U.S. Department of Commerce
Plan Update to Develop a Tribal Consultation and Coordination Policy Implementing Executive Order 13175
October 2010

Purpose

By memorandum dated November 5, 2009, President Obama reiterated to the heads of executive departments and agencies the importance of engaging in regular consultation with Indian tribal governments in the development of federal policies that have tribal implications.  The President instructed each Executive Branch agency to develop – in consultation with Indian tribes and tribal leaders – a plan for implementing Executive Order (EO) 13175, “Consultation and Coordination with Indian Tribal Governments.” 

Effective intergovernmental communications and consultation between the Department of Commerce (DOC) and Tribal government are invaluable tools and critical functions in the Department of Commerce’s ability to successfully carry out its mission of promoting economic growth and opportunity for all Native Americans.  The Department seeks to ensure a sound and productive relationship with tribal governments through the development and maintenance of a meaningful dialogue.  This plan describes the framework through which the Department’s consultation and coordination policy will continue to be developed.

Plan of Action

The DOC has developed a Plan of Action to create and implement a Tribal Consultation and Coordination Policy.  Through the Office of Native American Affairs, the DOC has been utilizing information and feedback gathered through regional and national listening sessions with tribal officials and other federal agencies, including the Department of Interior, US Department of Agriculture, Small Business Administration, Department of Justice, Department of Education, Environmental Protection Agency, Department of Treasury and the U.S. Army Corps of Engineers.  These ongoing listening sessions are open and frank discussions that explore the full range of issues related to the achievement of tribal participation in policy matters that impact their members.  The DOC will ensure direct input from tribal leaders, Indian Country thought leaders, and tribal representative committees and commissions.

The DOC Tribal Consultation Plan (TCP) development team also continues to facilitate and conduct listening sessions at national, regional, and local NACI, AFN, ATNI, and USET events, Indian Country trade shows, and Natural Resource Committee events across the United States and Alaska. Since the announcement of the President’s memorandum of November 5, 2009, the team has received and continues to receive written consultation input via postal mail and e-mail from a number of tribal governments, tribal legal representatives, and tribal Natural Resource Commissions detailing specific areas of interest and concerns about the implementation of effective intergovernmental consultation processes.

The Tribal Consultation Policy (TCP) development team has also taken into account the OEM Memorandum dated July 30, 2010 providing guidance for implementing E.O. 13175, “Consultation and Coordination with Indian Tribal Governments”.

Outreach and Tribal Input

The following is a list of national and regional events – listening sessions, conference calls and regional dialogue sessions with tribes and representative committees – in which the DOC has participated.  These events have allowed department officials to have direct dialogue with tribes and tribal leaders:

Previous consultation listening events:

December 2 - 3, 2009 Tribal Justice, Safety and Wellness Sessions, Anchorage, AK
December 7, 2009, SBA 8a Consultations, Washington, DC
December 16 - 17, 2009 SBA 8a Consultations, Seattle, WA
January 11, 2010 SBA 8a Consultations, Dallas, TX
January 12, 2010 SBA 8a Consultations, Atlanta, GA
January 14 -15, 2010 SBA 8a Consultations, Albuquerque, NM
January 19, 2010 SBA 8a Consultations, Chicago, IL
February 7 – 10, 2010 ATNI Winter Conference, Grand Mound, WA
February 22 - 24, 2010 RES2010, Las Vegas, NV
March 2 - 5, 2010 NCAI Winter Conference, Washington, DC
March 9 - 11, 2010  NA Community Leaders Institute, Phoenix, AZ
April 19 - 22, 2010 Thirty-Fourth Annual National Indian Timber Symposium, Mescalero, NM
May 11 - 13, 2010 Native American Finance Conference, Chandler, AZ
May 17 - 20, 2010  ATNI Mid-Year Conference, Grand Ronde, OR
June 1 - 3, 2010 Sovereignty Symposium, Oklahoma City, OK
June 9 - 11, 2010 Tlingit Economic Development Conference, Juneau and Angoon, AK
June 14 - 17, 2010, SAIGE Conference, Mohegan, CT
July 29 - 30, 2010 Intertribal Timber Council, Talking Stick, AZ
August 3 – 6, 2010 NCAIED, Wild Horse Pass, AZ
August 23 - 27, 2010  MEDWeek, Washington, DC
September 14 -15, 2010 NAFOA Conference, Jersey City, NJ
September 20 - 22, 2010 AIANTA Conference, Tulalip, WA
October 5 - 7, 2010 Development of National System on Marine Protected Areas, Suquamish, WA

Upcoming consultation listening events:

October 19 - 24, 2010 AFN Convention, Fairbanks, AK
November 1 - 4, 2010 Tribal Natural Resource Committee, Washington, DC
November 15 – 19, 2010 NCAI 67th Annual Conference, Albuquerque, NM
December 13 - 16, 2010 NAMM Convention, Anaheim, CA

Through communication and outreach efforts, the DOC listened to tribal representatives from the sessions above and considered their comments and suggestions in the development of the policy framework.  

The following represents some of the constructive recommendations received from members of Indian Country.

1. Consultation teams will need to create a strategic plan with measurable results that can be tracked.

2. If you’re going to consult, know what you’re consulting on. Ask the right questions.

3. Create a training / indoctrination process for training all employees who will be engaged in the consultation process.

4. Commit to surveying current existing programs for appropriate tribal inclusion.

5. Develop rule writing guidance that ensures tribes are included and put in Rules check list.

6. Develop rules and policy to discern how and when to engage in formal tribal consultation.

7. Utilize and support regional tribal groups, help them build up their staff and expertise.

8. Agency must create a schedule for rulemaking.

9. Form tribal advisory groups with experts for continued comment and improvement of the process.

10. Agencies across the board need a consistent definition of Indian Country (broad sweeping) and Tribal lands (more narrow where tribe has clear regulatory jurisdiction). 

11. Create a network of tribal contacts who have the authority or designate authority to request or engage in consultation.

Utilizing Existing Frameworks

In designing the DOC consultation policy framework for input from tribal organizations, the Office of Native American Affairs reviewed and combined two existing Tribal Consultation Policies previously created and implemented by two DOC agencies, NOAA and the Census Bureau. Both NOAA and Census have had regular and ongoing tribal consultation engagements and implemented a Tribal Consultation Policy. The combination of these existing internal policies, along with input from field and regional employees that have longstanding relationships and experiences with tribal governments will provide a solid foundation for the DOC federal policy framework.

Communications

The DOC communication strategy has been effective as the department has disseminated information about the policy development process and obtained input from various stakeholders. The Office of Native American Affairs has:

• Created and launched a Native American Affairs website to post the office’s contact information and implementation plan as well as solicit comments and input. The office will also post progress reports, notices of upcoming listening sessions, and the Department’s draft and final consultation plans. 
• Participated in listening sessions with tribes and tribal groups at the Commerce and bureau levels.  Other federal agencies have also been engaged.

Timeline

The DOC TCP team will continue to develop a consultation policy based on a thorough review of best practices within the DOC; input received from tribal leaders and other stakeholders; and participation in government-wide activities.

The policy will be finalized and posted on the websites of the DOC and The White House. A process will also be adopted to routinely evaluate, modify, and strengthen the policy. 

The DOC will post the draft consultation policy framework by September 1, 2011 and the final policy by March 1, 2012   

Within 270 days of the plan update (August 5, 2011), the DOC will submit its second progress report on the plan’s development and implementation to the Office of Management and Budget.