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HHS Logo THE SECRETARY OF HEALTH AND HUMAN SERVICES
WASHINGTON, D.C. 20201


TO:Heads of Operating Divisions
Heads of Staff Divisions
FROM:The Secretary
SUBJECT:Department Policy on Consultation with American
Indian/Alaska Native Tribes and Indian Organizations

The President's Memorandum of April 29, 1994, titled, "Government-to-Government Relationship with Native American Tribal Governments" that was sent to the heads of executive departments and agencies reaffirmed the unique relationship between the U.S. Government and Native American Tribal Governments as stated in the Constitution, treaties, statutes and court decisions and directed each executive department and agency to consult with tribal governments prior to taking actions that affect them.

The Domestic Policy Council (DPC) Working Group on Indian Affairs, chaired by Secretary Babbitt, has requested that each Department develop its own operational definition of "consultation" with Indian tribes to meet the requirements of both the Indian Self-Determination and Educational Assistance Act, Public Law 93-638, and the President's Memorandum.

The DPC's recommendations led to the creation of an HHS Working Group on Consultations with American Indians and Alaska Natives. Co-chaired by Jo Ivey Boufford, M.D., former Acting Assistant Secretary for Health, and Michael H. Trujillo, M.D., Director, Indian Health Service, this group was comprised of representatives of the Department's major Operating Divisions and Office of the Secretary Staff Divisions [OPDIV/STAFFDIV]. During several meetings, the group explored the broad array of American Indian and Alaska Native (AI/AN) programs within the Department and developed a report recommending a Department-wide consultation plan (attached). I have accepted the Working Group's recommendations in the attached report and have the designated the OS/Office of Intergovernmental Affairs (IGA) as the lead for the Department. As stated in the Working Group's report, each OPDIV/STAFFDIV should develop their own individualized consultation plan consistent with HHS policy. Completed plans should be submitted to IGA by August 29. Each OPDIV/STAFFDIV should submit an annual progress report on consultations conducted during the previous fiscal year to IGA no later than December 31 of each year.

I know all of you share with me a commitment to ensure that the intent and spirit of the President's Memorandum is fully embraced in the Consultation process that we are implementing.

Donna E. Shalala

 

 

 

 

 

 

DEPARTMENT OF HEALTH AND HUMAN SERVICES

WORKING GROUP REPORT ON CONSULTATION

WITH

AMERICAN INDIANS AND ALASKA NATIVES

REPORT

 

SUMMARY AND RECOMMENDATIONS

 

  1. INTRODUCTION

The Domestic Policy Council (DPC) Working Group in Indian Affairs chaired by Secretary Babbitt has requested that each department develop its own operational definition of "consultation" with Indian tribes to meet the requirements of both the Indian Self-Determination and Educational Assistance Act, Public Law (P.L.) 93-638, and the April 29, 1994, Executive Memorandum on Government-to-Government Relations with Native American Tribal Governments. Each department should also develop mechanisms to ensure that Native American tribal governments are given an opportunity to provide input on department plans and that the approach decided upon is clearly communicated to Indian communities.

The United States (U.S.) government and the governments of American Indians and Alaska Natives (AI/AN or Indian people) have a "government-to-government" relationship based on the U.S. Constitution, treaties, Federal statutes, court decisions, and Executive Branch policies, as well as moral and ethical considerations. This special relationship also constitutes a trust relationship between these two governments. Certain benefits provided to Indian people through Federal legislatively enacted programs flow from this trust relationship. These benefits are not based upon race, but rather, are divided from the government-to-government relationship. A vital component of this relationship is consultation between the Federal and tribal governments. In cases where the government-to-government relationship does not exist, as with urban Indian centers, Inter-tribal organizations, state recognized tribal groups, and other Indian organizations, consultation is encouraged to the extent that there is not a conflict-of-interest in the above stated Federal statutes or the Operation Division/Staff Division (OPDIV/STAFFDIV) authorizing legislation. Some aspects of this consultation are set out in statute and administrative policy.

  1. FOUNDATIONS
  1. Federally Recognized Tribes
  2.  

    The special relationship between the U.S. government and tribal governments is grounded in many historical, political, legal, moral, and ethical considerations. Increasingly this special relationship has emphasized self-determination for Indian people and meaningful involvement by Indian people in Federal decision making (consultation) where such decisions affect Indian people, either because of their status as Indian people or otherwise.

    Consultation examples include:

    1. A provision in the Indian Self-Determination and Education Assistance Act, P.L. 93-638, as amended, codified at 25 U.S.C. 450a states that:

    "(a) Congress...recognizes the obligation of the United States to respond to the strong expression of the Indian people for self-determination by assuring maximum Indian participation in the direction of...Federal services to Indian communities so as to render such services more responsive to the needs and desires of those communities."

    "(b) The Congress declares its commitment to the maintenance of the Federal government's unique and continuing relationship with, and responsibility to, individual Indian tribes and Indian people as a whole through...effective and meaningful participation by the Indian people in the planning, conduct, and administration of those programs and services."

    2. Regulations implementing the Indian Self-Determination Act, as amended, contain the following provisions:

    25 C.F.R. 900.3 (a) (2): "Congress has declared its commitment to the maintenance of the Federal government's unique and continuing relationship with, and responsibility to, individual Indian tribes and to the Indian people as a whole through the establishment of meaningful Indian self-determination policy which will permit an orderly transition from the Federal domination of programs for, and services to, Indians to effective and meaningful participation by the Indian people in the planning, conduct and administration of those programs and services."

    25 C.F.R. 900.3 (b) (1): "It is the policy of the Secretary to facilitate the effort of Indian tribes and tribal organizations to plan, conduct and administer programs, functions, services and activities, or portions thereof, which the departments are authorized to administer for the benefit of Indians because of their status as Indians...."

    3. The Indian Health Care Improvement Act, P.L. 94-437, contains a "Congressional Finding[ ]," codified at 25 U.S.C. 1601, that:

    "(b) A major national goal of the United States is to provide the quantity and quality of health services which will permit the health status of Indians to be raised to the highest possible level and to encourage the maximum participation of Indians in the planning and management of those services."

    4. The Unfunded Mandates Reform Act of 1995, P.L. 104-4 states:

    Section 2. "The purposes of this Act are... to assist Federal agencies in their consideration of proposed regulations affecting... Tribal governments by... requiring those Federal agencies develop a process to enable... Tribal governments to provide input when Federal agencies are developing regulations, and requiring that Federal agencies prepare and consider the budgetary impact of Federal regulations containing Federal mandates upon... Tribal governments before adopting such regulations."

    5. The President's Memorandum of April 29, 1994, to heads of executive departments and agencies titled, "Government-to-Government Relations with Native American Tribal Governments," outlines the concepts of consultation (Attached).

  3. Non Federally Recognized Tribes and Other Native American People

Indian people are often significantly or differently affected by the Department of Health and Human Services (HHS) actions, may have special needs that HHS policy makers may not be sensitive to, may make especially valuable contributions to policy formulation and program administration because of their unique perspectives, and may be expressly mentioned in HHS statutes, or need to be effectively and efficiently served as a part of the HHS' mission.

Although the special "tribal-federal" relationship is based in part on the government-to-government relationship, other statutes and policies exist that allow for consultation with non-federally recognized tribes and other Indian organizations that, by the mere nature of their business, serve Indian people and might be negatively affected if excluded from the consultation process. Specifically:

  1. A statute administered by the Indian Health Service (IHS), 25 U.S.C. 1653, requires the Secretary of HHS to enter into contracts with or issue grants to urban Indian organizations to assist such urban centers for the provision of health care and referral services for urban Indians residing in the urban centers in which such organizations are situated. (42 U.S.C. 1654 authorizes grants and contracts with urban Indian organizations to determine the health status and unmet health needs of urban Indians.)
  2.  

  3. A statute administered by the Administration for Native Americans (ANA), Sec. 802. [42 U.S.C. 2991b], provides financial assistance for Native Americans projects including but not limited to, governing bodies of Indian tribes on Federal and State reservations, Alaska Native Settlement Act, and such public and nonprofit agencies serving Native Hawaiian, and Indian and Alaska Native organizations in urban areas that are not Indian reservations or Alaska Native villages, for projects pertaining to the purposes of this title. The Commissioner is authorized to provide financial assistance to public and nonprofit agencies serving other Native American Pacific Islanders (including American Samoan Natives) for projects pertaining to the purposes of this act. In determining the projects to be assisted under this title, the Commissioner shall consult with other Federal agencies for the purposes of eliminating duplication or conflict among similar activities or projects and for the purpose of determining whether the findings resulting from those projects may be incorporated into one or more programs for which those agencies are responsible. Every determination made with respect to a request for financial assistance under this section shall be made without regard to whether the agency making such request serves, or the project to be assisted is for the benefit of, Indians who are not members of a federally recognized tribe..." The Statute (42 U.S.C. 2991b-2 (c) (2)) also requires that the Administration of Native Americans (ANA) Commissioner, "serve as an effective and visible advocate for Native Americans"...;" while 42 U.S.C. 2991b-2 (d) establishes, in the Office of the Secretary, the Intra-Departmental Council on Native American Affairs. Among its responsibilities, 42 U.S.C. 2991b-2 (c) (3) requires that this Council assist the Commissioner in "coordinating activities within the department leading to the development of policies, programs, and budgets, and their administration that directly affect Indian and other Native populations..."
  4.  

  5. A statute administered by the Administration for Children and Families that establishes the Low Income Home Energy Assistance Program (42 U.S.C. 8621 et seq.) and its implementing regulations (45 C.F.R. 96.48) make clear that Federal and State recognized tribes may receive direct funding under this block grant.
  6.  

  7. A statute administered by the Health Resources and Services Administration that establishes the Centers of Excellence in the Minority Health Program (42 U.S.C. 293c (c) (4), (d) (3), (e) provides for the funding of programs in health professions education at Native American Centers of Excellence.

Other HHS components that rely on more general statutory consultation language conduct activities that directly affect Indian people.

  1. THE DOMESTIC POLICY COUNCIL (DPC) WORKING GROUP ON AMERICAN INDIAN/ALASKA NATIVE AFFAIRS CONSULTATION PROCESS

In response to the President's 1994 Memorandum, the DPC's Working Group on Indian Affairs led by the Secretary of the Interior established a subgroup to develop a consultation policy. After nearly 2 years of analysis and deliberations toward devising a uniform, Government-wide consultation policy, the DPC concluded that such uniformity was undesirable given the different organizational structures, statutory considerations and agencies. Therefore, the DPC recommended that each department be charged with developing its own individualized consultation policy/plan. The DPC drafted guidelines identifying six points that should be addressed by each department's consultation policy/plan.

  1. Each department will develop a general department-wide AI/AN policy/plan that outlines its general direction on consultation.
  2.  

  3. Each department will develop its own methods of consultation based on its internal requirements using tools that it has available.
  4.  

  5. As part of the decision-making process for major issues that affect AI/ANs, each department will develop a short "consultation plan" that will indicate to tribal governments how, for example, consultation in general, and time frames would be carried out on a particular basis.
  6.  

  7. Each department will include an appropriate plan for the receipt of input, allowing for adequate response time, on AI/AN appropriation needs before the department submits its fiscal budget to the Office of Management and Budget. Each department should encourage tribal government input in its budget formulation process so that it may be useful to their decision-making.
  8.  

  9. Each department will utilize ether the Codetalk Home Page or its own Home Page (with a link to Codetalk) to make its consultation plan known to the tribes and the public. Each department should also use its Home Page to solicit tribal government comments on its consultation plan. Finally, each department should have its own American Indian/Alaska Native Policy Statement available at the same Home Page source.
  10.  

  11. Each "consultation plan" should include sufficient time and access so that tribes may provide input before a final decision is made.
  1. HHS AI/AN CONSULTATION PROCESSES AND RECOMMENDATIONS

 

The DPC's recommendations on departmental policy formulation led to the creation of an HHS Working Group on Consultations with American Indians and Alaska Natives. Co-chaired by Jo Ivey Boufford, M.D., former Acting Assistant Secretary for Health, and Michael H. Trujillo, M.D., Director, Indian Health Service (IHS). This group is comprised of representatives from the department's major Operating Divisions and Office of the Secretary Staff Divisions (OPDIV/STAFFDIV). During several meetings, the group explored the broad array of AI/AN programs within the department that resulted in a departmental report, "Improving the Health and Well-Being of American Indians and Alaska Natives." This report is a summary of each OPDIV/STAFFDIV's 1995-1996 activities and/or programs for AI/AN people.

The HHS Working Group also reviewed each OPDIV/STAFFDIV's current approach(es) to consultation, and worked to develop recommendations for a departmental approach to consultation that could be forwarded to the Secretary. The working group recommended that the department's Consultation Plan consist of the individual OPDIV/STAFFDIV plans and any department-wide consultation processes as deemed necessary.

  1. RECOMMENDATIONS

 

  1. HHS APPROACH TO CONSULTATION

Based on the HHS Working Group deliberations and review of work accomplished by IHS, the following definition of "consultation" is proposed for HHS use:

"Consultation is an enhanced form of communication which emphasizes trust, respect and shared responsibility. It is an open and free exchange of information and opinion among parties, which leads to mutual understanding and comprehension. Consultation is integral to a deliberative process which results in effective collaboration and informed decision making."

It is recommended that the policy of this Department be:

  1. To consult with Indian people to the greatest practicable extent and to the extent permitted by law before taking actions that effect these governments and people;
  2.  

  3. To assist States in the development and implementation of mechanisms for consultation with their respective tribal governments and Indian organizations before taking actions that will affect these governments and/or the Indian people residing within their state. Consultation should be conducted in a meaningful manner that is consistent with the definition of "consultation" as defined in this policy, including reporting to the appropriate HHS agency on its findings, and on the results of the consultation process that was utilized;
  4.  

  5. To assess the impact of this Department's plans, projects, programs and activities on tribal and other available resources;
  6.  

  7. To remove any procedural impediments to working directly with tribal governments or Indian people; and
  8.  

  9. To work collaboratively with other Federal agencies in these efforts.

 

    B. DEPARTMENTAL-LEVEL ACTIONS

 

  1. Consistent with the thrust of the DPC guidance on budget consultation, it is recommended that the Office of Intergovernmental Affairs (IGA), IHS, ANA, and the Office of Minority Health (OMH), convene for the department, an annual meeting of Indian people to present their appropriation needs and priorities. The OPDIVs and STAFFDIVs are encouraged to suggest participants that should be included in attendance. This meeting should take place before the submission by OPDIVs/STAFFDIVs of their budget requests to the department (probably in May of each year). The Assistant Secretary for Management and Budget and other appropriate OPDIVs/STAFFDIVs will have representatives at this meeting to ensure that these needs and priorities are made known to the members of the department's Budget Review Board.
  2.  

    Before the annual meeting, a brief, clear document summarizing the preceding years departmental budget should be made available as a basis for discussion to all potential consultation participants. Before or after this meeting, OPDIVs/STAFFDIVs who wish to conduct consultation on the fiscal year budgets specific to their programs or other OPDIV/STAFFDIV activities relevant to AI/AN, are encouraged to do so (the proposed approach should be outlined in the specific OPDIV/STAFFDIV consultation policy/plan).

     

  3. The department should determine if there are other issues or priorities for legislation or cross cutting initiatives that require department level consultation and develop a process for such consultation, otherwise, the processes developed by each OPDIV/STAFFDIV should be aggregated as the departmental process and communicated appropriately.
  4.  

  5. The department will designate a single point-of-contact that can provide AI/AN representatives with access to departmental program information and assistance. This function will be located in the OS/IGA, linked to HHS Regional Offices for field follow-up/contact.

 

    C. OPDIV/STAFFDIV LEVEL ACTIONS

 

RECOMMENDATIONS:

  1. Each OPDIV should prepare a draft policy/plan for a consultation process. The OS should be considered an OPDIV for these purposes so that STAFFDIVs may consult as a group and develop an integrated, cross-cutting consultation process. This draft will be reviewed by the Working Group for comment and by the Office of the General Counsel for any legal issues. The Assistant Secretary for Management and Budget would be considered the lead for the annual Department-wide budget consultation described above.
  2.  

  3. Each OPDIV (and STAFFDIV) should consult with AI/AN leaders on their "reviewed" policy/plan (see IHS "Tribal Consultation and Participation Policy," (Attachment A).
  4.  

  5. Each OPDIV (and STAFFDIV) policy/plan should include:
  6.  

    A specific delineation of the issues on which advice/consultation will be sought or criteria that will be used to identify the issues. In general, budget matters and legislation affecting tribes are considered critical for consultation. The OPDIVs/STAFFDIVs, which have difficulty with this item, may wish to conduct a focus group of AI/AN representatives to recommend the kinds of items on which consultation should be conducted.

    A provision that seeks to ensure that the OPDIV/STAFFDIV will assist States in the development and implementation of mechanisms for consultation with their respective tribal governments and Indian organizations before taking actions that affect these governments and/or the Indian people residing within their State. Consultation should be conducted in a meaningful manner that is consistent with the definition of "consultation" as defined in this policy, including reporting to the appropriate HHS agency on its findings, and on the results of the consultation process that was used.

    A mechanism by which the OPDIV/STAFFDIV will evaluate the States efforts in compliance with the consultation process with tribal governments and Indian organizations.

    Guidelines that define how the OPDIV/STAFFDIV will address States in situations when the evaluation has identified deficiencies in the consultation process as set forth in this policy.

    A defined process for early inclusion of tribal governments and other Indian people in the decision-making process;

    Specific mechanisms that will be used to consult with tribal governments. In consultation with tribal governments and other Indian people, the decision could be made to use IHS or other mechanisms such as intermediate national or regional organizations and conferences, or establish specific structures for ongoing advice from Indian communities.

  7. Consultation process: Further, each OPDIVs/STAFFDIVs plan should also provide:
  8. Sufficient background information to assure a thorough understanding of each issue on which consultation is requested, including a clear statement of the potential impact of the proposed action on Indian people.

    A clear statement of the advice requested.

    A specific time frame for response from consulted entities.

    A clear indication of whom should receive the reply.

  9. Upon completion of consultation, there may be issues that would benefit from ongoing involvement of Indian people in implementation and evaluation. The OPDIV/STAFFDIV plans should include mechanisms to address this need.
  10. Timely feedback should be provided to Tribes and Indian organizations on the resolution of the issues for which consultation was requested.

  11. The consultation process when finalized should be displayed on the OPDIV/STAFFDIV's Home Page and on OMH's Association of American Indian Physicians (AAIP) Home Page, which already connects to the IHS Home Page and should be connected to the HHS and Codetalk Home Pages. It was noted that assuring adequate consultation may require the investment of resources by the OPDIVs/STAFFDIVs, such as provision of training, detailing of staff or providing information technology to tribal governments and other Indian people. In instance where computer capabilities are absent, OPDIVs/STAFFDIVs should attempt to disseminate information by other media mechanisms such as the telephone, newspaper, magazines, newsletters, etc.
  12.  

  13. Establishment of a single point-of-contact for tribal governments and other Indian people within each OPDIV/STAFFDIV at a level with access to information of all the OPDIVs/STAFFDIVs operating components and programmatic levels is recommended. This will assist the department's point of contact in the IGA in accessing department-wide information and aid in providing a single entry point to HHS-wide information.
  14.  

  15. Each OPDIV/STAFFDIV will submit to the IGA by December 31 an annual report on the previous fiscal years consultation activities addressing how each point in their plan was implemented for each consultation conducted

 

  1. SUMMARY

We have endeavored to consider a wide range of OPDIV/STAFFDIV needs and unique characteristics in crafting these guidelines. As there is variability among the OPDIVs/STAFFDIV's, there is also a need to allow for variability over time. Hence, it is important that consultation plans developed by OPDIVs/STAFFDIVs remain dynamic, changing as circumstances and AI/AN input indicates. Once the Department has its basic consultation policy in place, it should seek to integrate its efforts with those of other departments and agencies. Such intra-governmental coordination will benefit the departments and agencies as well as AI/ANs.


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