# Applicability of Section 504 of the Rehabilitation Act to Tribally Controlled Schools

> Department of Justice Office of Legal Counsel · November 16, 2004

URL: https://www.frixlaw.com/law-library/cases/4119434

## Case

- **Court:** Department of Justice Office of Legal Counsel
- **Decided:** November 16, 2004
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Applicability of Section 504 of the Rehabilitation Act to
Tribally Controlled Schools
Section 504 of the Rehabilitation Act generally applies to tribally controlled schools that receive federal
financial assistance from the Department of Justice.

November 16, 2004

MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY GENERAL
OFFICE OF JUSTICE PROGRAMS

You have asked us whether section 504 of the Rehabilitation Act, 29 U.S.C.
§ 794 (2000), generally applies to tribally controlled schools that receive federal
financial assistance from the Department of Justice. We conclude that it does.1

I.

We begin our analysis with an overview of the relevant interpretive principles.
The Supreme Court “ha[s] stated time and again” that we “must presume that a
legislature says in a statute what it means and means in a statute what it says there.
When the words of a statute are unambiguous, then, this first canon is also the last:
‘judicial inquiry is complete.’” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–
54 (1992) (citations omitted). When addressing the effects of statutes governing
Indian tribes, however, the Court has articulated two additional canons of con-
struction. First, in what is really a variation of the plain meaning rule, the Court
has said that “it is now well settled by many decisions of th[e] [Supreme] Court

1
The original opinion request, sent to us by your predecessor, framed the question as “whether the
doctrine of tribal sovereign immunity” would prevent the Office of Justice Programs from investigating
an allegation of discrimination by a tribal school. See Memorandum for Randolph D. Moss, Assistant
Attorney General, Office of Legal Counsel, from Mary Lou Leary, Acting Assistant Attorney General,
Office of Justice Programs, Re: Request for Office of Legal Counsel Review (Nov. 29, 2000). The
doctrine of tribal sovereign immunity, however, is inapplicable to investigations brought by the federal
Government. See, e.g., United States v. Red Lake Band of Chippewa Indians, 827 F.2d 380, 382–83
(8th Cir. 1987); Fla. Paraplegic Ass’n v. Miccosukee Tribe, 166 F.3d 1126, 1134–35 (11th Cir. 1999);
Quileute Indian Tribe v. Babbitt, 18 F.3d 1456, 1459–60 (9th Cir. 1994). We therefore address whether
section 504 of the Rehabilitation Act generally applies to tribally controlled schools. We have also
solicited the views of other components of the Department of Justice and agencies that would be
affected by this opinion. See Memorandum for Daniel L. Koffsky, Acting Assistant Attorney General,
Office of Legal Counsel, from Ralph F. Boyd, Jr., Assistant Attorney General, Civil Rights Division,
Re: Applicability of Certain Civil Rights Statutes to Indian Tribes and Tribally-Operated Entities (Aug.
21, 2001); Memorandum for Leslie Simon, Attorney-Adviser, Office of Legal Counsel, from Timothy
W. Joranko, Deputy Director, Office of Tribal Justice, Re: Applicability of Civil Rights Statutes to
Indian Tribes and Tribally-Operated Entities (Sept. 20, 2001); Letter for Daniel L. Koffsky, Acting
Assistant Attorney General, Office of Legal Counsel, from Steve Winnick, Deputy General Counsel,
Dep’t of Education (Aug. 17, 2001). (The Department of the Interior and the Environmental Protection
Agency did not provide formal views in response to our request.)

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Applicability of Section 504 of the Rehabilitation Act to Tribally Controlled Schools

that a general statute in terms applying to all persons includes Indians and their
property interests.” Fed. Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99,
116 (1960). Thus, it is an established “rule[] . . . that general Acts of Congress
apply to Indians as well as to all others in the absence of a clear expression to the
contrary.” Id. at 120. See also Superintendent of Five Civilized Tribes v. Comm’r
of Internal Revenue, 295 U.S. 418, 420 (1935) (upholding application of federal
income tax to Indians where “[t]he terms of the . . . Act are very broad, and
nothing there indicates that Indians are to be excepted”). Second, the Supreme
Court has also recognized “a principle deeply rooted in this Court’s Indian
jurisprudence: ‘[S]tatutes are to be construed liberally in favor of the Indians, with
ambiguous provisions interpreted to their benefit.’” Cnty. of Yakima v. Confeder-
ated Tribes, 502 U.S. 251, 268–69 (1992) (quoting Montana v. Blackfeet Tribe of
Indians, 471 U.S. 759, 766 (1985)).
At first blush, one might think these two canons to be in tension: On the one
hand, general statutes apply to Indians unless they are expressly excluded, while
on the other, any statutory ambiguities should be construed to the benefit of
Indians. In fact, however, they are easily reconciled. A generally worded statute
the plain terms of which naturally encompass Indian tribes or tribal entities is not
ambiguous, and a statute that is ambiguous as to whether it encompasses Indian
tribes is not a generally worded statute the plain terms of which naturally encom-
pass Indian tribes. See South Carolina v. Catawba Indian Tribe, 476 U.S. 498, 506
(1986) (“The canon of construction regarding the resolution of ambiguities in
favor of Indians . . . does not permit reliance on ambiguities that do not exist . . .”);
Chickasaw Nation v. United States, 534 U.S. 84, 88–89 (2001) (declining to find
ambiguity despite poor drafting of statute). In other words, a broad statute the
terms of which naturally encompass Indian tribes is unambiguously broad, and so
unambiguously encompasses Indian tribes. In such a case, the ambiguity-resolving
canon is simply inapplicable.
The cases setting forth these two canons are illustrative. Those applying the
former rule—viz., that general statutes apply to Indian tribes unless specifically
excepted—involve broad but unambiguous statutory language. Tuscarora, for
example, held that tribally owned lands were subject to the eminent domain
powers of the Federal Power Act, which authorized the condemnation of “‘the
lands or property of others necessary to the construction, maintenance, or
operation’” of licensed development projects. Tuscarora, 362 U.S. at 115 (quoting
section 21 of the Federal Power Act) (emphasis added). As the Court explained,
“[t]hat section does not exclude lands or property owned by Indians, and, upon the
authority of the cases cited, we must hold that it applies to these lands owned in
fee simple by the Tuscarora Indian Nation.” Id. at 118. Likewise, Choteau v.
Burnet, 283 U.S. 691 (1931), held that the Revenue Act, which “subjects the
income of ‘every individual’ to tax” and “includes income ‘from any source
whatever,’” id. at 693, 694 (quoting the Revenue Act) (emphases added), applied
to the income of an Indian derived from his shares in the oil and gas leases of an

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Indian tribe, observing that “[t]he intent to exclude must be definitely expressed,
where, as here, the general language of the Act laying the tax is broad enough to
include the subject-matter,” id. at 697. See also Superintendent of Five Civilized
Tribes, 295 U.S. at 419–20 (holding that an Indian’s income derived from tribal
lands was subject to the Revenue Act) (citing Choteau); Henkel v. United States,
237 U.S. 43, 49 (1915) (holding that Secretary of the Interior could purchase or
condemn Indian-owned land pursuant to the Reclamation Act of 1902, which
authorized him “‘to acquire [by purchase or condemnation] any rights or proper-
ty’” necessary to carry out the provisions of the Act and “‘to perform any and all
acts . . . necessary and proper for the purpose of carrying the provisions of this
act . . . into effect’”) (quoting Reclamation Act of 1902) (emphases added); Okla.
Tax Comm’n v. United States, 319 U.S. 598, 600, 607 (1943) (holding that the
estate of an Oklahoma Indian was subject to state inheritance and estate taxes;
noting that “[t]he language of the statutes does not except either Indians or any
other persons from their scope” and that “[i]f Congress intends to prevent the State
of Oklahoma from levying a general non-discriminatory estate tax applying alike
to all its citizens, it should say so in plain words”).
In contrast, the Supreme Court’s cases applying the latter ambiguity-resolving
canon did not involve broad statutes of general application, but rather, statutes or
treaties that the Court actually regarded as ambiguous as to their application to
particular Indians. In Yakima, for example, the Court concluded that a statute that
authorized a state to subject certain Indian-owned land to state “‘taxation of . . .
land,’” 502 U.S. at 258 n.1 (quoting 25 U.S.C. § 349), did not authorize the state to
subject such land to an “excise tax on sales of fee land,” id. at 268 (emphasis
added). Justice Scalia, writing for the Court, explained:

[T]he General Allotment Act explicitly authorizes only “taxation
of . . . land,” not “taxation with respect to land,” “taxation of transac-
tions involving land,” or “taxation based on the value of land.” Be-
cause it is eminently reasonable to interpret that language as not in-
cluding a tax upon the sale of real estate, our cases require us to
apply that interpretation for the benefit of the Tribe.

Id. at 269. Likewise, in Bryan v. Itasca County, 426 U.S. 373 (1976), the Court
held that the statute that gave the “‘civil laws of such State . . . that are of general
application . . . the same force and effect within such Indian country as they have
elsewhere,’” id. at 377 (quoting 28 U.S.C. § 1360(a)), did not allow a state to
impose its tax laws on reservation Indians. Read in the context of a statute that was
intended “to redress the lack of adequate Indian forums for resolving private legal
disputes between reservation Indians, and between Indians and other private
citizens, by permitting the courts of the States to decide such disputes,” the Court
concluded that the emphasized phrase merely “authorize[d] application by the state
courts of their rules of decision to decide such disputes.” Id. at 383–84. And in

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Applicability of Section 504 of the Rehabilitation Act to Tribally Controlled Schools

Montana v. Blackfeet Tribe, 471 U.S. 759, 767–68 (1985), the Court held that a
1938 statute that repealed “‘[a]ll . . . or parts of Acts inconsistent herewith,’” id. at
764 (quoting the 1938 Act), did not leave intact a 1924 statute authorizing states to
tax the income from Indian oil and gas leases: the 1938 Act’s repealer clause, the
Court explained, “[could not] be taken to incorporate consistent provisions of
earlier laws,” id. at 767. See also id. at 767–68 (“The tax proviso in the 1924 Act
states that ‘the production of oil and gas and other minerals on such lands may be
taxed by the State in which said lands are located . . . .’ Even applying ordinary
principles of statutory construction, ‘such lands’ refers to ‘[u]nallotted land . . .
subject to lease for mining purposes . . . under section 397 [the 1891 Act].’ When
the statute is ‘liberally construed . . . in favor of the Indians,’ it is clear that if the
tax proviso survives at all, it reaches only those leases executed under the 1891
Act and its 1924 amendment.”) (citations omitted). In the same vein, the Court has
refused to resort to the ambiguity-resolving canon in the face of unambiguous
statutory language. See, e.g., Negonsott v. Samuels, 507 U.S. 99, 110 (1993)
(declining to apply ambiguity-resolving canon where a federal statute “quite
unambiguously confers jurisdiction on the State” to prosecute Indians for viola-
tions of state criminal law).
This point, that ambiguity-resolving canons do not overcome unambiguously
broad statutory text, is further illustrated in a Supreme Court case discussing a
similar—though even more restrictive—canon of construction: that “absent an
‘unmistakably clear’ expression of intent to ‘alter the usual constitutional balance
between the States and the Federal Government,’ we will interpret a statute to
preserve rather than destroy the States’ ‘substantial sovereign powers.’” Pa. Dep’t
of Corr. v. Yeskey, 524 U.S. 206, 208–09 (1998). In Yeskey, the Court addressed
the applicability of the Americans with Disabilites Act (“ADA”) to state prisons,
concluding that even though state prisons were nowhere specifically mentioned in
the ADA, the statute’s broad terms were unambiguous. The Court found that the
broadly defined term “public entity,” which included “‘any department, agency,
special purpose district, or other instrumentality of a State or States or local
government,’” id. at 210 (quoting 42 U.S.C. § 12131(B)), “plainly covers state
institutions without any exception that could cast the coverage of prisons into
doubt.” Id. at 209. It likewise rejected the contention that prisons do not provide to
prisoners the “benefits of the services, programs, or activities of a public entity,”
id. at 210 (quoting 42 U.S.C. § 12132): “Modern prisons,” the Court explained,
“provide inmates with many recreational ‘activities,’ medical ‘services,’ and
educational and vocational ‘programs,’ all of which at least theoretically ‘benefit’
the prisoners (and any of which disabled prisoners could be ‘excluded from
participation in’).” Id. See also id. at 210–11 (rejecting argument that the term
“qualified individual with a disability” was ambiguous as applied to prisoners).
In short, ambiguity-resolving canons do not overcome a broad but otherwise
unambiguous statutory command. To the contrary, a broad, generally worded

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statute the plain terms of which naturally encompass Indians should normally be
deemed to so apply unless Indians are expressly excluded from its application.

II.

With these general principles in mind, we now turn to applying them to section
504 of the Rehabilitation Act. Section 504 provides:

No otherwise qualified individual with a disability in the United
States . . . shall, solely by reason of her or his disability, be excluded
from the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal fi-
nancial assistance or under any program or activity conducted by any
Executive agency.

29 U.S.C. § 794(a) (emphases added). The question we must resolve is whether a
federally funded, tribally controlled school is a “program or activity” within the
meaning of this statute.
Applying standard canons of statutory construction, we believe that a “program
or activity” under section 504 unambiguously encompasses tribally controlled
schools. Section 504 defines a “program or activity” to include, among other
things, “all of the operations of” (1) “a local educational agency (as defined in
section 7801 of Title 20), system of vocational education, or other school system,”
29 U.S.C. § 794(b)(2)(B) (emphasis added); and (2) a “college, university, or other
postsecondary institution.” Id. § 794(b)(2)(A).2 These terms—“other school sys-
tem,” “other postsecondary institution”—are broadly phrased and admit of no

2
The full definition of a “program or activity” is as follows:
For the purposes of this section, the term ‘program or activity’ means all of the opera-
tions of—(1) (A) a department, agency, special purpose district, or other instrumen-
tality of a State or local government; or (B) the entity of such State or local govern-
ment that distributes such assistance and each such department or agency (and each
other State or local government entity) to which the assistance is extended, in the case
of assistance to a State or local government; (2)(A) a college, university, or other
postsecondary institution, or a public system of higher education; or (B) a local educa-
tional agency (as defined in section 7801 of Title 20), system of vocational education,
or other school system; (3)(A) an entire corporation, partnership, or other private or-
ganization, or an entire sole proprietorship—(i) if assistance is extended to such cor-
poration, partnership, private organization, or sole proprietorship as a whole; or (ii)
which is principally engaged in the business of providing education, health care, hous-
ing, social services, or parks and recreation; or (B) the entire plant or other compara-
ble, geographically separate facility to which Federal financial assistance is extended,
in the case of any other corporation, partnership, private organization, or sole proprie-
torship; or (4) any other entity which is established by two or more of the entities de-
scribed in paragraph (1), (2), or (3); any part of which is extended Federal financial
assistance.
29 U.S.C. § 794(b).

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Applicability of Section 504 of the Rehabilitation Act to Tribally Controlled Schools

exception for such entities merely because they are controlled by Indian tribes.
Congress, in fact, has used the precise phrase “school system” in other statutes to
refer to schools that receive funding from the Bureau of Indian Affairs (“BIA”),
including those that are tribally controlled, thus confirming that such schools are
covered under the Rehabilitation Act. See, e.g., 20 U.S.C.A. § 6316(g)(4) (West
2003) (corrective action must “take into account the unique circumstances and
structure of the Bureau of Indian Affairs-funded school system”); 25 U.S.C.A.
§ 2000 (West Supp. 2003) (acknowledging federal Government responsibility for
the “Bureau of Indian Affairs funded school system”).
We do not mean to say that every tribally controlled school would automatical-
ly fall within these terms. To be sure, we would expect that most tribally con-
trolled primary and secondary schools would be part of a “system of vocational
education” or “other school system,” and a tribally controlled school of higher
education would quite obviously be a “college, university, or other postsecondary
institution.” But we at least acknowledge the theoretical possibility that some
individual primary or secondary schools might not be considered part of an overall
“school system.” 29 U.S.C. § 794(b)(2)(B) (emphasis added). While such a school
might nevertheless fall within another category of “program[s] or activit[ies]”—a
term that includes “an entire corporation, partnership, or other private organiza-
tion, or an entire sole proprietorship . . . which is principally engaged in the
business of providing education,” id. § 794(b)(3)(A)(ii)—and thus still be covered
by section 504, it would be imprudent for us to draw such a conclusion as a
general matter outside the context of a specific case. For now, it is enough to say
that the general definition of a “program or activity” extends to tribally controlled
schools, provided that such schools meet the other specific requirements of that
definition.
Our conclusion that under standard principles of construction section 504 of the
Rehabilitation Act covers tribally controlled schools is confirmed by the numerous
other statutes that reflect this precise understanding. “[S]ubsequent legislation
declaring the intent of an earlier statute,” the Supreme Court has explained, “is
entitled to great weight in statutory construction.” Loving v. United States, 517
U.S. 748, 770 (1996) (citations omitted).3 And here, Congress has consistently
expressed in statutes its understanding of the scope of section 504. The Education
Amendments of 1978, for example, directed the Secretary of the Interior to
“immediately begin to bring all schools, dormitories, and other facilities operated
by the Bureau [of Indian Affairs] or under contract with the Bureau in connection

3
Although subsequent legislation is entitled to great weight in statutory interpretation, the same is
not true of the legislative history that accompanies the subsequent legislation. “With respect to
subsequent legislation, . . . Congress has proceeded formally through the legislative process. A mere
statement in a conference report of such legislation as to what the Committee believes an earlier statute
meant is obviously less weighty.” Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102,
118 n.13 (1980).

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with the education of Indian children into compliance with . . . section 504 of the
Rehabilitation Act of 1973 (29 U.S.C. § 794).” Pub. L. No. 95-561, § 1125, 92
Stat. 2143, 2319 (1978). Congress recently reiterated this position in the No Child
Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425 (2002), which
requires that “[t]he Secretary shall immediately begin to bring all schools,
dormitories, and other Indian education-related facilities operated by the Bureau or
under contract or grant with the Bureau, into compliance with . . . section 794 of
Title 29 [section 504]; and . . . the Americans with Disabilities Act of 1990.” 25
U.S.C.A. § 2005(b)(1) (West Supp. 2003). Cf. 25 U.S.C.A. § 4131(b)(6) (West
Supp. 2003) (providing explicit exemption from the broad anti-discrimination
requirements of Title VI for “actions by federally recognized tribes and the tribally
designated housing entities of those tribes” under the Native American Housing
Assistance and Self-Determination Act of 1996). These provisions serve to
confirm what the plain text of section 504 otherwise dictates: that tribally con-
trolled schools are covered by its requirements.
Before moving on, we pause to address a possible counter-argument. The defi-
nition of the term “local educational agency” that is incorporated in 29 U.S.C.
§ 794(b)(2)(B)’s definition of “program or activity” specifically includes certain
tribally controlled schools, but only for a limited purpose. In particular, the
Elementary and Secondary Education Act defines “[l]ocal educational agency” as
including:

an elementary school or secondary school funded by the Bureau of
Indian Affairs but only to the extent that including the school makes
the school eligible for programs for which specific eligibility is not
provided to the school in another provision of law and the school
does not have a student population that is smaller than the student
population of the local educational agency receiving assistance under
this chapter with the smallest student population, except that the
school shall not be subject to the jurisdiction of any State educational
agency other than the Bureau of Indian Affairs.

20 U.S.C.A. § 7801(26)(C) (West 2003) (emphasis added). It could be argued that
because at least some tribally controlled schools—viz., “elementary school[s] or
secondary school[s] funded by the Bureau of Indian Affairs,” id.—are “local
educational agenc[ies],” Congress did not intend them also to be included as an
“other school system,” else inclusion in the former would be superfluous. See
United States v. Menasche, 348 U.S. 528, 538–39 (1955) (“It is our duty ‘to give
effect, if possible, to every clause and word of a statute.’”) (quoting Montclair v.
Ramsdell, 107 U.S. 147, 152 (1883)). The syllogism, in other words, would run as
follows: (1) a tribally controlled school is a “program or activity” only to the
extent that it is a “local educational agency”; (2) a tribally controlled school is a
“local educational agency” “only to the extent that including the school” in the

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Applicability of Section 504 of the Rehabilitation Act to Tribally Controlled Schools

definition of a “local educational agency” renders it eligible to receive certain
funds for which it would otherwise be ineligible; and (3) therefore, a tribally
controlled school is not a “local educational agency,” and hence, not a “program or
activity,” for any other purpose, including section 504’s substantive anti-
discrimination provisions.
We find this argument highly strained and implausible. The inclusion of BIA-
funded schools generally within the term “other school system” in section 504
does not render superfluous the inclusion of some BIA-funded schools in the
generally applicable definition of “local educational agency.” Their inclusion in
that latter definition serves a specific function: It gives BIA-funded schools access
to non-BIA funds for which only local educational agencies are eligible and for
which, absent this definition, BIA-funded schools would be ineligible. See, e.g., 20
U.S.C.A. § 1413 (2000 & West Supp. 2003) (local educational agencies eligible
for assistance for educating children with disabilities); 20 U.S.C.A. § 6302 (West
2003) (authorization of grants to local educational agencies). At the same time,
this definition prevents BIA-funded schools from double-dipping into funds for
which both local educational agencies and BIA-funded schools are eligible. See,
e.g., 20 U.S.C.A. § 7269(a) (West 2003) (authorizing grants, contracts, and co-
operative agreements with “State educational agencies, local educational agencies,
or Indian tribes, for the purpose of increasing student access to quality mental
health care”); 20 U.S.C.A. § 7253c(a)(1) (West 2003) (authorizing grants and
contracts with “State educational agencies, local educational agencies, institutions
of higher education, other public agencies, and other private agencies and organi-
zations (including Indian tribes and Indian organizations . . .) to assist . . . in
carrying out programs or projects . . . designed to meet the educational needs of
gifted and talented students”). In contrast, inclusion of tribally controlled schools
in the “other school system” prong of the Rehabilitation Act’s definition of
“program or activity” serves the entirely separate purpose of rendering these
schools subject to that Act’s substantive requirements.4 Each provision, in other

4
We note that the statutory and legislative history of this provision is consistent with our conclu-
sion. The Rehabilitation Act’s definition of “program or activity” has long included “local educational
agencies” as defined in the Elementary and Secondary School Act. Prior to 1994, however, the
definition of “local educational agency” (“LEA”) in the Elementary and Secondary School Act made
no mention of Indian tribes or BIA-funded schools. The Improving America’s Schools Act of 1994
(“IASA”) amended this definition to extend to BIA-funded schools for the sole purpose of allowing
such schools to receive federal funds for which they would otherwise not be eligible. See Pub. L. No.
103-382, § 101, 103 Stat. 3518, 3889 (1994); 20 U.S.C. § 8801(18)(C) (1994); see also 140 Cong. Rec.
27,842, 27,848 (1994) (remarks of Sen. Kennedy) (“Under current law, Bureau schools are not covered
by the definition of LEA, so, except for a few programs in which they have been specifically included,
these schools could not benefit from the wide range of Federal grants and services available to public
schools through the eligibility of their LEA’s. . . . The first provision defines virtually all Bureau
funded schools as LEA’s, except in those cases where a specific statute already makes provision for
their eligibility, as in Chapter 1 and Even Start. This exception ensures that there is no double benefit
for Bureau schools.”).

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words, serves a separate and independent function, and neither provision renders
the other superfluous.
Accordingly, we conclude that under standard canons of statutory construction,
section 504 of the Rehabilitation Act would encompass tribally controlled
schools.5

III.

The conclusions above have rested on the application of the standard principles
of construction described in Part I, supra. Several courts of appeals, however, have
applied yet another canon of construction. These courts have found an exception to
the Tuscarora rule for a statute that “touches ‘exclusive rights of self-governance
in purely intramural matters,’” unless the law specifically references Indian tribes.
Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113, 1116 (9th Cir. 1985)
(citation omitted).6 In such a case, these courts have explained, the Tuscarora rule
is inapplicable, and instead, the generally worded statute is deemed not to apply to
Indian tribes unless it explicitly states to the contrary.7 As described in Part III.A,

5
Nor are tribally controlled schools exempt from the Rehabilitation Act under the Tribally Con-
trolled Schools Act of 1988 (“TCSA”), 25 U.S.C.A. §§ 2501–2511 (2001 & West Supp. 2004). The
TCSA provides, in relevant part, that “[f]unds allocated to a tribally controlled school . . . shall be
subject to the provisions of this chapter and shall not be subject to any additional restriction, priority, or
limitation that is imposed by the Bureau [of Indian Affairs] with respect to funds provided under—(i)
title I of the Elementary and Secondary Education Act of 1965; (ii) the Individuals with Disabilities
Education Act; or (iii) any Federal education law other than title XI of the Education Amendments of
1978,” and that “Indian tribes and tribal organizations to which grants are provided under this part, and
tribally controlled schools for which such grants are provided, shall not be subject to any requirements,
obligations, restrictions, or limitations imposed by the Bureau that would otherwise apply solely by
reason of the receipt of funds provided under any law referred to in clause (i), (ii), or (iii).” 25 U.S.C.
§ 2503(b)(1) (emphasis added). According to the Departments of Education and the Interior, this
provision simply means “that the BIA cannot impose additional requirements under Title I, IDEA and
other federal education laws beyond what is required in the federal law.” Letter for Noel J. Francisco,
Deputy Assistant Attorney General, Office of Legal Counsel, from Brian W. Jones, General Counsel,
Dep’t of Education at 2 (July 15, 2004); see also Letter for Noel J. Francisco, Deputy Assistant
Attorney General, Office of Legal Counsel, from Christopher B. Chaney, Associate Solicitor, Dep’t of
the Interior (Sept. 14, 2004) (agreeing with the Department of Education on this point). In addition, the
Rehabilitation Act is not a “Federal education law,” any more so than would be a law that generally
prohibits robbery, including robberies that take place on school grounds. It is, rather, a general
antidiscrimination law that applies to a broad range of institutions, including schools, and to all federal
financial assistance programs, not just those administered by the BIA under federal education laws.
6
See, e.g., Fla. Paraplegic Ass’n, 166 F.3d at 1129; Smart v. State Farm Ins. Co., 868 F.2d 929,
935 & n.5 (7th Cir. 1989); Reich v. Mashantucket Sand & Gravel, 95 F.3d 174, 175, 179 (2d Cir.
1996); Nero v. Cherokee Nation of Okla., 892 F.2d 1457, 1462–63 (10th Cir. 1989); EEOC v. Fond du
Lac Heavy Equip. & Constr. Co., 986 F.2d 246, 249 (8th Cir. 1993).
7
These courts have also recognized two other “exceptions” to the Tuscarora rule: (1) where “the
application of the law to the tribe would ‘abrogate rights guaranteed by Indian treaties’”; and (2) where
“there is proof ‘by legislative history or some other means that Congress intended [the law] not to apply
to Indians on their reservations.’” Coeur d’Alene Tribal Farm, 751 F. 2d at 1116. We do not address
these applications of the rule except to note that they have a stronger basis than the one discussed in

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Applicability of Section 504 of the Rehabilitation Act to Tribally Controlled Schools

infra, the basis for this exception is unclear. In any event, for the reasons described
in part III.B, infra, we conclude that this canon is inapplicable to the question
whether section 504 of the Rehabilitation Act extends to tribally controlled
schools.

A.

The Supreme Court has never explicitly adopted an exception to the Tuscarora
rule for generally applicable statutes that “touch[] ‘exclusive rights of self-
governance in purely intramural matters.’” The “self-governance” exception
appears to have originated in the Ninth Circuit’s decision in United States v.
Farris, 624 F.2d 890, 893 (9th Cir. 1980).8 It has since been recognized by a
number of courts of appeals, see supra note 6, though significantly, we are aware
of only a few instances in which the self-governance exception has actually been
applied to narrow an otherwise applicable generally worded statute.9 It is unclear,
however, whether this exception is consistent with Supreme Court precedent.

text. The first involves a conflict between two laws—an Indian treaty and a broadly worded statute; the
choice to give one preference over the other is therefore unavoidable. See, e.g., Minnesota v. Mille Lacs
Band of Chippewa Indians, 526 U.S. 172, 202–03 (1999) (“Congress may abrogate Indian treaty rights,
but it must clearly express its intent to do so.”). And the second exception involves nothing more than
determining the statute’s meaning by reference to its legislative history, which is different from limiting
the otherwise plain reach of a statute’s broad commands. Neither of these applications is here at issue,
because we face no treaty with which section 504 of the Rehabilitation Act would conflict, nor any
legislative history that would limit section 504’s otherwise broad reach.
8
In Farris, the court suggested that “reservation Indians may well have exclusive rights of self-
governance in purely intramural matters, unless Congress has removed those rights through legislation
explicitly directed at Indians.” 624 F.2d at 893. As examples of such “purely intramural matters,” the
court subsequently listed “conditions of tribal membership, inheritance rules, and domestic relations.”
Coeur d’Alene Tribal Farm, 751 F.2d at 1116. As discussed below, see infra Part. III.B, the Supreme
Court has recognized tribal authority to regulate these three areas in the absence of federal law to the
contrary. See, e.g., United States v. Wheeler, 435 U.S. 313, 322 (1978). The Supreme Court, however,
did not suggest that federal law overcomes such tribal authority only if it is explicitly directed at
Indians.
9
No court of appeals has addressed the application of the self-governance exception in the context
of tribal schools. Most court of appeals cases have addressed whether a tribe’s commercial activities
fell within this exception, with the majority holding that they did not. See Farris, 624 F.2d at 893; Fla.
Paraplegic Ass’n, 166 F.3d at 1129–30 (ADA applicable to tribally owned and operated restaurant and
entertainment facility); Coeur d’Alene Tribal Farm, 751 F.2d at 1116 (OSHA applicable to tribally
owned and operated farm); Dep’t of Labor v. Occupational Safety & Health Comm’n, 935 F.2d 182,
186 (9th Cir. 1991) (OSHA applicable to tribally owned timber mill); Smart, 868 F.2d at 935 & n.5
(ERISA applicable to benefit plan of tribally owned health care center operating solely on reservation);
Mashantucket Sand & Gravel, 95 F.3d at 175, 179 (OSHA applicable to tribally owned construction
business that functioned as “an arm of the tribe”); NLRB v. Chapa De Indian Health Program, Inc., 316
F.3d 995 (9th Cir. 2003) (NLRA applicable to contractor that provided health care to tribal members);
cf. United States v. Funmaker, 10 F.3d 1327, 1332 (7th Cir. 1993) (“The decision-making power of
Indian tribes ends . . . at the point when those decisions violate federal law designed to safeguard
important federal interests”; finding that district court had jurisdiction to apply criminal law alleged to
interfere with tribal self-governance). We are aware of just three cases in which courts of appeals have

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The self-governance exception certainly seems to be in facial tension with the
Tuscarora rule, which itself acknowledges no exception to the principle that
“general Acts of Congress apply to Indians as well as to all others in the absence
of a clear expression to the contrary.” Tuscarora, 362 U.S. at 120. See also
Choteau, 283 U.S. at 696 (“The intent to exclude must be definitely expressed,
where, as here, the general language of the Act laying the tax is broad enough to
include the subject matter.”). Indeed, the exception seems to adopt, at least in
limited circumstances, the very rule that Tuscarora rejected. In particular,
Tuscarora confronted an earlier Supreme Court decision that had held that
“‘[u]nder the Constitution of the United States, as originally established, . . .
[g]eneral Acts of Congress did not apply to Indians, unless so expressed as to
clearly manifest an intention to include them,’” see Tuscarora, 362 U.S. at 115–16
(quoting Elk v. Wilkins, 112 U.S. 94, 99–100 (1884))—precisely the rule adopted
by the self-governance exception for laws that “touch[] ‘exclusive rights of self-
governance in purely intramural matters.’” Tuscarora, however, explicitly rejected
this rule, explaining that “[h]owever that may have been, it is now well settled by
many decisions of this Court that a general statute in terms applying to all persons
includes Indians and their property interests.” 362 U.S. at 116. Tuscarora
acknowledged no exception to this general principle for laws that “touch[]

actually asserted the self-governance exception as the basis for exempting tribal entities from otherwise
generally applicable federal statutes. In one, the court, contrary to the decisions above, applied the
exception to a tribal commercial entity in an employment dispute. See, e.g., Fond du Lac, 986 F.2d at
249 (Age Discrimination in Employment Act (“ADEA”) inapplicable to a dispute involving a tribe
member and tribally owned and operated construction company). Another applied the exception to an
employment dispute between the tribal housing authority and a tribal employee, see EEOC v. Karuk
Tribe Housing Auth., 260 F.3d 1071, 1073 (9th Cir. 2001) (finding ADEA inapplicable), and a third
held certain federal civil rights laws inapplicable to a claim that tribal membership had been denied to
certain individuals on account of their race, see Nero, 892 F.2d at 1463 (noting that “no right is more
integral to a tribe’s self-governance than its ability to establish its membership”). Cf. Taylor v. Ala.
Intertribal Council, 261 F.3d 1032 (11th Cir. 2001) (apparently applying self-governance exception to
find employment discrimination suit barred by tribal sovereign immunity). Although four other cases
are sometimes cited in support of the self-governance exception, on close analysis, we find these cases
inapposite. Reich v. Great Lakes Indian Fish & Wildlife Commission, 4 F.3d 490 (7th Cir. 1993), and
NLRB v. Pueblo of San Juan, 276 F.3d 1186 (10th Cir. 2002), are, in our view, best understood as
involving the ambiguity-resolving canon, not the self-governance exception to Tuscarora. See Great
Lakes, 4 F.3d at 494 (finding an “extrinsic ambiguity” in the statute because “[a] literal reading of [it]
would create a senseless distinction between Indian police [who were literally covered by the statute]
and all other public police [who were explicitly exempted from it]”); Pueblo of San Juan, 276 F.3d at
1191–98 (repeatedly citing the ambiguity-resolving canon to hold that a tribal right-to-work ordinance
was not preempted by the National Labor Relations Act). And Donovan v. Navajo Forest Products
Industries, 692 F.2d 709 (10th Cir. 1982), and EEOC v. Cherokee Nation, 871 F.2d 937, 938–39 (10th
Cir. 1989), involved conflicts between a generally applicable statute and a treaty right, which, we have
explained, stands on different footing than the exception for intramural activities. See supra note 6. See
also Navajo Forest, 692 F.2d at 711 (“Tuscarora did not . . . involve an Indian treaty. Therein lies the
distinguishing feature between the case at bar and the Tuscarora line of cases, which stand for the rule
that under statutes of general application Indians are treated as any other person, unless Congress
expressly excepts them therefrom.”); Cherokee Nation, 871 F.2d at 938 n.3 (asserting that “the so-
called Tuscarora rule is not applicable to treaty cases such as this one”).

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‘exclusive rights of self-governance in purely intramural matters.’” This is signi-
ficant because the law at issue in that case, the Federal Power Act, authorized the
recipient of a federal license to condemn land owned by an Indian tribe—a law
that would seem to affect tribal self-government. Id. at 123–24. Indeed, it was the
impact of the Federal Power Act on “the tribal way of life” that caused Justice
Black to dissent in that case. Id. at 131–42 (Black, J., dissenting) (objecting to
majority’s application of Federal Power Act to tribal homeland in the absence of
clear congressional authorization as contrary to Congress’s longstanding policy of
protecting Indian reservations).
Nor does the Supreme Court case law cited by the courts of appeals seem to
support a self-governance exception to the Tuscarora rule. These courts have
generally cited the following Supreme Court cases in support of the exception:
Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978); Roff v. Burney, 168 U.S. 218
(1897); Jones v. Meehan, 175 U.S. 1 (1899); United States v. Quiver, 241 U.S. 602
(1916); United States v. Dion, 476 U.S. 734 (1986); and Merrion v. Jicarilla
Apache Tribe, 455 U.S. 130 (1982). See, e.g., Farris, 624 F.2d at 893; Fond du
Lac, 986 F.2d at 248–49; Navajo Forest, 692 F.2d at 713. But it is difficult to see
how any of these cases supports the self-governance exception. Unlike numerous
decisions of the courts of appeals, none of these Supreme Court cases explicitly
acknowledges an exception to the Tuscarora rule. Nor do they seem to support
such an exception by implication. Two, for example, did not involve generally
applicable statutes, but rather, statutes that specifically applied to Indians and
Indian tribes; the only issue, then, was the scope of their coverage. See Santa
Clara Pueblo, 436 U.S. at 55–56 (interpreting the scope of the Indian Civil Rights
Act); Quiver, 241 U.S. at 605 (interpreting a statute providing that “‘so much of
the laws of the United States as provides for the punishment of crimes committed
within any place within the sole and exclusive jurisdiction of the United States
shall be in force in the Indian country’”). Others, while recognizing certain areas
of regulation as central to Indian self-government, involved no conflict with
federal law, generally applicable or otherwise. See Roff, 168 U.S. at 222 (tribal
citizenship); Jones, 175 U.S. at 29 (inheritance rights); Jicarilla Apache Tribe, 455
U.S. at 141 (tribal authority to tax non-Indians who conduct business on reserva-
tion). And one, in addition to involving a purported conflict with a treaty (as
opposed to an undefined notion of self-government), see supra note 7, actually
found that the treaty right was abrogated by the generally applicable federal law.
See Dion, 476 U.S. at 738 (Eagle Protection Act abrogated Indian treaty hunting
rights).
In short, we simply cannot say with any confidence that the self-governance
exception to the Tuscarora rule reflects a proper reading of Supreme Court
precedent. In the end, however, we need not resolve this question. For the reasons
explained below, we conclude that this self-governance exception, even assuming
its validity, does not bar application of section 504 of the Rehabilitation Act to
tribally controlled schools.

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B.

Even assuming arguendo that there is an exception to the Tuscorora rule for
general acts of Congress that touch upon the tribes’ “exclusive rights of self-
governance in purely intramural matters,” we conclude that this self-governance
exception is inapplicable to this case.
First of all, it is unclear whether this exception would encompass tribal schools
at all. It is, of course, true that, as a general matter, education is central to self-
government. But this exception to Tuscarora (assuming it exists) arguably is more
limited. That is, it arguably encompasses not any activity that is central to self-
government, but rather, only those activities that have, as a historical matter, been
left to the control of the Indian tribes, free from federal interference, as part of
their residual sovereignty—in other words, only those activities that have in fact
been left within the control of the Indian tribes. Hence, in describing the rights of
Indian tribes that are central to their internal self-government, the Supreme Court
has consistently limited its enumeration to rules governing tribal membership,
inheritance, and domestic relations. See, e.g., Wheeler, 435 U.S. at 322 & n.18
(“unless limited by treaty or statute, a tribe has the power to determine tribe
membership, to regulate domestic relations among tribe members, and to prescribe
rules for the inheritance of property”) (citations omitted); Santa Clara Pueblo, 436
U.S. at 55–56 (citing “membership,” “inheritance rules,” and “domestic relations”
as examples of tribes’ “power to make their own substantive law in internal
matters”). See also Farris, 624 F.2d at 893 (identifying “tribal membership,”
“inheritance rules,” and “domestic relations” as possible examples of “exclusive
rights of self-governance in purely intramural matters”); supra note 8 (citing
cases).10 Tribal schools, in contrast, have, as a historical matter, been subject to
extensive federal control. See, e.g., Ramah Navajo Sch. Bd., Inc. v. Bureau of
Revenue of N.M., 458 U.S. 832, 839–40 (1982) (“The Federal Government’s
concern with the education of Indian children can be traced back to the first

10
We acknowledge, as discussed above, that some courts have taken a broader view of the excep-
tion. See Fond du Lac, 986 F.2d at 249 & n.3 (subjecting employment relationship between tribal
member and tribal business to federal control and supervision “dilutes the sovereignty of the tribe”;
recognizing disagreement with other courts); Karuk Tribe, 260 F.3d at 1080–81 (exception applies to
purely internal employment dispute between tribal member and tribal government, where tribal
government is providing a governmental service). These decisions, however, are in tension with those
of other courts that have interpreted the exception more narrowly. See, e.g., Mashantucket Sand &
Gravel, 95 F.3d at 179 (“tribal power, even regarding exclusively internal conflicts, may be limited by
treaty or federal statute, including statutes that are silent as to Indians,” noting that “the Coeur d’Alene
intramural exception does not include all aspects of sovereignty”) (citations omitted); Smart, 868 F.2d
at 935 & n.5 (rejecting view that exception applies whenever a statute “affects self-governance as
broadly conceived,” noting that “[a]ny federal statute applied to . . . a Tribe has the arguable effect of
eviscerating self-governance since it amounts to a subordination of the Indian government”); see also
supra note 8 (citing other cases). Moreover, neither Fond du Lac nor Karuk Tribe addresses the impact
of any congressional statutes that state Congress’s understanding of the scope of the statute in question
or the extensive federal regulation of the subject matter to which the statute arguably applies.

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treaties between the United States and the Navajo Tribe. Since that time, Congress
has enacted numerous statutes empowering the BIA to provide for Indian educa-
tion both on and off the reservation”) (footnote omitted) (citing statutes); 25
U.S.C.A. § 2000 (declaring “that the Federal Government has the sole responsibil-
ity for the operation and financial support of the Bureau of Indian Affairs funded
school system that it has established on or near Indian reservations and Indian trust
lands throughout the Nation for Indian children”).11

11
The BIA school system includes 184 elementary and secondary schools on 63 reservations in 23
states, of which 64 are operated directly by the BIA and 120 are operated by tribes under contract or
grant with the BIA; the BIA also operates two postsecondary institutions and provides funding to 25
tribal colleges and universities. See U.S. Dep’t of the Interior, Bureau of Indian Affairs, Office of
Indian Education Programs, Fingertip Facts 2004 at 7, available at http://www.oiep.bia.edu/ (last
visited Oct. 6, 2004)); see also Susan Faircloth & John W. Tippeconnic III, Issues in the Education of
American Indian and Alaska Native Students with Disabilities (Dec. 2000) (ERIC Clearinghouse EDO-
RC-00-3) (of the approximately 500,000 Indian and Alaska Native children who attend elementary and
secondary schools, about 90% attend regular public schools, about 10% attend BIA-funded schools,
and a small number attend private schools). See also Felix S. Cohen, Handbook of Federal Indian Law
680–83 (1982) (setting forth a detailed history of the BIA school system). These schools are subject to
extensive federal regulation. See, e.g., 25 U.S.C. § 2502(e) (Supp. I 2001) (grants provided to tribally
controlled schools “shall not terminate, modify, suspend, or reduce the responsibility of the Federal
Government to provide a program”); 25 U.S.C. § 450a(c) (2000) (“The Congress declares that a major
national goal of the United States is to provide the quantity and quality of educational services and
opportunities which will permit Indian children to compete and excel in the life areas of their choice,
and to achieve the measure of self-determination essential to their social and economic well-being.”);
25 U.S.C.A. § 2016 (West Supp. 2003) (authorizing the Secretary of the Interior to “prescribe such
rules and regulations as are necessary to ensure the constitutional and civil rights of Indian students
attending Bureau-funded schools, including such students’ rights to—(1) privacy under the laws of the
United States; (2) freedom of religion and expression; and (3) due process in connection with
disciplinary actions, suspensions, and expulsions”); 25 C.F.R. § 32.4(b), (w) (2004) (directing the
Assistant Secretary for Indian Affairs to “[e]nsure the constitutional, statutory, civil and human rights
of all Indian and Alaska Native students” and “[e]stablish and enforce policies and practices to
guarantee equal opportunity and open access to all Indian and Alaska Native students in all matters
relating to their education programs consistent with the provisions of the Privacy and Freedom of
Information Acts”). In addition, tribally controlled schools must, as a condition of receiving federal
grants and contracts, expressly agree to comply with section 504 of the Rehabilitation Act. See, e.g., 28
C.F.R. § 33.41(f)(10) (2003) (requiring assurance in application for Department of Justice grant
programs that applicant and all subgrantees “will comply . . . with the non-discrimination requirements
of . . . section 504 of the Rehabilitation Act of 1973”); id. § 33.52 (2003) (funding recipients are
subject to section 504); id. § 42.504(a) (2003) (“Every application for Federal financial assistance
[from the Department of Justice] shall contain an assurance that the program will be conducted in
compliance with the requirements of section 504 . . . .”); Grants and Cooperative Agreements with
State and Local Governments, OMB Circular No. A-102 (1997) (requiring executive agencies to use
standard assurances forms when awarding grants or cooperative agreements to tribal governments as
well as state and local governments); cf. Sanderlin v. Seminole Tribe of Fla., 243 F.3d 1282, 1286–89
(11th Cir. 2001) (fact that tribal government signed assurance did not waive tribal sovereign immunity
against private suit); Hagen v. Sisseton-Wahpeton Cmty. Coll., 205 F.3d 1040, 1044 n.2 (8th Cir. 2000)
(same). See also Dep’t of Transp. v. Paralyzed Veterans, 477 U.S. 597, 605 (1986) (acceptance of
funds under section 504 and similar statutes is “in the nature of a contract . . . the recipient’s acceptance
of the funds triggers coverage under the nondiscrimination provision”); Barnes v. Gorman, 536 U.S.
181, 186 (2002) (same).

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In the end, however, we need not decide whether the self-governance exception
would extend to tribal schools at all, for whatever the outer limits of the exception,
we do not believe it applies where, as here, Congress has specifically stated in
statutes its belief that a particular statute applies to Indians. At most, the self-
governance exception is a tool to infer whether Congress intended a statute to
apply to Indians where the statute does not explicitly so provide. And, as we have
explained, it is a tool that is in some tension with the ordinarily dispositive rule
that where a statute’s meaning is plain, that plain meaning must govern—a rule
reflected in Tuscarora. In this light, it is difficult to understand how a statute could
be interpreted contrary to its plain meaning, pursuant to a canon intended to infer
congressional intent in the face of silence, where Congress has, in other statutes,
unequivocally stated its understanding of the statute in question. And that is
precisely the situation that we confront. For Congress has specifically and
explicitly stated its view that section 504 of the Rehabilitation Act applies to
tribally controlled schools. As we have explained, the Education Amendments of
1978 directed the Secretary of the Interior to “immediately begin to bring all
schools, dormitories, and other facilities operated by the Bureau or under contract
with the Bureau in connection with the education of Indian children into compli-
ance with . . . section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794),” Pub.
L. No. 95-561, § 1125, 92 Stat. at 2319, and the No Child Left Behind Act of 2001
requires that “[t]he Secretary shall immediately begin to bring all schools,
dormitories, and other Indian education-related facilities operated by the Bureau or
under contract or grant with the Bureau, into compliance with . . . section 794 of
Title 29 [section 504].” 25 U.S.C. § 2005(b)(1). Accordingly, the self-governance
exception is simply inapplicable to this case.
We therefore conclude that section 504 of the Rehabilitation Act generally
applies to tribally controlled schools that receive federal financial assistance from
the Department of Justice.

NOEL J. FRANCISCO
Deputy Assistant Attorney General
Office of Legal Counsel

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4119434. Public record. Not legal advice.