OS Consultation Plan - Staff Divisions

TRIBAL CONSULTATION PLAN

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

Office of the Secretary – Staff Divisions

1.         INTRODUCTION

            The United States (U.S.) government and the governments of American Indians and Alaska Natives (AI/AN or Indian people) have a unique 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.  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.

            Consistent with these principals, the President issued an Executive Memorandum on April 29, 1994, titled, “Government-to-Government Relationship with Native American Tribal Governments.”  This Memorandum states that in all activities relating to or affecting the government or treaty rights of Indian tribes, the executive branch shall:

a. operate within a government-to-government relationship with federally recognized Indian tribes;

b. consult, to the greatest extent practicable and permitted by law, with Indian tribal governments before taking actions that affect federally recognized Indian tribes;

c. assess the impact of agency activities on tribal trust resources and assure that tribal interests are considered before the activities are undertaken;

d. remove procedural impediments to working directly with tribal governments on activities that affect trust property or governmental rights of the tribes; and

e.work cooperatively with other agencies to accomplish these goals established by the President.

The President issued Executive Order 13084, dated May 14, 1998 and titled “Consultation and Coordination with Indian Tribal Governments”, to establish regular and meaningful consultation and collaboration with Indian tribal governments:

a. In the development of regulatory practices on Federal matters that significantly or uniquely affect their communities;

b. To reduce the imposition of unfunded mandates upon Indian tribal governments; and

c. To streamline the application process for and increase the availability of waivers to Indian tribal governments.

On August 7, 1997, U.S. Department of Health and Human Services (HHS) Secretary Donna E. Shalala issued a memorandum establishing the HHS policy on consultation with American Indian/Alaska Native (AI/AN) Tribes and Indian organizations.  In addition to establishing HHS wide policy, this memorandum directed each agency to develop their own individualized consultation plan consistent with HHS policy.

On November 6, 2000, President Clinton issued his final directive from the White House regarding tribal consultation, Executive Order 13175, titled “Consultation and Coordination with Indian Tribal Governments.”  EO 13175, which mirrors the Administration’s Federalism Executive Order pertaining to state and local governments, requires all departments and agencies to consult with tribes as they develop policy on issues that have tribal implications.  This latest Executive Order expands the criteria to be met when formulating and implementing policies that have tribal implications.  It also requires that each agency select an official with principal responsibility for the implementation of this order.   Compliance with the EO will be monitored by Executive Secretariat to the Department.

Consultation examples include:

a. Departmental regulations implementing the Indian Self-Determination Act, as amended, such as: “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…”

b. Federal laws such as the Unfunded Mandates reform Act of 1995, P.L.104-4, which states: “The purposes of this Act are…to assist Federal agencies in their consideration of proposed regulations affecting…Tribal governments by…requiring that 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 (Sec.2).”

2. PURPOSE

To establish an Office of the Secretary (OS) Staff Division (STAFFDIV) policy on consultation with AI/AN tribal governments; reaffirm the STAFFDIV recognition of the sovereign status of federally recognized Indian tribes; to reaffirm adherence to the principles of government-to-government relations; to inform Staff division personnel, other federal agencies, federally recognized Indian tribes, Indian organizations, and the public of the STAFFDIV working relationships with federally recognized Indian tribes.

3. DEFINITION

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

4.      STAFFDIV PARTICIPATION IN DEPARTMENT ACTIONS

HHS OS STAFFDIVs share numerous common characteristics.  Their similar missions, goals, operations, and resources are distinct from those of the Department’s Operating Divisions (OPDIVs).   Based on the shared characteristics of the STAFF/DIVs, and their distinction from the OPDIVs, the Tribal Consultation Working Group requested that the STAFFDIVs develop an integrated response to the initiative.

The STAFFDIVs are responsible for administration, policy development and analysis, budget recommendations and justification, information management, intergovernmental relations, monitoring of program quality, prevention and detection of fraud, waste, and abuse, and other personnel intensive activities for the entire Department.  In general, OS STAFFDIVs have no direct responsibilities for grant making, health or social services delivery, or related program activities.

Consistent with the HHS policy, STAFFDIVs will maintain a list of suggested AI/AN participants to attend consultation meetings or subject matter/expert roundtables or forums convened for the department. 

The OS will coordinate with other agencies in determining other issues or priorities for legislation or cross cutting initiatives that require department level consultation.

The OS designated single point of contact for program information and assistance will be the Senior Advisor on American Indian and Alaskan Native Affairs, in the Office of Intergovernmental Affairs (OIGA).

5.  OS LEVEL ACTIONS

a. With advice and consultation from tribal governments, OIGA will work with the STAFFDIVs to identify critical events at which tribal consultation and participation will be required.  This will be accomplished within 120 days of approval of this plan.

Although the principal focus for consultation and participation activities of OS is with individual tribal governments, it is important that OS solicit advice and involvement from nation Indian organizations and other AI/AN organizations interested in issues affecting AI/ANs.

Focus group sessions will be held to solicit official tribal comments and recommendations on legislation and budget matters affecting AI/ANs.  Issue sessions at roundtables, forums, and meetings will provide the opportunity for meaningful and effective participation by AI/AN officials and organizations in the planning of the OS functions and services.

The Government Performance and Results Act (GPRA) is intended to help Federal programs succeed by identifying what constitutes successful program performance, what resources are needed and what challenges exist which affect achieving success.  GPRA also requires accountability.  Consultation with AI/AN will assure that the OS functions achieve success.

b. OIGA will coordinate with OPDIVs to assist states in developing mechanisms for consultation with their AI/AN governments and Indian organizations before taking any actions that affect these governments and/or Indian people.  States will receive assistance in developing state plan assurances for the delivery of services to AIs/ANs.

State consultation with AI/AN should be done in a meaningful manner that is consistent with the definition of “consultation” as defined in this policy plan.

OIGA will assure that State plans on consultation with AI/AN are successful by convening conferences with States, AI/AN tribes and organizations, to develop a set of consultation protocols.  The developed protocols will be used in the evaluation of States efforts to consult with AI/AN governments and organizations.  Technical assistance and monitoring will be provided by Regional Office staff.

Specific mechanisms that will be used to consult with tribal governments are: mailings, meetings, teleconferences, and roundtables.

c.The Assistant Secretary for Management and Budget (ASMB) and the

OIGA have established an annual Department-wide budget consultation meeting to bring tribal representatives together with HHS policy officials providing these representatives with an opportunity to present their appropriation priorities.  These meetings have taken place in the Spring, before the OPDIVs and STAFFDIVs submit their budget requests to the Department.

d.The OIGA upon completion of a consultation will determine if there are any unresolved issues that would benefit from ongoing involvement of AI/AN tribal governments in implementation and evaluation.  The OIGA will include a mechanism to address this need.

e. The OIGA will consult with AI/AN leaders on the “reviewed” policy/plan to provide for effective and meaningful participation by AI/AN.

f. The single point of contact within the OIGA for tribal governments and other Indian people, at a level with access to all OPDIVs/STAFFDIVs, is the Senior Advisor on American Indian and Alaska Native Affairs.  This office will serve as the department’s point of contact in accessing department-wide information.

g. The HHS consultation policy and implementation plans will be posted on the HHS website homepage, appropriate American Indian websites, and published in the Federal Register soliciting comments.  Tribes will be given access to HHS consultation with sufficient time to respond before any final decisions are made.

h. The OIGA will continue to inform tribal leaders on consultation policy by holding meetings, roundtables, teleconferences, forums, and placing information on the HHS website homepage and other appropriate websites.

SUMMARY:

            The OIGA considers consultation an evolving process.   The HHS’ central and regional offices have established relationships with Tribal governments and Indian organizations with which they communicate about HHS programs.  This joint partnership will ensure implementation of the consultation plan, allow recommendations for revisions based on periodic assessments, and assure that Tribal issues are promptly addressed.