ISDEAA 638 Contract Eligibility

Who Can Contract Under ISDEAA Title I

ISDEAA Title I contracting authority is available to two categories of entities as defined in 25 U.S.C. § 5304:

• Indian tribes — 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 (43 U.S.C. § 1601 et seq.), which is recognized as eligible for special programs and services provided by the United States to Indians because of their status as Indians. As of 2024, there are 574 federally recognized tribes listed in the Federal Register notice published by the Bureau of Indian Affairs.
• Tribal organizations — 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 and which includes the maximum participation of Indians in all phases of its activities (25 U.S.C. § 5304(l)). This includes inter-tribal consortia, regional tribal health boards, and tribally-chartered health corporations.

Critically, state recognition alone is not sufficient. The contracting tribe or organization must be federally recognized. State-recognized tribes that do not also appear on the BIA's list of federally recognized tribes cannot contract under ISDEAA, though they may be eligible for certain competitive federal grants through separate authorities.

Inter-Tribal Consortia

Inter-tribal consortia occupy a significant role in 638 contracting, particularly in regions where individual tribes may lack the administrative infrastructure to operate contracted programs independently. ISDEAA explicitly authorizes tribal organizations — including consortia — to contract on behalf of one or more tribes, provided each member tribe authorizes the consortium through a formal tribal resolution.

Examples of inter-tribal consortia holding 638 contracts include:

• Regional tribal health organizations operating clinical programs across multiple reservations (e.g., tribal health boards in IHS Portland, Tucson, or Bemidji Areas)
• Alaska Native tribal health consortia operating under 638 contracts or Title V compacts for entire IHS service units
• Urban Indian health programs authorized by member tribes to contract for specific health services in urban areas

When a consortium contracts on behalf of multiple tribes, the AFA should clearly specify the services to be provided to each tribal community, the allocation methodology for funding, and the governance structure for decision-making. Each member tribe's resolution should explicitly identify the specific PFSAs the consortium is authorized to assume.

What Can Be Contracted

Under ISDEAA Title I, tribes and tribal organizations can contract any “programs, functions, services, and activities” (PFSAs) that IHS provides to Indian beneficiaries. The scope of contractable PFSAs is broad:

• Clinical health services — Primary care, dental, behavioral health, substance abuse treatment, pharmacy, optometry, and specialty care programs operated by IHS service units
• Community health programs — Community Health Representative (CHR) programs, public health nursing, health education, diabetes prevention, environmental health, and injury prevention
• Administrative and support functions — Health information management, facility maintenance, procurement, human resources, and IT systems related to IHS-funded programs
• Facility operation — Tribes can contract to operate IHS facilities, including hospitals, health centers, and health stations. The facility itself may remain federal property while the tribe operates programs within it.

The tribe can propose to contract a single PFSA (such as the CHR program at one service unit) or an entire IHS service unit's operations. The proposal identifies the specific PFSAs being assumed, and IHS must calculate the Secretarial amount — the funds IHS would have spent to operate those PFSAs directly — for inclusion in the contract.

The Five Declination Criteria

One of the most powerful provisions of ISDEAA is the limitation on IHS's ability to decline a contract proposal. Under 25 U.S.C. § 5321(a)(2), IHS may decline a proposal only if it makes a specific finding that one of five statutory criteria applies. The burden of proof rests with IHS, not the tribe.

Responding to a Declination

If IHS declines a proposal, the declination letter must specify which of the five criteria applies and provide a detailed written explanation of the factual basis for the finding. The tribe then has several options:

• Informal conference — Request an informal meeting with IHS within 30 days of the declination to present additional information or negotiate modifications that address IHS's concerns.
• Formal hearing — Request a hearing before the Interior Board of Indian Appeals (IBIA) within 30 days. IBIA reviews the declination de novo and IHS bears the burden of proving the declination was justified.
• Federal court — The tribe can bypass the IBIA process entirely and file suit in federal district court under 25 U.S.C. § 5331(a). Courts have broadly interpreted ISDEAA in favor of tribal contracting authority.

The legislative history and case law surrounding ISDEAA declinations strongly favor tribal contracting. The 1994 amendments added “technical assistance” requirements, meaning IHS must actively help a tribe address any deficiencies before declining a proposal. Courts have consistently held that ISDEAA declination criteria must be construed narrowly — the statute's purpose is to facilitate, not obstruct, tribal self-determination. See our common mistakes guide for how to avoid declination response failures.

Tribal Resolution Requirements

Every 638 contract proposal must be accompanied by a tribal resolution from the governing body of each Indian tribe to be served. The resolution serves as the formal authorization for the tribe or tribal organization to enter into the contract with IHS. This is not a bureaucratic formality — it is the exercise of tribal sovereignty, the governing body's affirmative decision to assume responsibility for federal programs.

What the Resolution Must Include

While ISDEAA does not prescribe a specific format, an effective tribal resolution for a 638 contract proposal should include:

• Identification of the tribal governing body adopting the resolution and a statement of its authority to act
• Specific identification of the PFSAs to be contracted
• Authorization for the designated tribal official (typically the tribal chairman, president, or health director) to negotiate and execute the contract on behalf of the tribe
• If the contracting entity is a tribal organization (not the tribe itself), authorization for that specific organization to act on the tribe's behalf
• Date of adoption, quorum certification, and signatures of authorized officials

For inter-tribal consortia, a separate resolution is required from each member tribe. IHS will not process a consortium's contract proposal without resolutions from all participating tribes. Expired or ambiguously worded resolutions are a common cause of processing delays — see the common mistakes guide for best practices on resolution drafting and renewal.

Mature Contractor Status

“Mature contractor” is not a statutory term — you will not find it in the text of ISDEAA. It is an administrative designation used by IHS to describe tribal contractors that have demonstrated a sustained track record of successful program operation, financial management, and compliance. The practical significance of mature contractor status lies in the flexibility it provides:

• Reduced reporting. Mature contractors may negotiate reduced reporting schedules in their AFAs. Where a new contractor might submit quarterly program reports, a mature contractor may negotiate annual reporting only.
• Less oversight. IHS Area Office monitoring may shift from active oversight to a more collaborative, consultative relationship. Site visits and desk reviews may become less frequent.
• Operational flexibility. Mature contractors often have greater latitude in how they deliver contracted services, including the ability to redesign programs to better fit community needs without seeking IHS approval for every change.
• Pathway to Title V. Mature contractor status is effectively a prerequisite for transitioning to a Title V self-governance compact, which requires demonstrating successful operation for at least three fiscal years.

How Mature Contractor Status Is Assessed

IHS Area Offices evaluate mature contractor status based on several factors, though the criteria are not standardized across all 12 IHS Areas. Common factors include:

• Clean Single Audit findings for at least three consecutive years
• Timely submission of all required reports (program, financial, and GPRA)
• No outstanding corrective action plans or unresolved audit findings related to the 638 contract
• Demonstrated program quality — clinical outcomes, patient satisfaction, and community engagement
• Stable governance — consistent tribal leadership engagement, functioning health boards or advisory committees, and clear organizational structure

If your organization is working toward mature contractor designation, our reporting requirements guide covers the reporting obligations that are central to the assessment, and the Single Audit guide addresses the audit component.

Relationship to Title V Self-Governance Compacts

Title V of ISDEAA (25 U.S.C. §§ 5381–5423), enacted as permanent law in 2000, provides an alternative pathway for tribes that have demonstrated successful self-determination contracting under Title I. Title V compacts offer significantly greater flexibility:

• Block funding. Compact tribes receive a single funding amount that can be reallocated across programs without IHS approval, rather than line-item budgets tied to specific PFSAs.
• Program redesign. Compact tribes can fundamentally redesign how health services are delivered to their communities, including combining, consolidating, or eliminating programs that do not serve community needs.
• Reduced reporting. Compact tribes typically have fewer IHS-imposed reporting requirements, though GPRA and financial accountability obligations remain.

To be eligible for Title V, a tribe must have completed at least three fiscal years of successful Title I contracting without significant audit findings or programmatic deficiencies. As of 2024, approximately 90 tribes and tribal organizations operate under Title V self-governance compacts with IHS, managing a combined portfolio that represents roughly 60% of the IHS budget.

For tribes currently operating under Title I and considering the transition to Title V, the process involves applying to IHS's Office of Tribal Self-Governance, completing a self-governance planning phase (which can be funded through a planning cooperative agreement), and negotiating a compact and AFA with IHS. The transition does not happen overnight — most tribes take 1–2 years from application to compact execution.

Eligibility for Tribes With Existing Competitive Grants

A common question from tribal health administrators: does holding competitive federal grants (HRSA 330, SAMHSA, CDC cooperative agreements) affect 638 contract eligibility? The answer is no — these are separate legal authorities with separate eligibility pathways. A tribal health program can simultaneously hold:

• One or more 638 contracts for IHS programs
• A HRSA Section 330 grant for health center operations (many tribal health centers are both 638 contractors and FQHC look-alikes or grantees)
• SAMHSA grants for behavioral health or substance abuse programs
• State contracts for Medicaid service delivery or public health programs

The challenge is not eligibility but compliance — each funding stream has its own rules, and managing them simultaneously requires careful organizational design. The Tribal Healthcare Funding Guide addresses this multi-stream management challenge, and the compliance page in this guide explains how 638 compliance differs from 2 CFR 200 grant compliance.

IHS Area Offices and Regional Considerations

IHS operates through 12 Area Offices, each serving a defined geographic region. Your IHS Area Office is your primary point of contact for 638 contracting:

Each Area Office has an Office of Tribal Self-Determination that handles 638 contract proposals, negotiations, and ongoing administration. Area-specific practices can vary significantly — negotiation timelines, reporting requirements, and the approach to mature contractor designation all differ by Area. Before submitting a proposal, connect with your Area's Self-Determination office to understand their specific processes and preferences.

Ready to develop your proposal? The Application & Proposal Guide walks through the required elements, AFA structure, and negotiation process step by step.