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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

HHS Tribal Consultation on Presidential Memorandum – On January 26th, President Biden issued a Presidential Memorandum on Tribal Consultation and Strengthening the Nation-to-Nation Relationships that requires the Department of Health and Human Services (HHS) to submit a detailed plan for implementing Executive Order 13175, which charges all executive departments and agencies to engage in regular, meaningful, and robust consultation with Tribal officials in the development of federal policies that have Tribal implications.

HHS takes its responsibility to consult with Tribal Governments seriously and first established the Department’s Tribal Consultation Policy in 1997, with multiple revisions since its creation to facilitate better communication. The current HHS Tribal Consultation Policy is available at: https://www.hhs.gov/about/agencies/iea/tribal-affairs/consultation. HHS is also committed to working in partnership with Tribes and the Secretary’s Tribal Advisory Committee (STAC) that advises HHS on Department-wide processes and ensures Tribal guidance is incorporated into HHS priorities, policies, and the budget.

HHS is seeking your recommendations and feedback on how we can improve the Department’s policies, and practices to better engage with Indian Country through meaningful consultation. Consultation times, dates and links are below:

  • Monday, March 22, 2021 (10:00 a.m. – 1:00 p.m. ET): Regions 1, 2, 3, & 4 https://www.zoomgov.com/meeting/register/vJItf-igqzwtGGG9MjxYQxL-Hv2SMzW4o8w
  • Monday, March 22, 2021 (2:00 p.m. – 5:00 p.m. ET): Region 5 https://www.zoomgov.com/meeting/register/vJItfuuhpz8qGxAsZdDUyRME08N8asCjN4Q
  • Tuesday, March 23, 2021 (2:00 p.m. – 5:00 p.m. ET): Regions 7 & 8 https://www.zoomgov.com/meeting/register/vJIsc-uqqjgtHbAj2pqB_qylpKOAEGvIVfc
  • Wednesday, March 24, 2021 (10:00 a.m. – 1:00 p.m. ET): Regions 6 https://www.zoomgov.com/meeting/register/vJIsfuCtqj0qGx-oQl9OXk-ZokbHPUDtqOk
  • Wednesday, March 24, 2021 (2:00 p.m. – 5:00 p.m. ET): Region 9 https://www.zoomgov.com/meeting/register/vJIsf-mpqTkjHZLcN-C1gdmtdHpja8PlTm8
  • Thursday, March 25, 2021 (2:00 p.m. – 5:00 p.m. ET): Region 10 https://www.zoomgov.com/meeting/register/vJIscOuqqTovG_movjkRC7thDVJPGlk0PaA

Specific questions on which we welcome your feedback are listed below:

  1. How do we strengthen our Tribal Consultation Policy and Process across the Department to ensure all operating and staff divisions are responsive and engaging with Indian Country in a meaningful way?
  2. How do we improve our communication and outreach regarding policy or program changes at the Department that impact Indian Tribes? Are there specific areas where Tribal officials would like more information or feel they are not getting adequate outreach to engage in a meaningful way?
  3. How do we improve our annual regional Tribal Consultations? Should we continue to have sessions every year, or should we host national sessions?
  4. What comments or concerns do you have that will help us improve HHS Tribal Consultation Policy?

Please send us your initial comments and recommendations no later than March 26, 2021 to consultation@hhs.gov. This initial feedback will help guide us in next steps for further consultation later this year.

Budget Consultation – The 23rd U.S. Department of Health and Human Services (HHS) Virtual
Annual Tribal Budget Consultation (ATBC) will be held on April 6 -7, 2021. This year’s ATBC will once again be held virtually using the ZoomGov platform due to the ongoing pandemic, with written
testimony provided to HHS by e-mail and technical assistance given virtually.

As in previous years, the HHS will host 1-hour planning sessions for the consultation starting on Thursday, March 11, 2021 at 1:00 PM ET. During these sessions, agenda topics and the structure for the 2-day consultation will be discussed and finalized. Please register to attend a session at the following link: Planning Session Registration. Below is a schedule of the planning calls:

  • Thursday, March 11, 2021 at 1:00 PM ET
  • Thursday, March 18, 2021 at 1:00 PM ET
  • Thursday, March 25, 2021 at 1:00 PM ET
  • Thursday, April 1, 2021 at 1:00 PM ET

You can register for the 2021 Annual Budget Consultation by signing up at the following link: Register Here. If you would like to request a one-on-one, please e-mail: consultation@hhs.gov. As we do every year, HHS will accept Written Testimony for the official record from Tribes. Testimony should be submitted by Wednesday, April 7, 2021. Testimony can be emailed to consultation@hhs.gov. The consultation record will remain open for 30 days after the virtual session wherein additional testimony will also be accepted.

Regional Consultation – The 2021 HHS Annual Regional Tribal Consultation sessions will once again be virtual this year. These sessions are designed to provide Tribal leaders with the opportunity to address HHS on how the Department can improve Tribal outreach and coordination and to discuss programmatic and policy issues and concerns with Tribes.

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.

*This content is in the process of Section 508 review. If you need immediate assistance accessing this content, please submit a request to tribalaffairs@hhs.gov. Content will be updated pending the outcome of the Section 508 review.

Content created by Office of Intergovernmental and External Affairs (IEA)
Content last reviewed on March 19, 2021