The Department of the Treasury (“Treasury”) is seeking comments on its interim tribal consultation policy (“Interim Policy”), which outlines the guiding principles for Treasury bureaus and offices engaging in consultation with tribal governments. A copy of the Interim Policy is available at the following link:
We encourage you to submit comments urging Treasury to institute a better consultative process. In its present form, the Interim Policy falls short of providing substantive guidance on how to consult meaningfully with tribes on a government-to-government basis. Instead of encouraging collaboration in the decision-making process, the Interim Policy sets forth a generalized process for “receiving input from Indian tribes.” Significant revisions are needed to ensure that the Interim Policy maximizes opportunities for partnership and coordination on matters of mutual importance.
To assist you in developing your comments, we have prepared a model comment letter outlining the major issues in the Interim Policy. Please note that comments must be submitted on or before April 2, 2015 via the Federal eRulemaking Portal (www.regulations.gov) or by email to TRIBAL.CONSULT@treasury.gov.
If you have any questions or concerns regarding this alert, please contact our Legislative Director, Veronica Watters, at 202-546-7711 or via email at email@example.com.
Ms. Elaine Buckberg
Deputy Assistant Secretary
Office of Economic Policy
U.S. Department of the Treasury
1500 Pennsylvania Ave., NW
Washington, DC 20220
Re: Comments on Interim Tribal Consultation Policy
Dear Ms. Buckberg:
I am writing on behalf of the ____Tribe/Nation to provide comments on the Department of the Treasury’s (“Treasury”) interim Tribal Consultation Policy (“Interim Policy”), which was published in the Federal Register on December 3, 2014. We appreciate the opportunity to submit comments on the Interim Policy and hope our comments below are helpful to the Treasury in its ongoing effort to refine and improve its consultative practices.
Before turning to our more specific recommendations, we would first like to express our concern with the general direction and scope of the Interim Policy. Based on our review of the Interim Policy and, in particular, the definition of “Tribal Consultation,” there appears to be some confusion regarding the intent and goals of tribal consultation. In the Interim Policy, “Tribal Consultation” is defined, in part, as the “process for receiving input from Indian tribes regarding proposed Treasury actions on policy matters that have Tribal Implications” (emphasis added).
To clarify, tribal consultation requires much more than simply receiving input from tribal officials. Pursuant to Executive Order 13175, executive departments and agencies are charged with engaging in meaningful consultation with tribal officials and are responsible for conducting consultation in a manner that strengthens the government-to-government relationship between Indian tribes and the United States. In order for consultation to be meaningful, Treasury must do more than just “listen” to tribal input; it must take concrete steps to accommodate tribal interests and defer to tribal authority to the fullest extent possible. Furthermore, Treasury must engage with tribal governments early and often to ensure that the ultimate outcome reflects the views, needs, and objectives of both tribal and federal participants.
We therefore urge the Treasury to seize this opportunity to develop a consultation policy that not only facilitates the exchange of information between Treasury and tribal governments, but also encourages and invites a more collaborative and robust communications process premised on mutual trust, respect, and shared responsibility. With this context in mind, we turn now to our more specific comments on the Interim Policy.
I. Definitions – Tribal Consultation (or Consultation). As noted above, the Interim Policy would benefit from a more robust definition of “Tribal Consultation” that will provide meaningful guidance to Treasury personnel regarding the desired intent and purpose of consultation. At a minimum, the definition should incorporate the following key principles of consultation:
- Consultation is a process which enables tribes to participate in federal decisionmaking before an agency takes an action or commits to a decision to consider an action or policy with tribal implications.
- Consultation is not a single act of communication but rather a process involving multiple steps which culminate in an outcome that reflects the views, needs, and objectives of both federal and tribal participants.
- Consultation is triggered when Treasury considers “Policies that have Tribal Implications,” or when it considers proposals for regulations, rulemaking, legislation, guidance, policy formulation or actions that may have a substantial direct effect on one or more tribes, or the relationship between tribes and the federal government, or on the distribution of power and responsibilities between the tribes and the federal government.
II. Definitions -- Policies that have Tribal Implications. We have serious concerns with this definition, which specifically excludes “policy matters of general applicability that may have an impact on Indian Tribes or their members.” Executive Order 13175 requires consultation on the development of regulatory policies that have tribal implications and makes no distinction as to whether the policies are of general or specific applicability. Furthermore, without more guidance, it is unclear which matters are intended to fall within this exclusion. We recommend removing the above-quoted language so that the definition more closely reflects the spirit and intent of Executive Order 13175.
II.A Guiding Principles. In support of the language in Section II.A recognizing “the right of Indian Tribes to self-government, and their inherent sovereign powers over their members and territories,” we recommend including an additional statement that Treasury will approach consultation with due respect for, and deference to, such sovereign rights, power, and authority of tribal governments. The inclusion of such statement will not only send a positive message to Indian Country, but also provide critical guidance to Treasury personnel in applying the Interim Policy to specific issues and matters.
II.D Guiding Principles. We have concerns with Section II.D, which states Treasury’s “commit[ment] to developing and issuing regulations and guidance in a timely manner.” While we understand the importance of timing in the development and promulgation of regulations, we wish to emphasize that for purposes of this Interim Policy, the timing of the process of consultation is equally, if not more, important. For consultation to be effective, Treasury must allow sufficient time and process for tribal governments to adequately review and analyze the underlying issues, articulate their own proposals and rationales, and engage in discussions with other affected tribal governments. We recommend adding language clarifying that Treasury is committed to ensuring that tribal governments are given sufficient time to review and analyze the matters under consultation and provide meaningful input.
III.A Statement of Policy. The first sentence of the Statement of Policy provides that “Treasury will endeavor to consult with Tribal Governments prior to issuing regulations, published guidance, and Policies with Tribal Implications.” We believe a stronger and more definitive statement of Treasury’s obligations is warranted here. To begin, this Statement of Policy should clarify that the true starting point of consultation is the point at which Treasury identifies the underlying problems, issues, or matters of concern and before a proposed solution or action is developed.
The importance of early engagement cannot be overstated. Tribal participation in the early decisionmaking stages is important because it provides Treasury with information as to whether an action is necessary in the first instance and how tribal interests will be affected. Furthermore, joint issue identification enables Treasury and tribal governments to work together and to consider the full range of alternatives, including a “no action” alternative.
The tribal consultation process should therefore be triggered whenever Treasury is considering any proposal for action that may affect the interests of one or more tribe(s). Among other benefits, tribal input at this early stage will help delay a rush to judgment on the necessity of a proposed action or decision and ensure sufficient time to consider alternative solutions if the problem is, in fact, deemed to warrant action by a consensus of tribal representatives.
In light of the foregoing, we recommend replacing the first sentence with the following statement:
“The consultation process is triggered whenever Treasury is considering, formulating, or implementing proposals for regulations, rulemaking, legislation, guidance, policy formulation or actions that may have a substantial effect on one or more Tribes; on the relationship between Tribes and the federal government; or on the distribution of power and responsibilities between the Tribes and the federal government.”
Furthermore, we believe the “core objectives” identified in this Section should be expanded to include the following:
- Engagement on a government-to-government basis with due regard, respect, and deference for the sovereign powers, rights, and authority of tribal governments.
- Early participation of tribal governments before Treasury commits to a decision to consider an action or policy with tribal implications.
- Avoidance of a preconceived “agency-favored” approach and consideration of alternative approaches identified through consultation.
- Accommodation of tribal interests and deference to tribal authority and action to the fullest extent possible.
- Development of an outcome that is informed by the views of tribal governments and reflects, to the fullest extent possible, a consensus result.
III.B Role of the POCTC. Under this Section, the role of the POCTC is limited to assisting and benefiting Treasury bureaus and offices only. Notably absent is a discussion of the POCTC’s role and responsibilities in relation to tribal governments and officials. In order to enhance transparency and accountability, it is important that the Interim Policy establish a point of contact who will be in regular communications with tribal governments about consultation-related matters. As explained above, tribal consultation should be viewed as a joint issue-identifying and problem-solving endeavor. The POCTC can play an important role in facilitating the necessary communications on behalf of both the Department and tribal governments.
III.C Procedures for Evaluating and Initiating Consultation. As noted above, the true starting point of consultation is the point at which Treasury is identifying the underlying problems, issues, or matters of concern to determine whether a regulatory proposal is even necessary in the first instance. Thus, in Section III.C.1, rather than stating that “[p]rogram staff and legal counsel should assist in the identification of policy matters that are likely to require Tribal Consultation,” this Section should clarify that Treasury will also seek tribal participation early in the process when identifying issues and making decisions about the necessity of a proposed action.
In Section III.C.2., the Interim Policy should make clear that consultation will be conducted by Treasury officials who are not only “knowledgeable about the matters at hand,” but also equipped with a basic understanding of the responsibilities that arise from the unique legal relationship between the federal government and tribal governments. In addition, Treasury officials should endeavor to learn about tribal governmental processes in order to be more aware of and sensitive to tribal decision-making processes.
III.E Process for Tribal Officials to Request Consultation. We appreciate that the Interim Policy sets forth the procedures for tribal governments to initiate consultation with Treasury. To ensure that tribal requests are considered in a timely manner, we recommend including a reasonable timeframe, such as thirty days, within which Treasury will respond to a request for consultation.
In closing, we would like to thank you for this opportunity to provide comments on the Interim Policy. We respectfully seek your favorable consideration of our comments and look forward to working with Treasury on a government-to-government basis in this important endeavor.