(3) If located on an Indian reservation, operates with the sanction or by charter of the governing body of that reservation.

"Indian organization” means an organization that

(1) Is legally established by tribal or inter-tribal charter or in accordance with State or tribal law, with appropriate constitution, by-laws, and articles of incorporation;

(2) Has the primary purposes of promoting the educational, economic, or social self-sufficiency of Indians;

(3) Is controlled by a governing board, the majority of which is Indian;

(4) If located on an Indian reservation, operates with the sanction or by charter of the governing body of that reservation;

(5) Is neither an organization or subdivision of, nor under the direct control of, any institution of higher education; and

(6) Is not an agency of State or local government.

"Indian tribe" means any federally or State recognized Indian tribe, band, nation, rancheria, pueblo, Alaska Native village, or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688), that exercises the power of self-government.

"Institution of higher education" means an educational institution in any State that

(1) Admits as a regular student only an individual having a high school graduation certificate or the recognized equivalent of a high school graduation certificate;

(2) Is legally authorized within that State to provide a program of education beyond high school;

(3) Provides

(i) An educational program for which it awards a bachelor's degree;

(ii) An educational program of not less than two years that is acceptable for full credit toward a bachelor's degree; or

(iii) A two-year program in engineering, mathematics, or the physical or biological sciences that is designed to prepare a student to work as a technician and at a semiprofessional level in engineering, scientific, or other tech

nological fields that require the understanding and application of basic engineering, scientific, or mathematical principles or knowledge;

(4) Is a public or other nonprofit institution; and

(5) (i) Is accredited by a nationally recognized accrediting agency or association listed by the Secretary, or, if not accredited, is an institution whose credits are accepted, on transfer, by not less than three institutions that are accredited, on the same basis as if transferred from an institution that is accredited.

(ii) However, in the case of an institution offering a two-year program in engineering, mathematics, or the physical or biological sciences that is designed to prepare a student to work as a technician and at a semiprofessional level in engineering, scientific, or technological fields that requires the understanding and application of basic engineering, scientific, or mathematical principles or knowledge, if the Secretary determines that there is no nationally recognized accrediting agency or association qualified to accredit that type of institution, the Secretary shall appoint an advisory committee, composed of persons specially qualified to evaluate training provided by that type of institution.

The advisory committee shall prescribe the standards of content, scope, and quality that must be met in order to qualify that type of institution to participate under the appropriate program and shall also determine whether particular institutions meet those standards.

(iii) For the purpose of this paragraph the Secretary shall publish a list of nationally recognized accrediting agencies or associations which the Secretary determines to be reliable authority as to the quality of education or training offered.

"Local educational agency" (LEA), as used in 34 CFR Parts 258 through 262 (adult education programs under Part C of the Indian Education Act),

means

(1) A public board of education or other public authority legally constituted within a State for either administrative control or direction of public

elementary or secondary schools in a city, county, township, school district, or other political subdivision of a State, or combination of school districts or counties recognized in a State as an administrative agency for its public elementary or secondary

schools; or

(2) If there is a separate board or other legally constituted local authority having administrative control and direction of adult education in public schools in the area referred to in paragraph (1), that other board or authority.

"Organized group of Indians" means an ethnically and culturally identifiable group of Indians, indigenous to the territory of what is now the United States, and which has been in substantially continuous existence throughout the history of the United States.

"Parent". (1) The term "parent" includes a legal guardian or other individual standing in loco parentis (in the place of the parent).

Examples of individuals who may stand in loco parentis with respect to a child are

(i) A foster parent of the child; and (ii) A grandparent with whom the child resides.

(2) In determining whether an individual stands in loco parentis with respect to a child, an LEA may consider such factors as

(i) The current relationship of the child to the natural parent(s);

(ii) The length and stability of the relationship between the individual and the child;

(iii) Tribal custom and tribal law; (iv) Applicable State law, whether legislative or judicial; and

(v) Dependency for purposes of State or Federal income tax law.

"Secondary school," as used in 34 CFR Parts 255 through 257 (programs under Part B of the Indian Education Act), means a day or residential school that provides secondary education, as determined under State law, except that it does not include any education provided beyond grade 12.

"State," as used in 34 CFR Parts 251 through 254 (programs under Part A of the Indian Education Act), means any of the 50 States, Puerto Rico, Wake Island, Guam, the District of Columbia, American Samoa, or the Virgin Islands.

"Stipend" means the allowance for personal living expenses paid to a participant in a personnel development project.

"Teacher aide" means a person who assists a teacher in the performance of the teacher's teaching or administrative duties. The term does not include persons in such positions as clerks, cafeteria personnel, or other positions not directly involved in the educational process.

(20 U.S.C. 241aa-241ff, 244, 1202, 1211a, 1221h(a), 3381, 3385, 3385a)

§ 250.5 Applicability of Section 7(b) of the Indian Self-Determination and Education Assistance Act.

(a) Awards under Parts 251 through 262 that are primarily for the benefit of Indians, as defined in paragraph (b) of this section, are subject to Section 7(b) of Pub. L. 93-638, the Indian SelfDetermination and Education Assistance Act. That section requires that, to the greatest extent feasible, a grantee

(1) Give preferences and opportunities for training and employment in connection with the administration of the grant to Indians; and

(2) Give preference in the award of contracts in connection with the administration of the grant to Indian organizations and to Indian-owned economic enterprises as defined in Section 3 of the Indian Financing Act of 1974, 25 U.S.C. 1452(e).

(Pub. L. 93-638, Section 7(b); 25 U.S.C. 450e(b))

"Service area" means the geographic area served by a project.

in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) which is recognized as

eligible for the special programs and services provided by the United States to Indians because of their status as Indians.

(Pub. L. 93-638, Section 4 (a), (b); 25 U.S.C. 450b (a), (b))

§ 250.6 Applications.

(a) An applicant shall specify in its application the particular program under 34 CFR Parts 251 through 262 under which it is applying.

(b) If an applicant submits an application for a program under 34 CFR Parts 251 through 262 for which the proposed project is not authorized, the Secretary may, with the consent of the applicant, review the application under an appropriate program, if any under Parts 251 through 262, for which it may be timely considered. (20 U.S.C. 241aa-241ff, 1211a, 3385, 3385a) § 250.7

Allocation of available funds.

(a) Each year, the Secretary, in accordance with the provisions of 34 CFR Parts 75.100 through 75.102, publishes an application notice that states the amount of funds available for new projects under each of the programs governed by 34 CFR Parts 251 through 262.

(b) When making awards for new projects, the Secretary allocates funds to each program on the basis of the statement of available funds in the application notice. However, the Secretary may reduce the allocation of funds for a program (other than the entitlement grants program described in Part 250a) and reallocate the excess funds to other programs authorized by the appropriate part of the Indian Education Act, if the Secretary determines, on the basis of the appropriate selection criteria, that the amount of funds necessary for approvable activities described in meritorious applications is less than the entire initial allocation for that program.

(20 U.S.C. 241aa-241ff, 1211a, 3385, 3385a) § 250.8 Capacity to carry out a project.

In addition to the criteria for rating applications under the discretionary programs in 34 CFR Parts 252 through 262, the Secretary, in making awards under those programs, consid

ers an applicant's capacity to carry out successfully the project for which it seeks assistance, including such factors as

(a) The programmatic and financial management capacity of the applicant;

(b) Past performance by the applicant in carrying out any prior grant under the Indian Education Act or under similar programs, as indicated by such factors as compliance with grant conditions, soundness of programmatic and financial management practices, attainment of objectives, and the assumption of responsibility by the applicant's governing board; and

(c) The adequacy of facilities and other resources to be used for the project, including consideration of any dispute over the availability of those facilities and resources to the applicant.

(20 U.S.C. 241aa-241ff, 1211a, 3385, 3385a) § 250.9 Salaries and wages.

A grantee shall pay individuals hired for a project assisted under 34 CFR Parts 251 through 262 salaries and wages that are at least comparable to the salaries and wages paid in the local area to those with similar jobs. (20 U.S.C. 241aa-241ff, 1211a, 3385, 3385a)

§ 250.10 Organizational and administrative documents.

(a) A grantee shall have on file, and submit to the Secretary on request(1) Articles of incorporation, if incorporated;

(2) A constitution, charter or similar document, if not incorporated; (3) By-laws;

(4) Personnel policies and procedures;

(5) Travel policies;

(6) Organizational charts and administrative manuals; and

(7) Job descriptions.

(b) An LEA that is a grantee under 34 CFR Parts 251 through 254 shall have on file, and submit to the Secretary on request, the names and addresses of the members of the LEA's parent committee, and the by-laws adopted by the parent committee.

(20 U.S.C. 241aa-241ff, 1211a, 3385, 3385a)

Subpart A-General

§ 251.1 What is the purpose of this program?

This program provides financial assistance under Part A of the Indian Education Act to develop and carry out elementary and secondary school projects that meet the special educational and culturally related academic needs of Indian children.

(Pub. L. 81-874, Section 302(a); 20 U.S.C. 241aa(a); and Pub. L. 95-561, Section 1146; 20 U.S.C. 241bb-1)

§ 251.2 Who is eligible to apply?

(a) Local educational agencies. (1) A local educational agency (LEA) is entitled to receive a grant if the number of Indian children enrolled in that agency's schools is either

(i) 10 or more; or

(ii) At least half the total enrollment for that agency.

(2) However, an LEA may apply without regard to the enrollment requirements of paragraph (a)(1) of this section if it is located

(i) In Alaska, California, or Oklahoma; or

(ii) On, or in proximity to, an Indian reservation.

(Pub. L. 81-874, Section 303(a); 20 U.S.C. 241bb(a))

(b) Tribal schools. An Indian tribe, or an organization that is controlled or sanctioned by an Indian tribal government, that operates a school for the children of that tribe, is eligible to receive a grant on behalf of that school if the school either

(1) Provides its students an educational program that meets the standards established by the Bureau of Indian Affairs under Section 1121 of the Education Amendments of 1978 (25 U.S.C. 2001), which requires the establishment of standards for the basic education of Indian children in Bureau of Indian Affairs schools; or

(2) Is operated by that tribe or organization under a contract with the Bureau of Indian Affairs in accordance with the Indian Self-Determination and Education Assistance Act, Pub. L. 93-638.

(Pub. L. 95-561, Section 1146; 20 U.S.C. 241bb-1)

§ 251.3 Applicability of this part to local educational agencies and tribal

schools.

(a) Applicable to LEAs. All the provisions of this Part 251, except those applicable by their terms only to tribal schools, apply to applicants or grantees that are LEAS.

(b) Applicable to tribal schools. The following provisions of this Part 251 apply to applicants or grantees applying for or receiving assistance to support tribal schools, except to the extent that they refer to a parent committee.

(1) Section 251.6, relating to the supplanting of other funds.

(2) Section 251.10, relating to authorized activities.

(3) Sections 251.21 through 251.24, relating to the development of a project.

(4) Section 251.25(b), relating to the contents of an application.

(5) Section 251.26, relating to continuation awards.

(6) Sections 251.30 and 251.31, relating to the award of grants.

(7) Section 251.40(n), relating to student eligibility forms.

§ 251.4 Other applicable regulations.

(a) The provisions of 34 CFR Parts 75 and 250 apply to this program.

(b) Grantees under this program are subject to the provisions of 34 CFR 74.102 through 74.105(b), relating to programmatic changes and budget revisions.

(Pub. L. 81-874, Sections 302-307; 20 U.S.C. 241aa-241ff)

§ 251.5 Maintenance of effort.

(a) The Secretary does not make payments to an LEA for any fiscal year unless the appropriate State educational agency (SEA) finds that the combined fiscal effort of that LEA and the State with respect to the provision of free public education by that LEA for the preceding fiscal year was not less than the combined fiscal effort for that purpose for the second preceding fiscal year.

(b) (1) For the purpose of making the finding described in paragraph (a)

of this section, an SEA may compute combined fiscal effort on the basis of either aggregate expenditures or per pupil expenditure.

(2) "Aggregate expenditures" means expenditures by the LEA and the State for free public education provided by that LEA, including expenditures for administration, instruction, attendance and health services, pupil transportation services, operation and maintenance of plant, fixed charges, and net expenditures to cover deficits for food services and student body activities, but not including expenditures for community services, capital outlay and debt service, or any expenditures from funds granted under any Federal program of assistance.

(3) "Per pupil expenditure" means aggregate expenditures divided by the number of pupils in average daily attendance at the LEA's schools-as determined in accordance with State law-during the fiscal year for which the computation is made.

(Pub. L. 81-874, Section 306(b)(2); 20 U.S.C. 241ee(b)(2))

§ 251.6 Prohibition on supplanting other funds.

A grantee shall use funds received under this program to supplement, and, to the extent practical, increase the level of State, local, or other Federal funds that would, in the absence of grant funds, be made available by the recipient for the education of Indian children. In addition, a grantee should, to the extent feasible, coordinate the use of funds received under this program with those State, local, or other Federal funds. A grantee may not, however, use grant funds to supplant those State, local, or other Federal funds.