Tribal Leaders Discuss Who Should be Included in the Definition of “Indian Tribe”

Between January 9th and January 18th, the Indian Health Service (IHS) hosted four virtual Tribal consultation sessions to solicit Tribal input on how to define “Indian Tribe” in the updated IHS Consultation Policy (IHS CP) (read the current draft IHS CP here). The Dear Tribal Leader Letter, dated November 27, 2023, posed the following question:

“What definition of Indian Tribe should be included in the updated Consultation Policy: the List Act Definition (25 U.S.C. § 5130); or the ISDEAA Definition (25 U.S.C. § 5304(e))?”

Why the Definition Matters

The List Act defines “Indian Tribe” as “any Indian or Alaska Native Tribe, band, pueblo, village or community that the Secretary of the Interior acknowledges to exist as an Indian Tribe.” Notably, Executive Order 13175, which sets general consultation guidelines for federal agencies, uses the List Act definition to define which Indian Tribes have a government-to-government relationship that entitles that Tribe to consultation. Further, HHS and all other federal Tribal consultation polices, except for IHS, utilize the List Act to define “Indian Tribes.”

ISDEAA defines “Indian Tribe” as “any Indian Tribe, band, nation or other organized group or community, including any Alaska Native village or regional village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (ANCS) (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.” Notably, the ISDEAA definition explicitly includes other organized groups, such as intertribal consortia, and ANCs. The ISDEAA definition is utilized in the current version of the IHS Consultation Policy, which was last revised in 2006.

Discussion Between Tribal Leaders and IHS Representatives

The federal co-chair of the IHS Director’s Advisory Workgroup on Tribal Consultation (Workgroup) offered context for the discussion and explained that IHS’s intent with the revision to the IHS CP is to have it closely mirror the new consultation policy that HHS (HHS CP) adopted in September of 2023. Ms. Ecoffey noted the Workgroup recognized that IHS would not be able to copy the HHS CP exactly because there are some functions of IHS that are unique. For example, IHS works with intertribal consortia and ANCs to ensure health services are delivered to rural Tribal communities in the state of Alaska, pursuant to ISDEAA. HHS does not carry out the same function because HHS delegated its Congressional directive to do so to IHS.

Tribal leaders in support of the List Act’s definition highlighted that it comes down to the government-to-government relationship that Tribes have with the federal government, adding that other Tribal groups, such as intertribal consortia, could seek an alternative mechanism to have their voices considered, similar to how Urban Indians confer with IHS. Other proponents of the List Act definition expressed concern that once Tribes delegate their consultation authority to another organization, those Tribes will lose control over the government-to-government relationship altogether. Some proponents of the List Act’s definition pointed out that the current draft IHS CP creates a means for ANCs and consortia to consult with the federal government. In the draft IHS CP, ANCs will consult with the federal government on a government-to-corporation basis “when [IHS] [takes] action that has a substantial direct effect on ANCs.” Consortia, on the other hand, may participate in consultation only when authorized by its member Tribes.

Tribal leaders in support of ISDEAA’s definition explained that intertribal consortia play an imperative role in the Indian health system, which necessitates the need for consultation between the consortia and IHS. For example, smaller Tribes in rural locations come together to pool resources to deliver health care to their communities through intertribal consortia. If consortia are unable to consult with IHS on a given issue, IHS will not be able to adequately address the issue as it pertains to areas that utilize consortia. Other Tribal leaders expressed concern that IHS would not be following its Congressional directive, under ISDEAA, to consult with ANCs on the same basis as all federally recognized Tribes if IHS chooses to utilize the List Act’s definition (see 118 Stat. 452 as amended by 118 Stat. 3257). Some Tribal leaders explained that many Tribes, pursuant to principles of self-determination, have chosen to receive care via the consortia model, or through ANCs in Alaska, and that the choice to do so should be respected. Others expressed concern that IHS, in an earlier draft version of the IHS CP, had retained consortia’s ability to consult with IHS but that IHS unilaterally cut the language from the most recent iteration of the draft IHS CP.

Other Tribal leaders, even some who initially supported using the List Act’s definition, offered support for a hybrid definition that would preserve the inherent government-to-government relationship of federally recognized Tribes that also recognizes the need for IHS to consult with other Tribal entities that have a right to consultation pursuant to ISDEAA – this would include ANCs and intertribal consortia. Proponents of a hybrid solution cited that such a definition would resolve any issue of having to pick between the List Act and the ISDEAA definitions while recognizing the important role of ANCs and consortia but also respecting the government-to-government relationship that only Tribes possess.

IHS CP Moving Forward

IHS stated that its goal is to have the updated policy completed by the end of 2024. Friday, February 23rd, 2024, is the deadline for written comment. Submissions may be sent via e-mail to: [email protected] – Subject line: DEFINITION OF INDIAN TRIBE. *

* A previous version of the Dear Tribal Leader Letter had incorrectly stated that the deadline for written comment was Friday, February 20th, 2024. The correct deadline to submit written comment is Friday, February 23rd, 2024. IHS has updated the DTLL to reflect this correction.