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Tribal Consultation

The Office of Intergovernmental and External Affairs (IEA) serves as the focal point in the Office of the Secretary for the Department's consultation with Tribal governments on policy, regulatory and legislative issues that have a significant direct impact on Tribal governments and Tribal organizations. The complexity of the Federal-Tribal intergovernmental relationships results from treaties, statutes, executive orders and court decisions. IEA responsibilities for tribal governments are carried out in the same manner HHS facilitates and coordinates all departmental activities with state and local governments. 

BACKGROUND

In response to consultation with Tribal leaders requesting a central point of contact in the Department and to elevate Tribal issues within HHS, the Department established a permanent position of Principal Advisor for Tribal Affairs. The position was placed within the Office of Intergovernmental and External Affairs to provide Tribal governments access on the same basis as state and local governments.

HHS budget formulation and consultation activities have involved extensive interaction with Tribes and Tribal organizations over the past several years. Executive Order 13175, which is very similar to the "Federalism Executive Order” for states and local governments, relates to Native American Tribal governments. IEA is the principal office responsible for carrying out HHS intergovernmental consultation responsibilities for state, local and Tribal governments. A Department Tribal Consultation Policy was developed jointly with Tribal participation in 2004 and then was signed in January of 2005. It was then evaluated and revised in 2008. In December 2010 HHS Secretary Kathleen Sebelius signed and new and improved Tribal Consultation Policy that was in direct response to President Obama’s November 2009 Executive Memorandum.

CONSULTATION POLICIES

Since the release of Executive Order 13175 in 2000, HHS has revised its Department Consultation Policy twice, to ensure the parameters of the EO are being met and the needs of our Tribal partners are being met.

The policy itself has five key components:

  • Each HHS Operating and Staff Division has an accountable consultation process to ensure meaningful and timely input by Tribal officials in the development of policies that have Tribal implications. Several HHS Divisions currently have their own consultation policy, based upon the Departmental document. All other Divisions follow the Department-wide policy.
  • No Division shall promulgate any regulation that has Tribal implications and imposes costs on Indian Tribes, or that is not required by statute, unless the Federal Government is paying the costs or formal consultation has taken place with Tribes.
  • No Division shall promulgate any regulation that has Tribal implications and that preempts Tribal law unless the Division consulted with Tribes, included a Tribal summary impact statement in the Federal Register and provides the Secretary with all written communications from Tribes on the issue.
  • Each Division should explore and use consensual mechanisms for developing regulations, included negotiated rulemaking.
  • If the Department wants to include organizations which do not represent a specific federally-recognized Tribal government on advisory committees or workgroups, then Federal Advisory Committee Act (FACA) requirements must be followed.

 The 2010 Revisions to the HHS Consultation Policy had the following implications:

  • This revised policy further strengthens an already accountable consultation process to ensure meaningful and timely input by Tribal officials in the development of policies that have Tribal implications.  One of the changes found throughout the policy is that tribal input will be sought “throughout all stages” of the development of policies, regulations, and budgets.  This is to ensure that Tribal concerns are heard and that responses are given in a timely manner whenever practicable.  
  • Another substantive change is the new requirements regarding HHS’ duties in reviewing authorizing statutes and regulations to determine if Federal program funding must be distributed to States rather than directly to Tribes in all instances where this practice is operating.
  • In addition, references to non-Federally recognized groups of Indigenous people have been removed to clarify that this Tribal Consultation Policy is to outline how the Department will engage and conduct consultation with federally recognized Tribal Governments in accordance with the Executive Direction.  Each Division will need to examine their authorities regarding the other Indigenous groups to determine the best manner in which to incorporate their concerns in Division policies.
  • The majority of revisions or additions to the policy were to clarify the roles and responsibilities of the Divisions in carrying out the policy. 

More information:

CONSULTATION ACTIVITIES

Regional Consultation - The HHS Regional Tribal Consultation Sessions are designed to solicit Indian Tribe’s priorities and needs on health and human services and programs.  The sessions provide an opportunity for Indian Tribes to articulate their comments and concerns on budgets, regulations, legislation and HHS health and human services policy matters. 

2013 Tribal Consultation Sessions
To view the 2011 Regional Tribal Consultation summaries, click here:
2011 HHS Regional Tribal Consultations: Executive Summary (PDF – 123 KB)

 

Budget Consultation – The annual consultation session with tribes in regards to the HHS budget has been conducted over the last 10 years. The policy states that an annual, Department-wide Tribal budget formulation and consultation session, that includes each Operating and Staff Division that has involvement in Tribal activities, is conducted to give Indian Tribes and Tribal Organizations the opportunity to present their health and human services budget priorities and recommendations to the Department. In order for Divisions to receive and consider Tribal recommendations in the development of the budget request, this 2-day session is convened between February 1 and March 30 of each year.

Click here to view: 

 

Consultation Report – The HHS Consultation Policy calls for an annual HHS Consultation Report.  IGA is responsible for production of this report and has been compiling the report for the last 10 years. Once compiled the report is distributed to every tribe in the country, as well as national and regional tribal organizations.

View the Annual Tribal Consultation Report:

IMPROVING HHS CONSULTATION WITH TRIBAL NATIONS

Secretary Sebelius Outlines Next Steps for Improving HHS Consultation with Tribal Nations
In a letter released on March 1, 2010, HHS Secretary Kathleen Sebelius announced the Department's compliance with President Barack Obama's memorandum on Tribal consultation and shared a blueprint for continuing to improve consultation efforts. Annual Regional Consultation Sessions across the country will be used to facilitate a dialogue with Tribal leaders and communities on how to foster communication and collaboration, to continue to build healthier Tribal Nations.