(a) This subpart describes the process for engaging in consultations related to self-governance with Tribes/Consortia.

(b) The Tribal Consultation Process for self-governance matters described in this subpart is intended to apply to consultations commencing after the effective date of this rule and supersedes previous self-governance consultation processes used by the Secretary.

On matters related to self-governance, the Secretary shall consult:

(a) To determine which programs are eligible for negotiation to be included in a funding agreement at the request of a participating Tribe/Consortium;

(b) To establish programmatic targets to encourage the Department's bureaus to ensure that an appropriate portion of non-BIA programs are available to be included in funding agreements;

(c) On any Secretarial Action with Tribal Implications, provided that the Secretary incorporate input and requests from Tribes and Consortia on topics for consultation.

To the extent practical and not prohibited by law, consultations with self-governance Tribes/Consortia should satisfy the following principles:

(a) Consultation recognizes Tribal sovereignty and the Nation-to-Nation relationship between the United States and Tribes and Consortia and acknowledges that the United States holds treaty and trust responsibilities to Tribes and Consortia.

(b) Consultation is a two-way Nation-to-Nation exchange of information and dialogue between official representatives of the United States and Tribes and Consortia.

(c) Consultation session methods may include, but are not limited to, in-person meetings, video conferences, teleconferences, and correspondence to discuss a specific issue, and must identify the session as consultation in advance of the scheduled meeting.

(d) Consultation should include both the elected or appointed official of the Tribe, acting in the official capacity as the leader of the Tribe or Consortia, or designee of the elected or appointed representative, and the Departmental official with authority to decide on the proposed Departmental Action with Tribal Implications, or designee.

(e) The Secretary shall make good faith efforts to invite Tribes and Consortia to consult early in the planning process and throughout the decision-making process and engage in robust, interactive, pre-decisional, informative, and transparent consultation when planning actions with Tribal implications.

(f) The Secretary should give meaningful consideration to information obtained during consultation with Tribes and Consortia.

(g) The Secretary should strive for consensus with Tribes and Consortia through consultation or a mutually desired outcome. It is the policy of the Department to seek consensus with Tribes and Consortia.

(h) Consultation will ensure that applicable information is readily available to Tribes and Consortia.

(i) Consultation will ensure that officials from Tribes and Consortia and Federal officials have adequate time to communicate.

(j) Consultation will ensure that Tribes and Consortia are advised as to how their input influenced the Department's decision-making.

(a) The Secretary shall issue a notice of consultation which includes:

(1) Sufficient information on the topic to be discussed, in an accessible language and format, and context for the consultation topic, to facilitate meaningful consultation;

(2) Identification of a timeline of the process and possible outcomes for Departmental action under consideration;

(3) The date, time, and location of the consultation;

(4) If consulting virtually or by telephone, links to join or register in advance;

(5) An explanation of any time constraints known to the Department at that time;

(6) Deadlines for Tribes and Consortia to submit written comments on the topic; and

(7) The names and contact information for Departmental staff who can provide additional information on the consultation.

(b) The Secretary shall provide notice of at least 30 days to Tribes and Consortia of any planned consultation sessions.

(c) The Secretary shall distribute such notice under this section to each Tribe/Consortium through:

(1) Email to a point of contact for each Tribe and Consortium; and

(2) Posting the notice on the website for the Department and/or OSG.

(d) The Secretary should, to the greatest extent practical, provide appropriate, available information on the subject of consultation including, where consistent with applicable law, a proposed agenda, framing paper, and other relevant documents to assist in the consultation process.

Yes. The Secretary shall allow for a written comment period following the consultation of at least 30 days, unless otherwise directed by law.

(a) The Secretary shall maintain a record of a consultation with Tribes or Consortia that includes:

(1) A summary of Tribal or Consortia input received;

(2) A general explanation of how Tribes or Consortia input influenced or was incorporated into the agency action; and

(3) If relevant, the general reasoning for why suggestions from Tribes or Consortia were not incorporated into the agency action or why consensus could not be attained.

(b) The Secretary shall timely disclose the outcome of a consultation and decisions made as a result of the consultation.

(c) The record of consultation does not waive any privilege or other exception to disclosure pursuant to the Freedom of Information Act or its implementing regulations.

Prior to a consultation, the Secretary shall inform Tribes and Consortia of those Federal laws, including the Freedom of Information Act, that may require disclosure of information provided by the self-governance Tribe/Consortium during a consultation. To the extent permitted by applicable law, the Secretary shall ensure that such information designated as confidential or sensitive by a Tribe or Consortium is not publicly disclosed. The Department should obtain advance informed consent from Tribes/Consortia for the use of confidential or sensitive information provided, and should inform Tribal representatives that certain Federal laws, including the Freedom of Information Act, may require disclosure of such information.