U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
Tribal Consultation Policy Tribal Federal Workgroup
On November 5, 2009 President Obama signed the “Memorandum for the Heads of Executive Departments and Agencies on Tribal Consultation.” The President stated that his Administration is committed to regular and meaningful consultation and collaboration with tribal officials in policy decisions that have tribal implications including, as an initial step, through complete and consistent implementation of Executive Order 13175. Accordingly, he directed each agency head to submit to the Director of the Office of Management and Budget (OMB), within 90 days after the date of the memorandum, a detailed plan of actions the agency will take to implement the policies and directives of Executive Order 13175.
HHS has taken its responsibility to comply with Executive Order 13175 very seriously over the past decade -- including the initial implementation of a Department-wide policy on Tribal consultation and coordination in 1997, and through multiple evaluations and revisions of that policy, most recently in 2008. As a result of that commitment many HHS agencies have developed their own agency-specific consultation policies that complement the Department-wide efforts. With that same commitment in mind, Secretary Sebelius seized the opportunity to consult Indian Tribes on how to improve the HHS Tribal Consultation Policy. This Executive Summary is a result of all the efforts that went into providing an HHS Tribal Consultation Policy for review and comment by Indian Tribes.
Below you will find a timeline of activities as well as a summary of activities and guidance to better articulate the HHS Tribal Consultation Policy. Since the implementation of the President’s memo HHS has done the following outreach:
- December 15, 2009: Letter from Secretary Sebelius to Tribal Leaders requesting comments on HHS Tribal Consultation Policy and process.
- February 4, 2010: Memo to OMB outlining HHS compliance with Executive Order 13175 and plans for improving consultation with Tribal Governments.
- February 18, 2010: Memo from the Secretary Sebelius to Tribes announcing 2010 HHS Regional Tribal Consultation Sessions.
- May 26, 2010: Memo from Paul Dioguardi to Tribal Leaders seeking nominations for the HHS workgroup that will evaluate and update the HHS. Tribal Consultation Policy.
- July 12, 2010: All Tribes received a letter requesting nominations for a delegate and alternate to be a part of the HHS Tribal Federal Workgroup who would make recommendations on the HHS Tribal Consultation Policy.
- July 28-29, 2010: HHS convened the first meeting of the workgroup.
- September 1-2, 2010: HHS convened the 2nd meeting of the workgroup.
- September 22, 2010: Final meeting of the Tribal/Federal Workgroup
- October 7, 2010: Workgroup recommendations on the Tribal Consultation Policy submitted to the HHS Internal Clearance process.
- October 15, 2010 (projected): Open Comment Period begins for Indian Tribes to comment on the revised Tribal Consultation Policy. Record will remain open until November 8, 2010.
- Mid November 2010 (projected): Review of all comments. IGA revises policy in conjunction with Tribal/Federal Workgroup.
- December 2010 (projected): Policy Recommendations finalized. Final revised policy submitted to OS/ES for Departmental and OMB clearance.
WORKGROUP CHARGE AND PROCESS
At the July meeting of the TFWG, Jonathan Windy Boy, Vice President, Chippewa Cree Tribe of Rocky Boy, was selected as the Chair of the committee and Andy Joseph, Councilman, Confederated Tribes of Colville, as the co-chair of the workgroup. Secretary Sebelius addressed the group by providing them with guidance and her thoughts on improving consultation at HHS. She also charged the Office of Intergovernmental Affairs (IGA) with the responsibility for coordinating and facilitating all TFWG activities.
Tribal leaders’ were afforded three vehicles/opportunities to provide input on HHS’s Tribal Consultation Policy: 1) written/emailed responses; 2) Annual National HHS Tribal Budget and Policy Consultation; and 3) HHS Regional Tribal Consultation Sessions. Tribal Leaders were also asked to specifically comment on the following topics at these opportunities: HHS’s Tribal Consultation Policy, Regional Consultation Format, Agency Tribal Consultation Policies, and HHS Tribal Advisory Committees.
The TFWP reviewed and evaluated all Tribal leaders’ comments and recommendations, Administration tribal consultation orders, guidance, memoranda, policies, plans, transcripts and other correspondence related to tribal consultation to develop revisions to the Secretary’s existing HHS policy.
Overall, Tribal leaders stressed that consultation was a key determinant to a successful relationship between the Federal government and Tribes throughout Indian Country. Tribal Leader recommendations and comments were aggregated into three main recommendations:
- To improve communication and outreach regarding policy or program changes with Tribes,
- To improve accountability of the HHS policy across the Department, by implementation of monitoring/reporting activities by establishing a strategy to evaluate, measure and ensure accountability.
- Tribal leaders recommended that HHS ensure that all parties understand the purpose, meaning, and intent of Tribal consultation.
HHS IMPLICATIONS OF THE TRIBAL CONSULATION POLICY
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.
WORKGROUP MAJOR RECOMMENDATIONS AND CHANGES
Workgroup members used this opportunity to provide recommendations to the Tribal Consultation Policy that would not only modernize the policy but also improve it in a fashion that is consistent with the partnership that Indian Tribes have with HHS. The workgroup utilized the opportunity to improve the roles, responsibilities and evaluation mechanisms for all partners to the Tribal Consultation Policy.
Recommendations from the workgroup are provided in four sections, overall purpose of the government to government relationship with Federally Recognized Tribes, New Updates to the Tribal Consultation Policy, Revision and Organization of relevant sections, and Deletions to the policy.
- GOVERNMENT TO GOVERNMENT RELATIONSHIP WITH FEDERALLY RECOGNIZED TRIBES
The workgroup concluded, after reading and evaluating all comments and recommendations from Indian Tribes, and reading transcripts from HHS consultations sessions that this policy must focus on the political relationship that federally recognized Tribes have with the United States Government. They felt that it was important to stress who and for what purpose the government to government relationship was established. Thus, whereas previously mention was made of non-recognized groups of Indigenous peoples like state recognized Tribes and Native Hawaiians, those references have been removed. However, many Divisions provide programs and associated funding to those groups of people and the Divisions should consider how best to include them in their own consultation policies or other policy guidance.
- NEW SECTIONS OF THE TRIBAL CONSULTATION POLICY
- The new purpose is to further clarify the roles and responsibilities of each party to the consultation. The substance of the policy is consistent with previous versions of the policy. However, efforts have been made to address Tribal concerns that there are no objective measures to ensure that Divisions are operating within the perimeters of the Policy, and that there are no consequences for failure to do so.
- Tribal Waiver Section
- This section clarifies the requirement for flexibility regarding Tribal waivers. The Executive Order 13175 of November 9, 2000 specified that Agencies must review the processes under which Indian Tribes apply for waivers of statutory and regulatory requirements in order to streamline those processes. This section further delineates the requirements of the Executive Order.
- CONSULTATION PROCEDURES AND RESPONSIBILITIES - States Section
- The workgroup felt that one of the main obstacles to effective implementation of this Tribal Consultation Policy was the continued practice of funding Tribes through state mechanisms for many federal programs. Often, Tribes are unsure whether this practice is based in statute/regulation or policy. Since there is far more flexibility regarding HHS’ policy, the workgroup felt it was appropriate to ask the Divisions to determine what the basis for this practice was in each instance to determine how effective consultation would be to alleviate this burdensome practice. The updates to this section reflect those goals.
- CONSULTATION PROCEDURES AND RESPONSIBILITIES – Parties and Procedures Guidance
- Updated language on how HHS will conduct consultation as well as guidance for implementation of the consultation process was included in the Regional and Budget Consultation Sections. Divisions are to coordinate their individual consultation efforts with the Office of Intergovernmental Affairs. With numerous consultations conducted by HHS and its Opdiv’s the need to provide guidance for when, how and who consultation would be conducted for Opdiv’s and Regions was a key component for both Tribes and HHS for participating or conduction consultation activities.
- REVISION AND ORGANIZATION
The workgroup felt it was important to revise and reorganize sections 7-11 of the current HHS Tribal Consultation Policy. The revisions entailed reorganization to provide clear guidance on roles, responsibilities, process and procedures for consulting with Indian Tribes.
The new sections are as follows:
- Consultation Participants and Roles
This section remains the same with a clarification to the title of the section.
- Tribal Consultation Process
This section further clarifies HHS responsibility to respond to Indian Tribes in a timely fashion. Much of this section remains the same as the existing policy.
- Consultation Procedures and Responsibilities
This section was reorganized and revised to reflect with whom, what and how consultation is convened at HHS as well as mechanisms that are used at each juncture. This section includes the updated State language as previously mentioned.
- Establishment Of Joint Tribal/Federal Workgroups And/Or Taskforces
Specific guidance for this section was moved to an addendum
- Health and Human Services Budget Formulation
Much of this language remains the same however two significant edits include: the annual budget session will take place prior to March 10 of every year, and it outlines how the session will be implemented and reported.
- Tribal Consultation Performance and Accountability
This section was reorganized for clarity.
- Consultation Participants and Roles
Deletions include: the Introduction, and definitions and acronyms that are no longer used in the revision, i.e. Native Organizations, Native Hawaiian and Non-- Recognized Tribe.