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
AMERICAN INDIANS AND ALASKA NATIVES
SUMMARY AND RECOMMENDATIONS
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.
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).
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:
Other HHS components that rely on more general statutory consultation language conduct activities that directly affect Indian people.
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.
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.
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:
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).
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.
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.
Timely feedback should be provided to Tribes and Indian organizations on the resolution of the issues for which consultation was requested.
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.