PROVISIONS

TITLE I – IMPROVING THE ACADEMIC ACHIEVEMENT OF THE DISADVANTAGED
Part A – Improving Basic Programs Operated By Local Educational Agencies
Subpart 1 – Basic Program Requirements

Under Section 1111, in general, to be eligible for Title I basic funding, state education agencies (SEAs) must develop and submit to the Secretary of Education plans that provide for academic standards, academic assessments, accountability, and many other requirements specified in NCLB. 20 U.S.C. 6311. Under Section 1112, SEAs then subgrant Title I funding to "local educational agencies" (LEAs) who have plans approved by the SEAs. 20 U.S.C. 6312.

Under Section 1116(g), with respect to schools funded by the BIA and / or the Tribe acts as an LEA with respect to reviewing and reporting the academic assessment and school improvement progress to the Secretary of the Interior. 20 U.S.C. 6316(g).

Under Section 1111(m)(3), with respect to BIA funded schools, in determining their assessments, if a school is accredited by a TED, the school must use the TED’s assessment, and the Secretary of the Interior must ensure that the assessment is in compliance with NCLB. 20 U.S.C. 6311(m)(3).

TITLE III – LANGUAGE INSTRUCTION FOR LIMITED ENGLISH PROFICIENT AND IMMIGRANT STUDENTS
Part A – English Language Acquisition, Language Enhancement, and Academic Achievement Act
Subpart 1 – Grants and Subgrants for English Language Acquisition and Language Enhancement

Under Sections 3112(a)(2) and 3301(15), TEDs are among the eligible entities for grants under this program for Native American and Alaska Native children in school. 20 U.S.C. 6822(a)(2); 20 U.S.C. 7011(15).

TITLE III – LANGUAGE INSTRUCTION FOR LIMITED ENGLISH PROFICIENT AND IMMIGRANT STUDENTS
Part B – Improving Language Instruction Educational Program

Under Sections 3203(a) and 3301(15), TEDs are among the eligible entities for grants under this program for Native American children in school. 20 U.S.C. 6893(a); 20 U.S.C. 7011(15).

TITLE III – LANGUAGE INSTRUCTION FOR LIMITED ENGLISH PROFICIENT AND IMMIGRANT STUDENTS
Part A – English Language Acquisition, Language Enhancement, and Academic Achievement Act
Subpart 1 – Grants and Subgrants for English Language Acquisition and Language Enhancement

Under Section 3301(2), the definition of "community-based organization" (CBO) in Title III programs includes "tribally-sanctioned educational authorities," and under Section 3301(15), the definition of "tribally sanctioned educational authorities" includes TEDs. 20 U.S.C. 7011(2) and 7011(15).

Under Sections 3115 and 3141, LEAs are eligible for subgrants from SEAs for the improvement of education for limited English proficient children, including LEAs that are in collaboration with CBOs, including TEDs. 20 U.S.C. 6825 and 6871(2).

TITLE III – LANGUAGE INSTRUCTION FOR LIMITED ENGLISH PROFICIENT AND IMMIGRANT STUDENTS
Part A – English Language Acquisition, Language Enhancement, and Academic Achievement Act
Subpart 1 – Grants and Subgrants for English Language Acquisition and Language Enhancement

Under Section 3115(e)(1)(G), where there are substantial increases in immigrant children or youth, subgrants from SEAs for the improvement of education for limited English proficient children must be used for activities that provide enhanced instructional opportunities for the children and youth, which may include activities that assist the parents of immigrant children and youth by offering comprehensive community services, and which are coordinated with, among other entities, CBOs, including TEDs. 20 U.S.C. 6825(e)(1)(G).

TITLE III – LANGUAGE INSTRUCTION FOR LIMITED ENGLISH PROFICIENT AND IMMIGRANT STUDENTS
Part B – Improving Language Instruction Educational Program
Subpart 1 – Program Development and Enhancement

Under Sections 3211 and 3212(c)(3), CBOs, including TEDs, are eligible for grants for language instruction educational programs for limited English proficient children if their applications are approved by an LEA to participate in the programs by enhancing early childhood education or family education programs or conducting instruction programs that supplement the educational services provided by the LEA. 20 U.S.C. 6911 and 6912(c)(3).

TITLE III – LANGUAGE INSTRUCTION FOR LIMITED ENGLISH PROFICIENT AND IMMIGRANT STUDENTS
Part B – Improving Language Instruction Educational Program
Subpart 1 – Program Development and Enhancement

Under Section 3212(a)(2)(A), grants for language instruction educational programs for limited English proficient children must be used for, among other things, providing high-quality professional development to, among others, TED personnel, to improve the instruction and assessment of limited English proficient children. 20 U.S.C. ? 6912(a)(2)(A).

TITLE III – LANGUAGE INSTRUCTION FOR LIMITED ENGLISH PROFICIENT AND IMMIGRANT STUDENTS
Part B – Improving Language Instruction Educational Program
Subpart 1 – Program Development and Enhancement

Under Section 3213, LEAs are eligible for grants for the development and implementation of language instruction educational programs that serve limited English proficient children, including LEAs that are in collaboration with CBOs, including TEDs. 20 U.S.C. 6913(a) and 6913(d).

Under Section 3214(i), the degree to which LEAs collaborate with, among other entities, CBOs including TEDs, must be given consideration in determining approval of applications for such grants. 20 U.S.C. 6914(i).

TITLE VII – INDIAN, NATIVE HAWAIIAN, AND ALASKA NATIVE EDUCATION
PART A – INDIAN EDUCATION
Subpart 3 – National Activities

Under Section 7135, the Secretary of Education is authorized to make grants to tribes for the planning and development of TEDs. 20 U.S.C. 7455. For the full text of this statutory provision, go to our page on Congressional authorization.

TITLE X – REPEALS, REDESIGNATIONS, AND AMENDMENTS TO OTHER STATUTES
PART D – NATIVE AMERICAN EDUCATION IMPROVEMENT

Under Section 1121(b)(1)(B), which governs accreditation for the basic education of Indian children in schools funded by the BIA, the Secretaries of the Interior and Education must, in consultation with tribes, Indian education organizations, and accrediting agencies, develop and submit to Congress a report on the desirability and feasibility of establishing a tribal accreditation agency that would, among other things, establish accreditation procedures for, among other things, recognizing qualified and credible TEDs as accrediting bodies serving tribal schools. 25 U.S.C. ? 2001(b)(1)(B).

TITLE X – REPEALS, REDESIGNATIONS, AND AMENDMENTS TO OTHER STATUTES
PART D – NATIVE AMERICAN EDUCATION IMPROVEMENT

Under Section 1121(e), which governs the Secretary of the Interior’s review of applications for contracts or grants by tribes for non-BIA-funded schools or expansions of BIA-funded schools, among the factors that the Secretary must consider is the consistency of the available programs and services with tribal educational codes or tribal legislation on education. 25 U.S.C. 2001(e)(1)(B)(vii).

TITLE X – REPEALS, REDESIGNATIONS, AND AMENDMENTS TO OTHER STATUTES
PART D – NATIVE AMERICAN EDUCATION IMPROVEMENT

Under Section 1130(c), the Secretary of the Interior may approve applications for funding TEDs and developing tribal education codes from Indian Self-Determination and Education Assistance Act grants. 25 U.S.C. 2010(c).

TITLE X – REPEALS, REDESIGNATIONS, AND AMENDMENTS TO OTHER STATUTES
PART D – NATIVE AMERICAN EDUCATION IMPROVEMENT

Under Section 1140, the Secretary of the Interior may make grants and provide technical assistance to tribes for the development and operation of TEDs. 25 U.S.C. 2020. See the full text of this statutory provision.

TITLE X – REPEALS, REDESIGNATIONS, AND AMENDMENTS TO OTHER STATUTES
PART D – NATIVE AMERICAN EDUCATION IMPROVEMENT

Under Section 5205(c), which governs the Secretary of the Interior?s review of applications by tribes for grant schools which are not funded by the BIA, among the factors that the Secretary must consider is the consistency of all education services already available within an applicant?s service area with tribal education codes or tribal legislation on education. 25 U.S.C. ? 2504(c)(2)(B)(ii)(III).

TITLE X – REPEALS, REDESIGNATIONS, AND AMENDMENTS TO OTHER STATUTES
PART D – NATIVE AMERICAN EDUCATION IMPROVEMENT

Under Section 5206(c), which governs the duration of grant school status eligibility determinations, the Secretary of the Interior cannot revoke a school’s eligibility determination if the school’s required reports have been submitted and if, among other things, the school is accredited by a TED if such accreditation is accepted by a recognized regional or state accreditation agency. 25 U.S.C. ? 2505(c)(1)(A)(ii).