Title 25, IndiansRelease 119-110
§5348 Computation of Student Count
Title 25 › CHAPTER 46 — INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE › SUBCHAPTER II — CONTRACTS WITH STATES › § 5348
Summary
Counts how many eligible Indian students each contract should serve, sets reporting rules, protects some payments, and requires rule changes and reviews. Contracting party means an entity with a contract under the program. Eligible entity means an entity that can apply for a contract. Existing contracting party means a contract-holder on December 31, 2018. New contracting party means a contract started after December 31, 2018. JOM Modernization Act means the Johnson‑O’Malley Modernization Act. Secretary means the Secretary of the Interior. The Secretary must make an initial student count and publish a preliminary report within 180 days after December 31, 2018 using Census, NCES, and Department of Education data, checked against current contractors’ counts and tribal rolls. There will be a 60‑day comment period, then a final report is due within 120 days after comments end. After that, annual student counts come from each contracting party’s yearly report, which must also show how contract funds were spent. If a contractor fails to file the report, it gets no money the next fiscal year. Existing contractors cannot get less money than they received the year before December 31, 2018, unless they failed to report, broke rules or law, or their counted students fell; any cut must not lower funding per student below the prior level. These hold‑harmless rules end 4 years after December 31, 2018; after that date, no contractor can lose more than 10% per‑student funding in one year. If total funding is short, cuts are spread evenly. The Secretary may recommend ways to raise per‑student funding (including comparing to 1995 levels) and must give extra appropriations first to those who did not get full per‑student funding last year, prioritizing new contractors until everyone reaches full amounts. The Secretary should reach out to tribes and education agencies not yet in the program. Within 1 year after December 31, 2018, the Secretary must finish rulemaking to clarify who is eligible and how funding is calculated, then report to Congress within 30 days. All data and reports must protect student privacy under FERPA. The Comptroller General must review implementation and report publicly within 18 months after the final initial report. The rules do not create a new program or override existing regulations unless the law says so.
Full Legal Text
Title 25, §5348
Indians, Source: USLM XML via OLRC
(a)Definitions
(1)Contracting party
(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 outlined in section 5342 of this title.
(3)Existing contracting party
(4)JOM Modernization Act
The term “JOM Modernization Act” means the Johnson-O’Malley Supplemental Indian Education Program Modernization Act.
(5)New contracting party
(6)Secretary
The term “Secretary” means the Secretary of the Interior.
(b)Determination of the number of eligible Indian students
(1)Initial determinations
(A)In general
The Secretary shall make an initial determination of the number of eligible Indian students served or potentially served by each eligible entity in accordance with subparagraph (B).
(B)Process for making the initial determination
(i)Preliminary report
Not later than 180 days after December 31, 2018, the Secretary shall publish a preliminary report describing the number of eligible Indian students served or potentially served by each eligible entity, using the most applicable and accurate data (as determined by the Secretary in consultation with eligible entities) from the fiscal 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 preliminary report described in clause (i) prior to publishing, the Secretary shall reconcile the data described in the preliminary report with—
(I)each existing contracting party’s data regarding the number of eligible Indian students served by the existing contracting party for the fiscal year preceding the fiscal year for which the initial determination is made; and
(II)identifiable tribal enrollment information.
(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 entities, 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 potentially served by each eligible entity, including 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 eligible 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 Secretary a report describing the number of eligible Indian students who were served using amounts allocated to such party under sections 5342 to 5348 of this title during the previous 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
(3)Notice
The Secretary shall provide contracting parties 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 provide technical assistance and training on compliance with the reporting requirements of this subsection to contracting parties.
(d)Annual report
(1)In general
The Secretary shall prepare an annual report, including the most recent determination of the number of eligible Indian students served by each contracting party, recommendations on appropriate funding levels for the program based on such determination, and an assessment of the contracts under sections 5342 to 5348 of this title that the Secretary—
(A)may include in the budget request of the Department of the Interior for each fiscal year;
(B)shall submit to—
(i)the Committee on Indian Affairs of the Senate;
(ii)the Subcommittee on Interior, Environment, and Related Agencies of the Committee on Appropriations of the Senate;
(iii)the Committee on Education and the Workforce of the House of Representatives; and
(iv)the Subcommittee on Interior, Environment, and Related Agencies of the Committee on Appropriations of the House of Representatives; and
(C)shall make publicly available.
(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.
(B)Exceptions
(i)In general
An existing contracting party shall receive an amount under sections 5342 to 5348 of this title for a fiscal year that is less than the amount that the existing contracting party received under sections 5342 to 5348 of this title for the fiscal year preceding 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
(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 students served by the existing contracting party in the fiscal year preceding December 31, 2018.
(ii)Amount of funding reduction for existing contracting parties reporting decreased 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
(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 funding per eligible Indian student from the previous 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 attempt 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
(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 contracting party receives their full per student funding allocation.
(g)Increased geographical and tribal participation in the Johnson-O’Malley supplementary education program
(1)to determine the interest of the Indian tribes, State educational agencies, local educational agencies, and Alaska Native organizations, in entering into such contracts; and
(h)Rulemaking
(1)In general
Not later than 1 year after December 31, 2018, the Secretary, acting through the Director 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—
(B)determine, as necessary, how the funding 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 provide clarity on the funding process under sections 5342 to 5348 of this title; and
(2)Report
Not later than 30 days after the date the rulemaking under paragraph (1) is complete, the Secretary shall submit a report to Congress describing the results of such rulemaking and necessary recommendations to ensure the full implementation of such rulemaking.
(i)Student privacy
The Secretary shall ensure that data is collected and each report is prepared under this section in a manner that protects the rights of eligible Indian students in accordance with section 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 period, 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 Bureau 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, Environment, and Related Agencies of the Committee 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 Representatives; and
(D)the Subcommittee on Interior, Environment, and Related Agencies of the Committee on Appropriations of the House of Representatives; and
(3)make such report publicly available.
Legislative History
Notes & Related Subsidiaries
Editorial Notes
References in Text
The Johnson-O’Malley Supplemental Indian Education 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 classification 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.
Reference
Citations & Metadata
Citation
25 U.S.C. § 5348
Title 25, Indians
Last Updated
Sep 22, 2026
Release point: 119-110