Chapter 6 – IHS Tribal Consultation Policy

 

Title	Section
Introduction	6-6.1
Purpose	6-6.1A
Background	6-6.1B
Policy	6-6.1C
Responsibilities	6-6.2
Indian Tribes	6-6.2A
Indian Organizations	6-6.2B
Headquarters	6-6.2C
Area Directors	6-6.2D
Federal Service Unit Chief Executive Officers	6-6.2E
National Workgroups, Advisory Groups, and Committees	6-6.2F
Procedures	6-6.3
Consultative Relationship	6-6.3A
Tribal Consultation Mechanisms	6-6.3B
Tribal Consultation Parties	6-6.3C
Tribal Consultation Planning Steps	6-6.3D
Level of Tribal Consultation	6-6.3E
Official Tribal Correspondence	6-6.3F
Schedule for Tribal Consultation	6-6.3G
Policy Development through Tribal Consultation	6-6.3H
Documentation and Reporting	6-6.3I
HHS and State Facilitation	6-6.3J
Establishment of Joint Tribal/Federal Workgroups And/or Task Forces	6-6.4
IHS Budget Formulation	6-6.5
Timeframe	6-6.5A
Area Budget Formulation Teams	6-6.5B
Headquarters Budget Formulation Work Team	6-6.5C
National Tribal Budget Formulation Workgroup Session	6-6.5D
National Tribal Budget Formulation Workgroup	6-6.5E
IHS Budget Formulation Planning and Evaluation Meeting with Indian Tribes and Tribal Organizations	6-6.5F
IHS Budget Execution	6-6.6
New Funding	6-6.6A
Budget Information Disclosure	6-6.6B
Grants and Initiative-Related Funding	6-6.6C
IHS Tribal Consultation Performance and Collaboration	6-6.7
IHS Annual Report to HHS	6-6.7A
IHS Meeting Records, Evaluation, and Reporting	6-6.8
IHS Tribal Consultations Report Submitted to Indian Tribes and Tribal Organizations After Tribal Consultation Occurs	6-6.8A
IHS Reports Regarding Specific Issues Assigned to Workgroups/Task	6-6.8B
Tribal Consultation Results	6-6.8C
Conflict Resolution Process	6-6.9
Tribal Waiver	6-6.9A
Tribal Sovereignty	6-6.10
Philosophy	6-6.10A
IHS Employee Training	6-6.11
Definitions	6-6.12
Critical Events	6-6.12A
Deliberative Process Privilege	6-6.12B
Executive Order and Presidential Memoranda	6-6.12C
Indian Organization	6-6.12D
Indian Tribe	6-6.12E
Joint Tribal/Federal Workgroups and/or Task Forces	6-6.12F
Policies with Tribal Implications	6-6.12G
To the Extent Practicable and Permitted by Law	6-6.12H
Treaty	6-6.12I
Tribal Consultation	6-6.12J
Tribal Officials	6-6.12K
Tribal Organization	6-6.12L
Tribal Resolution	6-6.12M
Tribal Self-Governance	6-6.12N
Tribal Sovereignty	6-6.12O
Urban Indian Organization	6-6.12P
Summary	6-6.13
Acronyms	6-6.14
Addendum 1	6-6.15
Membership Notices	6-6.15A
Meeting Notices	6-6.15B
Membership Composition Workgroup/Task Forces	6-6.15C
Participation	6-6.15D

Since the formation of the Union, the United States (U.S.) recognizes Indian Tribes as sovereign nations. A unique government-to-government relationship exists between Indian Tribes and the Federal Government and acknowledges that the U.S. maintains certain treaty and trust responsibilities to Tribal Nations. This relationship is grounded in the U.S. Constitution, numerous treaties, statutes, Federal case law, regulations and executive orders that establish and define a trust relationship with Indian Tribes. This relationship is derived from the political and legal relationship that Indian Tribes have with the Federal Government and is not based upon race. An integral element of the government-to-government relationship is Tribal Consultation.

6-6.1  INTRODUCTION

The Indian Health Service (IHS) and Indian Tribes share the goal of health equity for American Indian and Alaska Native (AI/AN) people by ensuring that their access to critical health services is maximized to achieve optimal health status. To achieve this goal, it is essential that Indian Tribes and the IHS engage in diplomatic relations to ensure open, continuous, and meaningful Tribal Consultation. True consultation is an ongoing process that leads to information exchange, respectful dialogue, mutual understanding, and informed decision-making. Additionally, consultation requires that information obtained from Tribes be given meaningful consideration, and the IHS should strive for consensus with Tribes or a mutually desired outcome, to the extent practicable and permitted by law. The importance of consultation with Indian Tribes has been affirmed through Presidential Memoranda in 1994, 2004, 2009, 2021, and 2022, as well as, Executive Orders (EO) in 1998 and 2000. This policy implements the requirements of EO 13175 and the President’s Memorandum on Uniform Standards for Tribal Consultation, signed November 30, 2022, which further strengthen IHS’s consultation practices with Indian Tribes.

1.   Purpose.

   1. To formalize the requirement of the IHS to seek Tribal Consultation and participation of Indian Tribes in policy development and program activities to ensure that Tribal health priorities and goals are a meaningful part of the IHS’s decision-making process.
   2. To establish a minimum set of requirements and expectations with respect to Tribal Consultation and participation for the three levels of IHS management: Headquarters, Area Offices, and Service Units.
   3. To identify critical events for which Tribal Consultation and participation will be required for the three levels of IHS management: Headquarters, Area Offices, and Service Units.
   4. To require the IHS to consult with Indian Tribes on proposed, new, and existing health policies and programs.
   5. To identify critical events where partnerships and the inclusion of Indian organizations would complement Tribal Consultation with Indian Tribes.
   6. To promote and develop innovative methods of involving Indian Tribes in IHS policy development and in the decision-making processes of the IHS.
   7. To coordinate with the U.S. Department of Health and Human Services (HHS) Divisions/Regional Offices, State agencies, supporters of the Indian health system, and others to assist Indian Tribes to advocate for and advance Indian health priorities.
   8. To provide a single point of contact within the IHS for Indian Tribes to consult with the Agency and Area IHS Offices. The Deputy Director for Intergovernmental Affairs (DDIGA), IHS, is the point of contact responsible for compliance with this policy, ensuring identified timeframes are met, and holding all levels of management within the IHS responsible for the implementation of this policy.

2.   Background.  The implementation of this policy is in recognition of the unique legal and political relationship between the Federal Government and Indian Tribes, as affirmed in statutes, Executive Orders, and Presidential Memoranda, including but not limited to:

   1. Indian Self-Determination and Education Assistance Act (ISDEAA), Public Law (P.L.) 93-638 as amended;
   2. Indian Health Care Improvement Act (IHCIA), P.L. 94-437, as amended;
   3. Memorandum to the Heads of Executive Departments and Agencies from President William J. Clinton, April 29, 1994;
   4. Presidential Executive Order 13084, Consultation and Coordination with Indian Tribal Governments, May 14, 1998;
   5. Presidential Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, November 6, 2000;
   6. Presidential Memorandum, Government-to-Government Relationship with Tribal Governments, September 23, 2004;
   7. Presidential Memorandum on Tribal Consultation, November 5, 2009;
   8. Presidential Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships, January 26, 2021; and
   9. Presidential Memorandum on Uniform Standards for Tribal Consultation, November 30, 2022.

3.   Policy.  Before any action is taken that will significantly affect Indian Tribes, it is the IHS policy that, to the extent practicable and permitted by law, Tribal Consultation with Indian Tribes will occur. Such actions refer to policies that: 

   1. Have Tribal implications; and
   2. Have substantial direct effects on:
      1. One or more Indian Tribes, or
      2. The relationship between the Federal Government and Indian Tribes, or
      3. The distribution of power and responsibilities between the Federal Government and Indian Tribes.

   Tribal Consultation may also be initiated upon the request of one or more Indian Tribe(s). When such request is received, the IHS shall conduct an analysis, as soon as possible, to determine whether Tribal Consultation is appropriate. If the request for Tribal Consultation has Tribal implications, consistent with the definition in EO 13175, the IHS shall follow the applicable requirements for Tribal Consultation. The IHS shall respond to the Indian Tribe within a reasonable time period. The IHS may still engage in Tribal Consultation even if the Agency determines that a policy will not have Tribal implications, and should consider doing so, to the extent practicable and permitted by law, if the IHS determines that a policy is of interest to a Tribe or Tribes.

   Nothing in this policy waives the Government's deliberative process privilege. For example, in instances where the IHS is specifically requested by Members of Congress to respond to or report on proposed legislation, the development of such responses and of related policy is a part of the Executive Branch's deliberative process privilege and should remain confidential. In addition, in specified instances where Congress requires the IHS to work with Indian Tribes on the development of recommendations that may require legislation, such reports, recommendations, or other products are developed independent of an IHS position, the development of which is governed by Office of Management and Budget (OMB) Circular A-19.

   The following process objectives and guidelines will be used in the implementation of this policy:

   1. The IHS shall have an accountable process as defined in Section 6-6.3 of this policy to ensure meaningful and timely input by Tribal Officials is included in the development of policies that have Tribal implications. If Offices require technical assistance in implementing these sections, the DDIGA can provide and/or coordinate assistance.
   2. To the extent practicable and permitted by law, the IHS shall not promulgate any regulation that has Tribal implications, that imposes substantial direct compliance costs on Indian Tribes, and that is not required by statute, unless:
      1. The funds necessary to pay the direct costs incurred by the Indian Tribe(s) in complying with the regulation are provided by the Federal Government; or
      2. The IHS, prior to the formal promulgation of the regulation:
         1. Consulted with Indian Tribes early in the process of developing the proposed regulation;
         2. Provided a Tribal summary impact statement in a separately identified portion of the preamble to the regulation as it is to be issued in the Federal Register (FR), which consists of a description of the extent of the Agency’s prior Tribal Consultation with Tribal Officials, a summary of the nature of their concerns and the Agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of Tribal Officials have been met; and
         3. Made available to the Director, IHS, any written communications regarding the proposed regulations submitted to the Agency by Tribal Officials.
   3. To the extent practicable and permitted by law, the IHS shall not promulgate any regulation that has Tribal implications and that preempts Tribal law unless the IHS, prior to the formal promulgation of the regulation:
      1. Consulted with Tribal Officials early in the process of developing the proposed regulation;
      2. Provided a Tribal summary impact statement in a separately identified portion of the preamble to the regulation as it is to be issued in the FR, which consists of a description of the extent of the Agency’s prior Tribal Consultation with Tribal Officials, a summary of the nature of their concerns and the Agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of Tribal Officials have been met; and
      3. Made available to the Director, IHS, any written communications submitted to the Agency by Tribal Officials.
   4. On issues relating to Tribal self-governance, Tribal self-determination, Tribal trust resources, or Tribal treaty and other rights, the IHS shall make all practicable attempts where appropriate to use consensual mechanisms for developing regulations, including negotiated rulemaking.

6-6.2  RESPONSIBILITIES

1. Indian Tribes . The government-to-government relationship between the U.S. and Indian Tribes dictates that the principal focus for IHS Tribal Consultation is with Indian Tribes, individually and/or collectively. The IHS will conduct Tribal Consultation in a manner that prioritizes participation of official Tribal government leaders or their designees.
2. Indian Organizations . It is useful for the IHS to communicate with Indian organizations to solicit Indian Tribe(s)’s advice and recommendations. The government does not participate in government-to-government consultations with these entities; rather these organizations represent the interest of Indian Tribes when authorized by those Indian Tribes. These organizations by the sheer nature of their business serve and advocate for Indian Tribal issues. 
3. Headquarters Leadership .
   1. Will engage and oversee open, continuous, and meaningful Tribal Consultation with Indian Tribes to the extent practicable and permitted by law when a new or revised national policy affects Indian Tribe(s).
   2. Will ensure Tribal Consultation occurs as early as possible when policy considerations are being presented to ensure that all Indian Tribes have the opportunity to provide input.
   3. Will communicate timely information to Indian Tribes on the decision-making process, outcomes, and consideration of the Tribal input and feedback received.
4. Area Directors. 
   1. Will initiate Tribal Consultation with Indian Tribes located in their respective region and may establish various Area committees or workgroups comprised of delegated Tribal Officials to gather advice from all Indian Tribes served by the respective Area Office.  If all Indian Tribes are not represented by the committee or workgroup, the Area Director will develop a process to ensure that full Tribal Consultation with all Indian Tribes within the Area is coordinated.  
   2. Consult with Area Indian Tribes on an as-needed basis, at a minimum of once a year, on topics affecting Area Indian Tribes.
   3. Coordinate, communicate, and collaborate with the HHS Regional Directors for the specific regions, of which the IHS Area is a part, on issues that are pertinent to Indian Tribes in the respective regions and Area.
5. Federal Service Unit Chief Executive Officers (CEOs). Coordinate, communicate, collaborate, and provide regular updates with and to the Indian Tribe(s) served by the Federal Service Unit.  Any decisions or recommendations made through Tribal Consultation at this level will be formally communicated and coordinated through the respective Area Director.
6. National Workgroups, Advisory Groups, and Committees.
   1. Provide technical expertise, framing of issues to be discussed, and potential work products, outcomes, and/or recommendations that shall be the basis for formal government-to-government Tribal Consultation.
   2. Communicate with Indian Tribes on final appointments of IHS Area representatives to national workgroups, advisory groups, and committees. The majority of appointments shall be comprised of Tribal representatives, in accordance with membership requirements outlined in statutes.
   3. These workgroups, advisory groups, and committees do not take the place of Tribal Consultation but offer an enhancement by gathering individuals together with expertise on a particular policy, practice, issue and/or concern to work collaboratively and offer recommendations for consideration by Indian Tribes and Federal agencies. Procedural items may be addressed through charters, specific to each workgroup. General procedural steps are outlined in Section 6-6.4 of this policy.

6-6.3  PROCEDURES. 

1. Consultative Relationship. Trust between the IHS and Indian Tribes is an indispensable element in establishing a good consultative relationship. The degree and extent of Tribal Consultation will depend on the identified critical event. All levels of IHS management shall ensure that the requirements of this policy are satisfied.
2. Tribal Consultation Mechanisms.
   1. Specific Tribal Consultation mechanisms that will be used to consult with an Indian Tribe(s) include but are not limited to U.S. postal mailings, electronic mailings, meetings, virtual or hybrid teleconferences, and roundtables.
   2. The IHS recognizes that other types of meetings or conferences may occur, such as listening sessions, workshops, and technical assistance sessions, to provide opportunities to engage on complex or technical issues, gather input, or share information. However, these other types of meetings are not Tribal Consultations and should not be used to supplant formal Tribal Consultation.
   3. An Indian Tribe may meet one-to-one with the IHS Director or their designated representative to consult on issues specific to that Indian Tribe in accordance with the IHS Indian Health Manual (IHM), Part 6, Chapter 5, Tribal Delegation Meetings.
3. Tribal Consultation Parties. The DDIGA is responsible for monitoring compliance with the IHS Tribal Consultation Policy. Tribal Consultation occurs:
   1. When the IHS Director/Deputy Director, or their designee, and a Tribal Official (for example, Tribal President, Chair, Governor, Chief, Principal Chief and/or elected/appointed Indian Tribal leader, etc.), or their designee, meet and/or exchange written correspondence to discuss any issue(s) or policy concerning either party.
   2. When an Area Director, or their designee, meets or exchanges written correspondence with a Tribal Official or their designee to discuss any issue(s) or policy(s) concerning either party.
   3. When a Federal Service Unit CEO or their designee meets or exchanges written correspondence with a Tribal Official or their designee to discuss any issue(s) or policy concerning either party.
4. Tribal Consultation Planning Steps.
   1. Identify the critical event. A critical event may be identified by the IHS and/or an Indian Tribe. This step includes identifying the complexity, implications, time constraints, and issue(s) (including policy, funding/budget development, programs, services, functions, and activities).
   2. Identify affected/potentially affected Indian Tribe(s).
   3. Determine the level of Tribal Consultation. The level of Tribal Consultation is dependent upon the critical event, and includes but is not limited to the means and methods of conducting consultation, the organizational level that is most appropriate, and the timeline. This can be done after considering the critical event and the Indian Tribe(s) affected or potentially affected.
5. Level of Tribal Consultation. Upon the determination of the level of Tribal Consultation necessary, proper notice of the critical event and the level of Tribal Consultation to be used shall be communicated to affected/potentially affected Indian Tribes using all appropriate methods with as much advance notice as practicable. Generally, every effort will be made to provide at least 30 days’ notice prior to a scheduled Tribal Consultation. If exceptional circumstances or factors beyond IHS’s control warrant a shorter period of advance notice, the reason why the standard notice or written comment period could not be provided will be explained in communication to Indian Tribes(s). Communication methods include but are not limited to the following:
   1. Correspondence. Written or electronic communications should be issued within 30 calendar days of an identified critical event and provide affected/potentially affected Indian Tribe(s) with clear details of the critical event, the timeframe, and the manner in which to provide comment. The IHS frequently uses a "Dear Tribal Leader Letter" (DTLL) to notify individual Indian Tribes of Tribal Consultation activities. Other forms of correspondence include broadcast email, an FR notice, and other outlets. At a minimum, the notice of Tribal Consultation shall include:
      1. Sufficient information on the topic to be discussed, in an accessible language and format, and the context for the Tribal Consultation topic;
      2. Date, time, and location (including if virtual) of the Tribal Consultation;
      3. If consulting telephonically or virtually, phone numbers and links to join or register in advance;
      4. Explanation of any time constraints known to the IHS at that time, such as statutory deadlines;
      5. Deadlines for any written comments on the topic;
      6. Names and contact information for the IHS staff who can provide more information; and
      7. Appropriate available information related to the subject of the Tribal Consultation including, where consistent with applicable law, a proposed agenda, framing paper, and/or other relevant materials to assist in the Tribal Consultation process.

      Written comments will be accepted, and absent exceptional circumstances, the written comment period should be open for at least 30 days following the Tribal Consultation. Upon the request of an Indian Tribe(s), or where it would serve Tribal interests, the IHS will consider adjusting deadlines for notice of Tribal Consultations and for accepting written comments.

   2. Meetings. When the critical event is determined to have a substantial direct effect, the IHS shall convene a meeting(s), to the extent practicable and permitted by law, with the affected or potentially affected Indian Tribe(s) to discuss all pertinent issues. This meeting(s) may be in a national, regional, and/or Area forum, as appropriate. The IHS shall ensure that leadership and/or their designee(s) or representative(s) with appropriate knowledge and, to the extent practicable, decision-making authority participate in the Tribal Consultation. Protocol will ensure that the highest-ranking official from each respective Indian Tribe is given the opportunity to address the Tribal Consultation first, followed by other elected officials, those designated by their elected official to represent their respective Indian Tribes, and representatives of Tribal and Indian Organizations.
   3. Federal Register Notice. In instances where the IHS issues a FR Notice, a DTLL announcing Tribal Consultation will be issued concurrently with said FR Notice, which is the most formal method used by the IHS for communication and/or consultation. This method can be used for a variety of purposes including but not limited to requests for comments by the affected Indian Tribe(s) regarding critical events.
6. Official Tribal Correspondence . Correspondence submitted by Indian Tribes to the IHS shall be referred to the appropriate IHS program office.
   1. Communications from Indian Tribe(s) come in many forms, including resolutions, legislation, or executive memoranda. The IHS will give equal consideration to all correspondence received that represents a formal declaration of an Indian Tribe’s position for the purpose of Tribal Consultation.

      A response regarding an official Tribal correspondence shall be provided by the IHS within 60 calendar days to the Indian Tribe(s).

7. Schedule for Tribal Consultation . The IHS must establish and adhere to a formal schedule of meetings to consult with the Indian Tribe(s) and their representatives concerning the planning, conduct, and administration of applicable activities. The IHS must involve Tribal Officials in meetings at every practicable opportunity. The IHS is encouraged to work with Indian Tribes to establish additional forums for Tribal Consultation, participation, and information sharing.
8. Policy Development through Tribal Consultation . The need to consult on the development or revision of a policy may be identified from within the IHS or by Indian Tribe(s). Tribal Consultation may be initiated in response to Executive, Judicial, or Legislative Branch directives. Once the need to consult on the development or revision of a policy is identified, the IHS will respond within 60 calendar days to the request from an Indian Tribe(s). The Tribal Consultation process must begin in accordance with critical events and the level of Tribal Consultation described in Section 6-6.3 of this policy upon the receipt of the IHS response.
9. Documentation and Reporting. Upon completion of a Tribal Consultation session, the IHS will document and follow up on the outcomes of the Tribal Consultation in accordance with Sections 6-6.7 and 6-6.8 of this policy. This policy shall be posted on the IHS Web site.
10. HHS and State Facilitation .
    1. HHS Divisions and Regional Offices .
       1. Upon the request of an Indian Tribe(s), the IHS will advocate for and facilitate collaboration between HHS Divisions, Regional Offices, and the Indian Tribe(s) to assist with Tribal Consultation.
       2. The IHS will assist the Indian Tribe(s) and HHS Divisions in addressing any identified issue(s), such as access to HHS programs and services that could be provided directly to an Indian Tribe(s).
       3. The IHS and/or Area Office will work with the HHS Office of Intergovernmental and External Affairs (IEA) to assist Indian Tribes in advocating for improved HHS Division-Tribal relations.
    2. States .
       1. Upon the request of an Indian Tribe(s), the IHS will advocate for and facilitate collaboration between States and the Indian Tribe(s) to address the identified issue(s) affecting IHS programs and services.
       2. The IHS and/or Area Office will work with the HHS/IEA to assist the Indian Tribe(s) in advocating for improved State-Tribal relations.

6-6.4  ESTABLISHMENT OF JOINT TRIBAL/FEDERAL WORKGROUPS AND/OR TASK FORCES. When new or revised national policy affects an Indian Tribe(s), the IHS Director and/or Area Director may establish a workgroup and/or task force to develop recommendations on various technical, legal, or policy issues. In such cases, see Addendum 1, which outlines the process for establishing such aforementioned workgroups and/or task forces.

6-6.5  IHS BUDGET FORMULATION. On an annual basis, the IHS shall consult with, and solicit the participation of, Indian Tribes and Tribal Organizations, regarding the development of the budget and annual performance plan for the IHS. Through this process, Indian Tribes and Tribal Organizations will provide input on program priorities, policies, and budget recommendations for consideration in the formulation of the IHS budget. In addition, statutes and policies exist that require the IHS to confer with Urban Indian Organizations (UIOs) on the IHS budget formulation. The IHS will confer with UIOs regarding the annual IHS budget formulation, pursuant to its statutory authority and in accordance with the IHS IHM Part 5, Chapter 26 – Conferring with Urban Indian Organizations.

1. Timeframe. In order to ensure that Indian Tribes are able to provide meaningful input for the IHS budget request, the IHS shall use the following timeframe to coincide with the HHS schedule:

   1. October through December – Individual IHS Area budget formulation work sessions.
   2. February through March – National Tribal Budget Formulation Work session.
   3. April – Tribal presentation of national priorities and recommendations at the HHS Annual Tribal Budget Consultation.
   4. May through June – The IHS will assist in the development of a meeting among the co-chairs of the National Tribal Budget Formulation Workgroup, representatives from Tribal Organizations, UIOs, and Indian organizations as appropriate, and the OMB, at which Tribal presentation of national priorities and recommendations can be presented to OMB.
2. Area Budget Formulation Teams. In preparation for the IHS Area-wide Tribal Consultation session, Area Budget Formulation Teams will provide ongoing support to the budget formulation activities at the Area level. Each Area Budget Formulation Team shall consist of Tribal Officials and IHS staff. The IHS Headquarters Office of Finance and Accounting provides standard instructions to the Areas for the development of Area budget priorities:
   1. The Area Budget Formulation Team solicits Area-wide input on the health and budget priorities for the Area.
   2. The Area Budget Formulation Team nominates two Tribal Officials to serve as representatives at the National Tribal Budget Formulation Workgroup session on behalf of the Area.
3. Headquarters Budget Formulation Work Team.
   1. Provides staff support to the Director, IHS, for budget formulation.
   2. Develops the IHS budget request in accordance with HHS and OMB guidelines.
   3. Provides information on the budget request and formulation processes.
   4. Adheres to all recommendations provided by the National Tribal Budget Formulation Workgroup.
   5. Reviews the annual President’s Budget with the National Tribal Budget Formulation Workgroup after the budget has been made public.
4. National Tribal Budget Formulation Workgroup Session.  The National Tribal Budget Formulation Workgroup session is conducted yearly to consolidate budget and policy recommendations from the Area Budget Formulation Teams into a unified set of national budget and policy recommendations.
5. National Tribal Budget Formulation Workgroup. The National Tribal Budget Formulation Workgroup consists of two Tribal representatives from each of the 12 IHS Areas as identified by the Area Budget Formulation Teams. The workgroup provides input and guidance to the IHS Headquarters Budget Formulation Work Team throughout the remainder of the budget formulation cycle for that fiscal year. Costs incurred by the Indian Tribe(s) for the purpose of participating in the National Tribal Budget Formulation Workgroup may be the responsibility of the IHS.
6. IHS Budget Formulation Planning and Evaluation Meeting with Indian Tribes and Tribal Organizations.  The IHS is responsible for preparing and executing an annual planning and evaluation meeting describing the Tribal Consultation process used and outcomes related to the formulation of the proposed budget of the IHS.  To effectively evaluate the budget formulation process and the ability of the IHS to incorporate Tribal recommendations, the IHS will assess:
   1. The effectiveness of the methods used to receive feedback from participating Indian Tribes, Tribal Organizations, IHS management, and other invited participants regarding the Tribal Consultation process used to formulate the budget;
   2. The results summary obtained from the evaluation forms provided to participating Indian Tribes, Tribal Organizations, and other invited participants to collect written feedback regarding the Tribal Consultation process used to formulate the budget;
   3. The effectiveness of the Tribal Consultation method implemented, including IHS and Tribal views regarding the level of attendance and the number of responses received from Tribal Officials;
   4. The effectiveness of IHS activities related to promoting Tribal Consultation regarding the process used to formulate the budget;
   5. The effectiveness of collaboration with Indian organizations and other Federal agencies to resolve issues for the mutual benefit of the IHS and Indian Tribes; and
   6. The recommendations received from IHS, Indian Tribes, and Tribal Organizations to improve the Tribal Consultation process and promote meaningful outcomes; and the action plans to improve the Tribal Consultation process used to formulate the budget.

6-6.6 IHS Budget Execution.

1. New Funding. It is IHS policy to consult with Indian Tribes regarding the allocation of new funding (i.e., funding that is not in the existing base funding of an Indian Tribe(s) or congressionally earmarked for a specific Indian Tribe(s) that is provided as a result of the appropriations process). This policy is described in IHS Circular No. 92-5, “Budget Execution Policy (Allocation of Resources).” Barring legislative or administrative direction to the contrary, the appropriate consultative process for this purpose may use any tool or mechanism as agreed to by the IHS Area Director and the Indian Tribe(s) that is not inconsistent with IHS Circular No. 92-5.
2. Budget Information Disclosure. The IHS must initiate a process that provides the Indian Tribe(s) and Tribal Organization(s) with the following IHS budget-related information on an annual basis: appropriations, allocations, expenditures, and funding levels for programs, functions, services, and activities. Tribal requests for additional information shall be reviewed on a case-by-case basis and answered to the extent practicable, unless embargoed and/or prohibited by law.
3. Grants and Initiative-Related Funding. To the extent practicable and permitted by law, the IHS will initiate Tribal Consultation before determining whether to extend, shorten, or otherwise change any funding cycle.

6-6.7 IHS TRIBAL CONSULTATION PERFORMANCE AND COLLABORATION .

1. IHS Annual Report to HHS. As part of the HHS Annual Tribal Affairs Report, and in accordance with the HHS Tribal Consultation Policy, the IHS will report on an annual basis the results and outcomes of Tribal Consultation performance to fulfill the government-to-government relationship with Indian Tribes.

   Additionally, the IHS may report on any Area Tribal Consultation effort or those conducted one-on-one with Tribes to highlight Tribal Consultation successes, challenges, or best practices. The information in the HHS Annual Tribal Affairs Report is a summary of, and should be compiled from, all the information captured during the year. Additionally, any information deemed sensitive or confidential by a Tribe should not be included in the HHS Annual Tribal Affairs Report.

6-6.8   IHS Meeting Records, Evaluation, and Reporting .  The IHS is responsible for appropriately reporting on and evaluating Tribal Consultation activities and outcomes.  The IHS shall timely disclose to the affected Tribe or Tribes the outcome(s) of the Tribal Consultation and the decision(s) made as a result of the Tribal Consultation.  To the extent permitted by applicable law, the IHS shall seek to ensure that information designated as sensitive by a Tribal government is not publicly disclosed.  The IHS will strive to obtain advance informed consent from Indian Tribe(s) for the use of sensitive information provided by the Indian Tribe, and shall inform Tribal Leaders that certain Federal laws, including the Freedom of Information Act, may require disclosure of such information.  The level of reporting should be consistent with the level of Tribal Consultation described in Section 6-6.3, E. of this policy.  The IHS will report on Tribal Consultation activities and communicate the nature of these sessions and outcomes to HHS, Indian Tribes, and Tribal Organizations using the following means:

1. IHS Tribal Consultations Report Submitted to Indian Tribes and Tribal Organizations After Tribal Consultation Occurs. Once the IHS completes Tribal Consultation, all recommended follow-up actions shall be tracked and reported to Indian Tribes and included in HHS’ Annual Tribal Affairs Report. The IHS Headquarters and Area Offices are responsible for preparing and submitting a report to Indian Tribes and Tribal Organizations upon the conclusion of the Tribal Consultation activity.  At a minimum, the report should include:

   1. A description of the issue(s) that was the subject of Tribal Consultation;
   2. A description of the process that was used;
   3. A discussion of the recommendations that resulted from the Tribal Consultation meeting(s);
   4. A list of any follow-up action items and a timeline for addressing these items; and
   5. A description of outcomes from the Tribal Consultation, including whether the IHS incorporated recommendations and input received from Tribal Officials.
2. IHS Reports Regarding Specific Issues Assigned to Workgroups/Task Forces.  The IHS is responsible for preparing written reports at the conclusion of each workgroup/taskforce meeting and providing these reports to participating Indian Tribes in advance of the next scheduled meeting of the workgroup/taskforce.  Recommended actions should be appropriately recorded in these reports.  The reports should include, as appropriate:
   1. A description of the issue(s) in the workgroup/taskforce meeting;
   2. A description of the process including an identification of workgroup members;
   3. An up-to-date summary of the efforts of the workgroup/taskforce including recommendations provided; and
   4. A description of the likely agenda items for subsequent meetings.
   Subsequent to the final meeting of a workgroup/task force, a final report will be prepared that will provide a listing of recommendations made to the IHS. A discussion of Tribal and IHS satisfaction with the particular workgroup/task force will be provided.
3. Tribal Consultation Results.  Documents developed to communicate decisions arrived at through Tribal Consultation will be posted on the IHS Web site. 

6-6.9 CONFLICT RESOLUTION PROCESS. The intent of this policy is to promote respectful partnerships with Indian Tribes that enhance the IHS’s ability to address issues, needs, and problem resolution. The IHS shall consult with Indian Tribes to establish a resolution process under which Indian Tribes bring forward concerns regarding the implementation of this policy. However, Indian Tribes and the IHS may not always agree, and inherent in the government-to-government relationship, Indian Tribes may elevate an issue of importance to a higher decision-making authority.

1. Tribal Waiver. The IHS shall establish, review, and streamline the processes under which an Indian Tribe may apply for waivers of statutory, regulatory, policy, or procedural requirements. The IHS shall, to the extent practicable and permitted by law;
   1. Consider any application by an Indian Tribe for a waiver with a general view toward increasing opportunities for utilizing flexible approaches at the Indian Tribal-level when the proposed waiver is consistent with the applicable Federal policy objectives and is otherwise appropriate; and
   2. Render a decision upon a complete application for a waiver within 120 calendar days of receipt, or as otherwise provided by law or regulation. If the application for waiver is not granted, the IHS shall provide the applicant with timely written notice of the decision and the reasons therefore.

      Waiver requests for statutory or regulatory requirements apply only to statutory or regulatory requirements that are discretionary and subject to waiver by the IHS.

Consistent with EO 13175 and Presidential Memoranda (issued November 5, 2009, January 26, 2021, and November 30, 2022), this policy is not intended to create any right, benefit, or trust responsibility, substantive or procedural, enforceable at law by a party against the U.S., its agencies, or any persons.

6-6.10 TRIBAL SOVEREIGNTY.  This policy does not waive any Tribal governmental rights, including treaty rights, sovereign immunity, or jurisdiction.  Additionally, this policy does not diminish any rights or protections afforded other AI/AN people or entities under Federal law. 

Our Nation, under the law of the U.S. and in accordance with treaties, statutes, EOs, and judicial decisions, has recognized the right of Indian Tribes to self-govern.  Indian Tribes exercise inherent sovereign powers over their members and territory.  The U.S. continues to work with Indian Tribes on a government-to-government basis to address issues concerning Tribal self-governance, Tribal trust resources, and Tribal treaty and other rights.

A constitutional relationship among sovereign governments is inherent in the very structure of the Constitution and is formalized in and protected by Article I, Section 8.  Increasingly, this special relationship has emphasized self-determination and meaningful involvement and consultation for Indian Tribes in Federal decision-making (consultation) where such decisions affect Indian Tribes.  Indian Tribes’ participation early and often in the development of programs, policies, regulations, and initiatives ensures relevant and culturally appropriate approaches to health and human services.

1. Philosophy. Indian Tribes have, through the cessation of more than 400 million acres of land to the U.S. in exchange for promises, among other things, of health care, often reflected in treaties, secured the right to health care from the U.S. based on the moral, legal, and historic obligations of the U.S. to AI/AN people.

6-6.11 IHS EMPLOYEE TRAINING.  The IHS requires all employees who work with Tribal Nations or on policies with Tribal implications to complete annual Tribal Consultation training.  This training shall include, at minimum, a review of EO 13175, the President’s Memorandum on Uniform Standards for Tribal Consultation, and this policy.  Tribal Consultation training modules established by the Secretary of Interior and Director of the Office of Personnel Management may also be used to satisfy the annual training requirement.

6-6.12  DEFINITIONS.

1. Critical Events. Planned or unplanned event(s) that has or may have Tribal implication(s), e.g., statutory requirements, regulations, issues, policies, or budgets which may come from any level within the IHS.
2. Deliberative Process Privilege. Is a privilege exempting the government from the disclosure of government materials containing opinions, recommendations, and other communications that are part of the decision-making process within the agency.
3. Executive Order and Presidential Memoranda. An order or memoranda issued by the government’s executive branch on the basis of authority specifically granted to the executive branch (as by the U.S. Constitution or an Act of Congress).
4. Indian Organization. Any organization whose board is comprised of Federally recognized Tribes and/or elected/appointed Tribal leaders, and the organization’s purpose is to advocate for its members. The Federal Government does not participate in government-to-government consultation with these entities; rather these organizations advocate the interests of Indian Tribes when authorized by those Tribes.
    
5. Indian Tribe. Any Indian Tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) [43 U.S.C. 1601 et seq.], which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians. 25 U.S.C. § 5304(e); 25 U.S.C. § 1603(14).
6. Joint Tribal/Federal Workgroups and/or Task Forces. A group composed of individuals who are elected Tribal Officials, appointed by Federally recognized Indian Tribes and/or Federal agencies, to represent their interests while working on a particular policy, practice, issue and/or concern.
7. Policies with Tribal Implications. Refers to regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
8. To the Extent Practicable and Permitted by Law. Refers to situations where the opportunity for Tribal Consultation is limited because of constraints outside of the authority and resources of the Federal Government.
9. Treaty. A legally binding and written agreement that affirms the government-to-government relationship between two or more nations and is the supreme law of the land in Article VI of the U.S. Constitution.
10. Tribal Consultation. Tribal Consultation is a formal and meaningful government-to-government process involving communications, which emphasizes trust, respect, and shared responsibility. It is an open and free exchange of information, ideas, and positions among parties, which leads to mutual understanding and comprehension. Tribal Consultation is integral to a deliberative and timely process, which results in effective collaboration and informed decision-making with the ultimate goal of reaching consensus on issues and policies affecting Indian Tribes.
11. Tribal Officials. Elected or duly appointed officials of Indian Tribal governments or authorized intertribal organizations.
12. Tribal Organization. The recognized governing body of any Indian Tribe; any legally established organization of Indians which is controlled, sanctioned, or chartered by such governing body or which is democratically elected by the adult members of the Indian community to be served by such organization and which includes the maximum participation of Indians in all phases of its activities: Provided, That in any case where a contract is let or grant made to an organization to perform services benefiting more than one Indian Tribe, the approval of each such Indian Tribe shall be a prerequisite to the letting or making of such contract or grant. See 25 U.S.C. 5304(l).
13. Tribal Resolution. A formal expression or will of an official Tribal governing body.
14. Tribal Self-Governance. The governmental actions of Tribes exercising self-government and self-determination.
15. Tribal Sovereignty. The ultimate source of political power from which all specific political powers are derived.
16. Urban Indian Organization. The term “Urban Indian organization” means a nonprofit corporate body situated in an urban center, governed by an Urban Indian-controlled board of directors, and providing for the maximum participation of all interested Indian groups and individuals, which body is capable of legally cooperating with other public and private entities for the purpose of performing the activities described in [25 U.S.C. § 1653(a)]. 25 U.S.C. § 1603(29).

6-6.13  SUMMARY.  This policy considers a wide range of needs and unique characteristics in crafting these guidelines; therefore, it is important for the IHS Tribal Consultation Policy to remain dynamic and be responsive to changing circumstances that affect Indian Tribes.  The IHS will seek to integrate its efforts with those of other Federal Departments and agencies.  Such intra-governmental coordination will benefit the Federal Departments and agencies as well as Tribes and Tribal Organizations.

6-6.14  ACRONYMS.

AI/AN:  American Indian and Alaska Native

CEO:  Chief Executive Officer

FACA:  Federal Advisory Committee Act

FR:  Federal Register

HHS:  U.S. Department of Health and Human Services

IEA:  Office of Intergovernmental and External Affairs

IHS:  Indian Health Service

OMB:  Office of Management and Budget

P.L.:  Public Law

U.S.C.:  United States Code

6.6.15 ADDENDUM 1.

Joint Tribal/Federal Workgroups and/or Task Forces. Although the special "Tribal-Federal" relationship is based in part on the government-to-government relationship, it is frequently necessary for the IHS, with Tribal concurrence, to establish joint Tribal/Federal workgroups and/or task forces. These workgroups/taskforces will be charged to address issues and complete work needed to develop and/or modify any policies and practices. These Joint Tribal/Federal workgroups and/or task forces do not take the place of Tribal Consultation, but offer an enhancement by gathering individuals with extensive knowledge of a particular policy, practice, issue and/or concern to work collaboratively and offer recommendations for consideration by Federally recognized Indian Tribes and Federal agencies. The subsequent work products and/or outcomes developed by these workgroups and/or task forces will be handled in accordance with this policy.

1. Membership Notices. The IHS shall seek nominations from Indian Tribes to participate in Workgroups/Taskforces. The IHS Director or their designee shall select Workgroup primary and alternate members that represent various regions and/or views of Indian Country. Membership of these Workgroups shall be in compliance with the Federal Advisory Committee Act (FACA) unless the Workgroup is exempt.
2. Meeting Notices. The purpose, preliminary charge, time frame, and other specific tasks shall be clearly identified in the notice. All meetings will be open and widely publicized, at a minimum through the IHS Calendar of Events.
3. Membership Composition Workgroup/Task Forces. The Indian Tribe(s) and the IHS should be equally represented in workgroups/task forces, if not, then Tribal representatives should be in the majority. Tribal representatives should be selected based on volunteer responses or nominations received as a result of the notice, and if possible, should represent the affected parties. When the IHS uses workgroups to assist the Tribal Consultation process, FACA requirements apply, unless exempt in accordance with section 204(b) of the Unfunded Mandates Reform Act of 1995 (UMRA). 2 U.S.C. §1534(b). The IHS and/or Tribal staff may serve in a technical advisory capacity.
4. Participation.
   1. Attendance at Meetings. Workgroup members must make a good faith effort to attend all meetings. Tribal staff may accompany workgroup members and serve to advise them in private; however, FACA requirements will be adhered to at meetings unless exempt. Consistent lack of attendance can be cause for removal.
   2. Workgroup Protocols. The workgroup may establish protocols to govern the meetings. Such protocols will include but are not limited to the following:
      1. selection of workgroup co-chairs (Tribal/Federal), if applicable;
      2. role of workgroup members, and attendees, including technical/legal advisors;
      3. process for decision-making (consensus-based or otherwise); and
      4. process for determining drafting and availability of all final workgroup products and documents.
   3. Workgroup Charge.  Prior to the workgroup formulation, the IHS may develop an initial workgroup charge in enough detail to define the policy concept and workgroup purpose.  Once established, the workgroup may develop recommendations for the final workgroup charge for the approval of the Director, IHS.
   4. Workgroup Final Products.  Once a final draft of the work product has been created by the workgroup, the following process will be used to facilitate Tribal Consultation on the draft work product.  Early consultation with the IHS Division of Regulatory and Policy Coordination is recommended to discuss options for the policy format and placement in the IHS IHM.
      1. Upon completion, the draft policy documents will be distributed informally to the Indian Tribe(s) for Tribal Consultation.
      2. Comments received from the Indian Tribe(s) will be returned to the workgroup, which will meet in a timely manner to discuss the comments and determine the next course of action.
      3. Comments from IHS staff and Indian Tribes will be compiled and provided to the relevant IHS office for review and recommended action, which may include further discussion with the workgroup.
      4. If the proposed draft policy is complete as written, the workgroup will forward the draft document to the Director, IHS, as final recommendation(s) for consideration and endorsement.
      5. The workgroup will also recognize any contrary comment(s) in its final report and explain the reasoning for not accepting the comment(s).
      6. If it is determined that the policy should be rewritten, the workgroup will rewrite and begin consultation again at the initial step above.
      7. If the proposed draft policy is generally acceptable to the Director, IHS, final processing of the policy by the workgroup will be accomplished.
      8. An internal IHS review and comment period will be initiated upon the completion of the policy review conducted in accordance with the IHS IHM Part 1, Chapter 1 – Indian Health Service Manual System.  The policy will be submitted to the Director, IHS, for signature upon completion of the internal review process.
   5. Recommendations and Policy Implementation.  All final recommendations by the workgroup shall be considered by the Director, IHS.  Once the consultation process is completed and a policy decision is finalized, the final policy shall be broadly distributed to all Indian Tribes and Tribal Organizations.