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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.

President Nixon’s "1970 Special Message to the Congress on Indian Affairs"
HHS Consultation Policy (Updated February 1, 2008), [PDF - 17.5MB]
President Clinton’s November 2000 Executive Order 13175 (Nov. 2000) entitled, "Consultation & Coordination with Indian Tribal Government"
President George W. Bush’s September 2004 Executive Memorandum entitled "Government-to-Government Relationship with Tribal Governments",
- Page One [PDF- 304KB]
- Page Two [PDF- 212KB]
President Obama’s November 2009 Executive Memorandum entitled "Tribal Consultation"

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

Regional Consultation - The HHS Regional Tribal Consultation Sessions are designed to solicit Indian Tribe’s priorities and needs on health and human services and programs. The sessions provide an opportunity for Indian Tribes to articulate their comments and concerns on budgets, regulations, legislation and HHS health and human services policy matters.

2012 Tribal Consultation Sessions

To view the 2011 Regional Tribal Consultation summaries, click here:

2011 HHS Regional Tribal Consultations: Executive Summary

Budget Consultation – The annual consultation session with tribes in regards to the HHS budget has been conducted over the last 10 years. The policy states that an annual, Department-wide Tribal budget formulation and consultation session, that includes each Operating and Staff Division that has involvement in Tribal activities, is conducted to give Indian Tribes and Tribal Organizations the opportunity to present their health and human services budget priorities and recommendations to the Department. In order for Divisions to receive and consider Tribal recommendations in the development of the budget request, this 2-day session is convened between February 1 and March 30 of each year.

Click here to view:

Consultation Report – The HHS Consultation Policy calls for an annual HHS Consultation Report. IGA is responsible for production of this report and has been compiling the report for the last 10 years. Once compiled the report is distributed to every tribe in the country, as well as national and regional tribal organizations. View the 2010 Annual Tribal Consultation Report.

COMMITTEES and WORKGOUPS

To support and enhance the Department’s consultation activities, HHS has also established a variety of Tribal Advisory Groups, which have proven to be a valuable resource for the Divisions they work with.

Centers for Medicaid & Medicare Services Tribal Advisory Group (TTAG)
The Centers for Medicare & Medicaid Services Tribal Advisory Group (TTAG) was established in 2003 with the first face-to-face meeting at HHS in February 2004. The TTAG serves as an advisory body to CMS, providing expertise on policies, guidelines, and programmatic issues affecting the delivery of health care for AI/ANs served by Titles XVIII, XIX, and XXI of the Social Security Act or any other health care program funded (in whole or in part) by CMS.

Centers for Disease Control and Prevention Tribal Consultation Advisory Committee (CDC TCAC)
The Centers for Disease Control and Prevention (CDC) and the Agency for Toxic Substances and Disease Registry (ATSDR), CDC Tribal Consultation Advisory Committee (TCAC) was established in 2006. The purpose of the TCAC as stated in our policy is to provide an ongoing means for tribal representatives and CDC staff to exchange information about public health issues in Indian country, identifies urgent public health needs in American Indian/Alaska Native communities, and discuss collaborative approaches to addressing these issues and needs.

Health Research Advisory Council (HRAC)
The Health Research Advisory Council (HRAC) was established in 2006 through a collaboration of many senior federal representatives from those OPDIVs/STAFFDIVs of the Department. The Office of Minority Health houses the HRAC and leads the group. The HRAC will support, and not supplant, any other government-to-government consultation activities that HHS undertakes with regard to health research. It will function much like disease-specific advisory groups already do in certain agencies of the Department. HRAC will provide a forum through which tribes can advise the Department on their health research priorities and needs, as well as how best to carry out health research involving AIs/ANs. Through the HRAC, operating and staff divisions of the HHS (herein after referred to as OPDIV and STAFFDIV) representatives can better communicate and coordinate the work of their respective organizations in AI/AN health research, and the Department can disseminate information to tribes about research findings from HHS-sponsored studies focusing on the health of AI/AN populations.

HRAC members will also have a responsibility to communicate critical information, research findings, and any other policy related activity back to their respective tribes and/or communities. Each federal representative will have experience in AI/AN-related health research. The participating HHS components are: the Office of the Assistant Secretary for Planning and Evaluation (ASPE), the Office of Intergovernmental Affairs (IGA), the Office of Minority Health (OMH), the Agency for Healthcare Research and Quality (AHRQ), the Centers for Disease Control and Prevention (CDC), the Indian Health Service (IHS), and the National Institutes of Health (NIH).

Substance Abuse Mental Health Service Administration Tribal Technical Advisory Committee (STTAC)
The STTAC was established in 2007 and the purpose of the STTAC is to provide a complementary venue wherein the SAMHSA Administrator or designee will solicit advice and views about substance abuse and mental health issues from AI/AN representatives and discuss collaborative solutions. The STTAC will support, and not supplant, any other government-to-government consultation activities that it undertakes. The STTAC will provide an established, recurring venue wherein tribal officials will advise SAMHSA regarding the government-to-government consultation process and will help to ensure that activities or policies that impact Indian Tribes are brought to the attention of all tribal officials.

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.