[Federal Register Volume 75, Number 241 (Thursday, December 16, 2010)]
[Notices]
[Pages 78709-78714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-31465]
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
Public Comment on the Draft Tribal Consultation Policy
AGENCY: Administration for Children and Families, HHS.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: On November 5, 2009, President Obama signed the ``Memorandum
for the Heads of Executive Departments and Agencies on Tribal
Consultation.'' The President stated that his Administration is
committed to regular and meaningful consultation and collaboration with
tribal officials in policy decisions that have tribal implications,
including, as an initial step, through complete and consistent
implementation of Executive Order 13175.
The United States has a unique legal and political relationship
with Indian tribal governments, established through and confirmed by
the Constitution of the United States, treaties, statutes, executive
orders, and judicial decisions. In recognition of that special
relationship, pursuant to Executive Order 13175 of November 6, 2000,
executive departments and agencies are charged with engaging in regular
and meaningful consultation and collaboration with tribal officials in
the development of Federal policies that have tribal implications, and
are responsible for strengthening the government-to-government
relationship between the United States and Indian Tribes.
The Department of Health and Human Services (HHS) has taken its
responsibility to comply with Executive Order 13175 very seriously over
the past decade, including the initial implementation of a Department-
wide policy on tribal consultation and coordination in 1997, and
through multiple evaluations and revisions of that policy, most
recently in 2008. Many HHS agencies have already developed their own
agency-specific consultation policies that complement the Department-
wide efforts.
Since 2005, the Administration for Children and Families (ACF) has
been working under the guidance of the HHS policy issued in 2005, and
updated in 2008. Due to the various programs administered by ACF and
the many requests from Tribes for consultation for specific programs,
as well as specific program mandates for tribal consultation, ACF has
decided to create an ACF Tribal Consultation Policy to help ACF program
and regional offices better engage Federally recognized Indian Tribes
in the development or revision of policies, regulations, and proposed
legislation that impact American Indians. ACF firmly believes that to
create a good policy, ACF needs input from Tribes to ensure that ACF is
meeting tribal needs and to establish a partnership that can carry into
the future. ACF solicited membership for an ACF Tribal/Federal
Workgroup to develop the initial draft policy. The Workgroup met August
23 and 24, 2010, in Washington, DC, and again in Minneapolis,
Minnesota, on September 16 and 17, 2010. The draft was reviewed by
tribal leaders attending the ACF Tribal Consultation Session held in
Washington, DC on September 29, 2010, and the Workgroup met again to
address the comments heard at the Tribal Consultation Session. ACF will
convene the Tribal/Federal Workgroup again to review and address the
comments received from this publication.
DATES: The deadline for receipt of comments is January 31, 2011.
ADDRESSES: Comments made in response to this notice should be addressed
to Lillian Sparks, Commissioner, Administration for Native Americans,
370 L'Enfant Promenade, SW., Mail Stop: Aerospace 2--West, Washington,
DC 20447. Delays may occur in mail delivery to Federal offices;
therefore, a copy of comments should be faxed to (202) 690-7441.
Comments will be available for inspection by members of the public at
the Administration for Native Americans, 901 D Street, SW., Washington,
DC 20447.
FOR FURTHER INFORMATION CONTACT: Lillian Sparks, Commissioner,
Administration for Native Americans, (877) 922-9262.
[[Page 78710]]
SUPPLEMENTARY INFORMATION: The draft Tribal Consultation Policy is
provided below.
Dated: December 7, 2010.
David A. Hansell,
Acting Assistant Secretary for Children and Families.
U.S. Department of Health and Human Services
Administration for Children and Families
Tribal Consultation Policy
1. Introduction
On November 5, 2009, President Obama signed an Executive Memorandum
reaffirming the government-to-government relationship between Indian
Tribes and the Federal Government, and directing each executive
department and agency to consult with Tribal Governments prior to
taking actions that affect this population. The importance of
consultation with Indian Tribes was affirmed through Presidential
Memoranda in 1994, 2004, and 2009, and Executive Order 13175 in 2000.
The U.S. Department of Health and Human Services (HHS) and Indian
Tribes share the goal of eliminating health and human service
disparities of American Indians and Alaska Natives (AI/AN) and ensuring
that access to critical health and human services is maximized.
2. Purpose
The Administration for Children and Families, as an Operating
Division within the Department of Health and Human Services, hereby
establishes a consultation policy with Federally recognized Indian
Tribes in accordance with the HHS consultation policy. The purpose of
the ACF tribal consultation policy is to build meaningful relationships
with Federally recognized Tribes by engaging in open, continuous, and
meaningful consultation. True consultation leads to information
exchange, mutual understanding, and informed decision-making.
This ACF Tribal Consultation Policy document was developed based
upon:
Executive Order 13175, reaffirmed in 2009;
HHS Tribal Consultation Policy (established in 2005, and
amended in 2010);
Input from an ACF Tribal/Federal Workgroup convened to
develop the ACF Draft Consultation Policy;
Input from Tribes to ensure a consultation policy that
reflects the goals of all partners involved; and
Input of all of the programs and regions within ACF, many
of which already consult with American Indians and Alaska Natives (AI/
ANs).
3. Background
Since the formation of the Union, the United States (U.S.) has
recognized Indian Tribes as sovereign nations. A unique nation-to-
nation relationship exists between AI/AN Indian Tribes and the Federal
Government. This relationship is grounded in the U.S. Constitution,
numerous treaties, statutes, and executive orders, as well as
political, legal, moral, and ethical principles. This relationship is
derived from the political relationship that Tribes have with the
Federal Government and is not based upon race. The Federal Government
has enacted numerous regulations that establish and define a trust
relationship with Indian Tribes.
An integral element of this government-to-government relationship
is that consultation occurs with Indian Tribes. This policy applies to
all offices of ACF. Offices shall provide an opportunity for meaningful
consultation between Tribes and ACF in policy development, as set forth
in this policy. Executive Memorandum entitled ``Government-to-
Government Relationship with Tribal Governments'' reaffirmed this
government-to-government relationship with Indian Tribes on November 5,
2009. The implementation of this policy is in recognition of this
special relationship.
This special relationship is affirmed in statutes and various
Presidential Executive Orders including, but not limited to:
Older Americans Act, Public Law 89-73, as amended (42
U.S.C. 3001 et seq.);
Indian Self-Determination and Education Assistance Act,
Public Law 93-638, as amended (25 U.S.C. 450 et seq.);
Native American Programs Act, Public Law 93-644, as
amended (42 U.S.C. 2991 et seq.);
Indian Health Care Improvement Act, Public Law 94-437, as
amended (25 U.S.C. 1601 et seq.);
Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, Public Law 104-193 (42 U.S.C. 1305 et
seq.);
Head Start for School Readiness Act of 2007, Public Law
110-134, as amended (42 U.S.C. 9801 et seq.);
Patient Protection and Affordable Care Act (PPACA), Public
Law 111-148 (42 U.S.C. 18001 et seq.);
Fostering Connections to Success and Increasing Adoptions
Act of 2008, Public Law 110-351 (42 U.S.C. 1305 et seq.);
Presidential Executive Memorandum to the Heads of
Executive Departments dated April 29, 1994;
Presidential Executive Order 13175, Consultation and
Coordination with Indian Tribal Governments, November 6, 2000; and
Presidential Memorandum, Government-to-Government
Relationship with Tribal Governments, September 23, 2004 and November
5, 2009.
4. Tribal Sovereignty
This policy does not waive any Tribal Governmental rights,
including treaty rights, sovereign immunities or jurisdiction.
Additionally, this policy does not diminish any rights or protections
afforded other AI/AN persons or entities under Federal law.
Our Nation, under the law of the U.S. and in accordance with
treaties, statutes, Executive Orders, and judicial decisions has
recognized the right of Indian Tribes to self-government and self-
determination. Indian Tribes exercise inherent sovereign powers over
their members and territory. The U.S. continues to work with Indian
Tribes on a government-to-government basis to address issues concerning
tribal self-government, tribal trust resources, tribal treaties and
other rights.
The constitutional relationship among sovereign governments is
inherent in the very structure of the Constitution, and is formalized
in and protected by Article I, Section 8. Self-determination and
meaningful involvement for Indian Tribes in Federal decision-making
through consultation in matters that affect Indian Tribes have been
shown to result in improved program performance and positive outcomes
for tribal communities. The involvement of Indian Tribes in the
development of public health and human services policy allows for
locally relevant and culturally appropriate approaches to public
issues.
Tribal self-government has been demonstrated to improve and
perpetuate the government-to-government relationship and strengthen
tribal control over Federal funding that it receives, and its internal
program management.
5. Background on ACF
ACF provides national leadership and direction to plan, manage, and
coordinate the nationwide administration of comprehensive and
supportive programs for vulnerable and at-risk children and families.
ACF oversees and finances a broad range of
[[Page 78711]]
programs for children and families, including Native Americans, persons
with developmental disabilities, refugees, and legal immigrants, to
help them develop and grow toward a more independent, self-reliant
life. These programs, carried out by State, county, city, and Tribal
Governments, and public and private local agencies, are designed to
promote stability, economic security, responsibility, and self-
sufficiency.
ACF coordinates development and implementation of family-centered
strategies, policies, and linkages among its programs, and with other
Federal, tribal and State programs serving children and families. ACF's
programs assist families in financial crisis, emphasizing short-term
financial assistance, and education, training, and employment for the
long term. Its programs for children and youth focus on those children
and youth with special problems, including children of low-income
families, abused and neglected children, those in institutions or
requiring adoption or foster family services, runaway youth, children
with disabilities, migrant children, and Native American children. ACF
promotes the development of comprehensive and integrated community and
home-based modes of service delivery where possible. The following
offices are located in ACF:
[cir] Administration on Children, Youth, and Families (ACYF)
[squf] Children's Bureau (CB)
[squf] Family and Youth Services Bureau (FYSB)
[cir] Administration on Developmental Disabilities (ADD)
[cir] Administration for Native Americans (ANA)
[cir] Office of Administration
[cir] Office of Community Services (OCS)
[cir] Office of Child Care (OCC)
[cir] Office of Child Support Enforcement (OCSE)
[cir] Office of Family Assistance (OFA)
[squf] Temporary Assistance for Needy Families Bureau
(TANF)
[cir] Office of Head Start (OHS)
[cir] Office of Human Services Emergency Preparedness and Response
(OHSEPR)
[cir] Office of Legislative Affairs and Budget (OLAB)
[cir] Office of Planning, Research, and Evaluation (OPRE)
[cir] Office of Refugee Resettlement (ORR)
[cir] Office of Regional Operations (ORO)
[cir] President's Committee for People with Intellectual Disabilities
(PCPID), an advisory Committee to the President of the United States
and Health and Human Services Secretary.
In June 2010, ACF established the Native American Affairs Advisory
Council (NAAAC). This Council will function as an internal agency work
group to support the Assistant Secretary for Children and Families, the
Commissioner of ANA, and all ACF program and regional offices that
provide services to Native Americans. On behalf of the Assistant
Secretary, Administration for Children and Families, the Commissioner
of ANA is the Chair of the NAAAC and ANA is the lead office to
coordinate the activities. One of the responsibilities of the Council
is to facilitate the development of the ACF Tribal Consultation Policy,
in conjunction with the Office of the Assistant Secretary for Children
and Families.
The members of the Council are the ACF program and regional offices
that have Native American constituents or work with Native American
communities. These offices include the Administration on Children,
Youth, and Families (Children's Bureau, and the Family and Youth
Services Bureau); the Administration on Developmental Disabilities; the
Administration for Native Americans; the Office of Child Care; the
Office of Child Support Enforcement; the Office of Community Services;
the Office of Family Assistance (Tribal Temporary Assistance for Needy
Families [Tribal TANF]); the Office of Head Start; the Office of
Planning, Research, and Evaluation; and the Office of Regional
Operations. The following Regions will be represented: Region I, Region
II, Region IV, Region V, Region VI, Region VII, Region VIII, Region IX,
and Region X.
6. Consultation Principles
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, which leads to
mutual understanding and comprehension. Consultation is integral to a
deliberative process that results in effective collaboration and
informed decision-making with the ultimate goal of reaching consensus
on issues.
The ACF policy is to conduct timely communication and meaningful
consultation with Tribes wherein elected officials and other authorized
representatives of the Tribal Governments have an opportunity to
provide meaningful and timely input prior to a legislative proposal,
new rule adoption, or other policy change that ACF determines may
significantly affect Indian Tribes, or where one or more Tribes has
communicated that such action will significantly affect one or more
Indian Tribes. An action is considered to significantly affect Tribes
if it has substantial direct effects on one or more Indian Tribes, on
the relationship between the Federal Government and Indian Tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian Tribes.
7. Consultation Parties
Consultation parties are:
A. The ACF Assistant Secretary, ACF Deputy Assistant Secretaries,
ACF Central Office Principals, or their designee, and
B. Tribal President, Tribal Chair, or Tribal Governor, or an
elected or appointed Tribal Leader, or their authorized
representative(s).
Each party will identify their authorized representatives with
delegated authorities to negotiate on their behalf.
8. Consultation Process
A. Consultation is initiated when either the ACF or a Tribe(s)
makes a written request for a consultation to discuss issue(s)
concerning a legislative proposal, new rule adoption, or other policy
change that ACF determines may significantly affect the Tribe(s).
B. A consultation request by a Tribe should:
1. Identify the subject issue(s) for resolution.
2. Identify the applicable program(s), policy, rule, regulation,
statute, and authorizing legislation.
3. Identify the related concerns such as State-tribal relations,
related programs, complexity, time constraints, funding and budget
implications.
4. Identify the affected and potentially affected Indian Tribe(s).
ACF will acknowledge receipt of the tribal consultation request within
14 calendar days after receipt of the letter.
C. Proper notice of the tribal consultation and the level of
consultation, as determined by ACF, shall be communicated to all
affected and all potentially affected Indian Tribes within 45 calendar
days after receipt of the tribal request. Appropriate forms of notice
include a ``Dear Tribal Leader Letter'' signed by the Assistant
Secretary, broadcast e-mail, Federal Register (FR), and other outlets.
D. The following are Levels of Consultation: Consultation will
occur through a combination of one or more levels of consultation,
defined below, and will include additional actions and participants as
determined by the parties.
[[Page 78712]]
1. Meeting(s): One or more meetings with affected and potentially
affected Indian Tribes to discuss all pertinent issues related to the
legislative proposal, new rule adoption, or other policy change that
ACF determines may significantly affect the Tribe(s) using a single
purpose meeting, or a national or regional forum, if appropriate, when
the consultation is determined to include all Tribes. Meetings can be
face-to-face or by teleconference call.
2. Correspondence: Written communications exchanged between ACF and
the Indian Tribe(s) that provide affected and potentially affected
Indian Tribes an opportunity to identify concerns, potential impacts,
proposed alternatives or flexibilities, and provide ACF with the
opportunity to identify resources and other considerations relevant to
the issue(s) raised. All correspondence will identify the manner in
which tribal comments will be solicited.
3. Federal Register: When one or more meetings are not practicable,
notices in the Federal Register will represent the level of
consultation to solicit comment from Tribes about concerns, potential
impacts, proposed alternatives or flexibilities. Such notices will
include clear and explicit instructions for the submission of comments
that provide adequate time for tribal responses.
E. Reporting of Outcome: All national and regional consultation
meetings and recommended actions shall be recorded and made available
to Indian Tribes.
ACF program offices will provide a detailed report on their
consultation sessions, which summarizes the discussions, specific
recommendations, and responses and solicits tribal feedback on the
consultation process, within forty-five (45) calendar days of the
conclusion of the consultation process. The ACF report will be
available on the program offices' Web sites.
Once the consultation process is complete and a proposed policy is
approved and issued, the final policy must be broadly distributed to
all Indian Tribes and it will be independently posted on the ACF
webpage and also linked to several appropriate tribal and inter-tribal
organization Web sites.
F. Meaningful Outcomes: The consultation process and activities
conducted within the scope of the ACF policy should result in a
meaningful outcome for both ACF and Tribes. Before any final policy
decisions are adopted, the proposed outcome of a consultation shall be
widely publicized and circulated for review and comment to affected
Indian Tribes, inter-tribal organizations, and within HHS.
Good faith implementation of ACF programs and a cooperative working
relationship with Tribes in support of ACF programs is the primary
meaningful outcome. ACF will work with States to emphasize the
importance of providing progam services and funding on an equitable
basis to tribal members.
ACF shall facilitate meaningful consultations and outcomes between
Tribe(s) and one or more States administering ACF programs, shall
measure State performance in serving tribal populations, report the
outcome of its efforts to affected Tribes, and shall make a good faith
effort to ensure all parties fully comply with ACF program
requirements.
G. Waivers and Elevation of Issue(s): The intent of this policy is
to provide increased ability to address issues impacting Indian Tribes.
ACF will, to the extent practicable and permitted by law, utilize
flexible approaches to enable Tribes to achieve established ACF program
objectives, including consideration of waivers of statutory and
regulatory requirements and other alternatives that preserve the
prerogatives and authority of Indian Tribes.
In cases where a Tribe(s) is not satisfied with the resolution of
an issue or issues after consultation with the program office, a
Tribe(s), consistent with the government-to-government relationship,
may elevate an issue of importance to the Assistant Secretary of ACF.
If the Tribe is still not satisfied with the resolution of an issue
after consultation with the Assistant Secretary of ACF, a Tribe(s),
consistent with the government-to-government relationship, may elevate
an issue of importance to the Department, through the Office of
Intergovernmental Affairs (IGA), for decision.
9. ACF Consultation and Communication Responsibilities
ACF will conduct an annual agency-wide tribal consultation each
year, in addition to the tribal consultations required by several ACF
program offices. The following will guide ACF's coordination of the
various sessions. The NAAAC will work with the program offices to
coordinate ACF required consultations, on required topics and in
required regions, to maximize the time and resources of Indian Tribes
and program offices.
A. ACF Annual Tribal Consultation Session
1. ACF will hold, at a minimum, an agency-wide annual tribal
consultation session to discuss ACF programs and policies impacting
tribal programs. ANA, working through NAAAC, will be the lead agency to
coordinate the annual tribal consultation session.
2. Every ACF program office Principal, or their designee, will be
required to participate in the annual ACF tribal consultation.
3. NAAAC will coordinate with the program offices to prepare and
disseminate a written report within forty-five (45) calendar days of
the annual ACF tribal consultation.
4. ACF will post this report on its Web site.
5. The annual ACF tribal consultation session will not supplant any
tribal consultation sessions that are required by law to be conducted
by ACF program offices.
B. Special Statutory Consultation Requirements
1. The following ACF Offices have programs that require
consultation with Indian Tribes in accordance with their authorizing
statutes.
Office of Head Start
Children's Bureau
Family and Youth Services Bureau
2. ACF program offices will conduct tribal consultation sessions
that are required by law, including in conjunction with the Annual ACF
Tribal Consultation Session.
3. Individual Program Consultation Responsibilities
(a) Each individual program office will meet with Indian Tribes and
AI/AN grantees regarding programmatic concerns at the request of the
Indian Tribe or AI/AN grantee.
(b) An official staff contact will be designated as responsible for
the initial coordination and facilitation of the program office
interaction with Tribes and Native American organizations and to serve
as the program single point of contact for interaction with offices and
workgroups within HHS on AI/AN issues.
(c) ACF program offices will acknowledge requests for consultation
within fourteen (14) calendar days of receipt of the request.
(d) ACF program offices will acknowledge and report on unresolved
issues with the Tribe in a timely manner. ACF program offices will
acknowledge issues within fourteen (14) calendar days after the
consultation.
(e) Feedback will be provided by ACF program offices to Tribes on
the
[[Page 78713]]
resolution of issues for which consultation has been requested within
forty-five (45) calendar days of the consultation.
(f) ACF program offices will ensure intra-agency coordination with
Regional Offices to facilitate communication and outreach on
consultations held in the Region. Regional Offices will facilitate
State participation as appropriate.
(g) ACF program offices will provide assistance to States in their
efforts to develop policies and plans to ensure consultation with
Indian Tribes.
(h) ACF program offices will provide a written report on the
consultations, which summarizes the discussions, recommendations, and
responses, within forty-five (45) calendar days of the last
consultation.
4. HHS Tribal Consultations
(a) ACF will participate in the Annual Budget Consultation Session
and Annual Regional Tribal Consultations.
10. ACF Performance and Accountability
A. Implementation of this policy shall be made part of the Annual
Performance Plan for ACF Senior Management as a critical performance
element, in those offices where there are specific tribal activities.
B. ACF program offices will design indicators to ensure
accountability among program managers, central office and regional
offices staff, and various partners in carrying out the HHS and ACF
tribal consultation policies.
C. ACF will ensure that all personnel working with Tribes receive
appropriate training on consultation, this policy, and working with
Tribal Governments.
D. As part of the Department's annual measurement of the level of
satisfaction of Indian Tribes with the consultation process and the
activities conducted under this policy, Indian Tribes' satisfaction
with ACF will be recorded and evaluated to determine whether the
intended results were achieved and to solicit recommendations for
improvement from Tribes.
11. ACF-Tribal Conflict Resolution
In compliance with the HHS Consultation Policy, each Operating
Division shall develop a conflict resolution process. The following
shall serve as the ACF tribal conflict resolution process until further
defined. Should an impasse arise between ACF and a Tribe(s) concerning
ACF compliance with consultation policy, a Tribe may invoke the
conflict resolution process by filing a written notice of conflict
resolution. Using the timelines under Section 8B, ACF will initiate the
conflict resolution process. As determined by the Assistant Secretary,
authorized tribal representatives shall meet with the Assistant
Secretary for Children and Families, and/or a Deputy Assistant
Secretary, and/or the Commissioner for the Administration for Native
Americans and/or the ACF Regional Administrator(s) for the regional
offices that provide services to the affected Tribes. The goal is to
accomplish the following:
A. Clarify all aspects of the issue(s) at an impasse;
B. Explore the alternative position(s) available to resolve the
impasse;
C. Establish language about the issue(s) that the parties can
accept on the record;
D. Create acceptance of recommended actions; and
E. Facilitate coordination of resolution(s) for parties.
12. Workgroups and Advisory Committees
A. To maximize the expertise and knowledge of individuals working
in tribal communities, ACF may convene Tribal/Federal Workgroups (TFWG)
to develop and discuss agency-wide policies that impact Indian Tribes,
prior to formal tribal consultation sessions on the policies.
B. The TFWG will work in accordance with the HHS policy on tribal
workgroups and will follow procedures to ensure compliance with the
Federal Advisory Committee Act (FACA). Groups with membership composed
of Federal, State employees, or elected officials of a Federally
recognized Indian Tribe are exempt from FACA.
C. ACF retains the right to meet with various representatives of
organizations on an individual basis.
D. For policies that impact more than Federally recognized Indian
Tribes, ACF will develop forums to provide opportunities for input and
dialogue for State-recognized Tribes; Native American organizations,
including Native Hawaiians and Native American Pacific Islanders; urban
Indian centers; tribally controlled community colleges and
universities; Alaska Region Corporations; and others as defined in
program office guidance.
E. Program offices may still convene their individual working
groups to work on program specific policies. Program offices will
ensure that these working groups operate within the FACA guidelines and
requirements.
13. Definitions
A. Agency--Any authority of the United States that is an ``agency''
under 44 U.S.C. 3502(1) other than those considered to be independent
regulatory agencies, as defined in 44 U.S.C. 3502(5).
B. Communication--The exchange of ideas, messages, or information
by speech, signals, writing, or other means.
C. Consortia of Tribes--Two or more Federally recognized Indian
Tribes.
D. Consultation--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 with the ultimate goal of reaching consensus
on issues.
E. Coordination and Collaboration--Working and communicating
together in a meaningful government-to-government effort to create a
positive outcome.
F. Deliberative Process Privilege--Privilege exempting the
government from disclosure of government-agency materials containing
opinions, recommendations, and other communications that are part of
the decision-making process within the agency.
G. Executive Order--An order issued by the government's executive
on the basis of authority specifically granted to the Executive Branch
(as by the U.S. Constitution or a Congressional Act).
H. Federally Recognized Tribal Governments--Indian Tribes with whom
the Federal Government maintains an official government-to-government
relationship; usually established by a Federal treaty, statute,
executive order, court order, or a Federal Administrative Action. The
Bureau of Indian Affairs (BIA) maintains and regularly publishes the
list of Federally recognized Indian Tribes.
I. Indian Organization--Any group, association, partnership,
corporation, or legal entity owned or controlled by Indians, or a
majority whose members are Indians.
J. Indian Tribe--Any Indian Tribe, band, nation, or other organized
group or community, including any Alaska Native village, or regional or
village corporation as defined in or established pursuant to the Alaska
Native Claims Settlement Act (85 Stat. 688) [43 U.S.C. 1601 et seq.],
which is recognized as eligible for the special programs and services
provided by the United States to Indians because of their status as
Indians [25 U.S.C. Sec 450b(e)].
K. Indian--A person who is a member of an Indian Tribe [25 U.S.C.
450b(d)]. Throughout this policy, Indian is
[[Page 78714]]
synonymous with American Indian/Alaska Native.
L. Native American (NA)--Broadly describes the people considered
indigenous to North America.
M. Native American Affairs Advisory Council (NAAAC)--An internal
agency work group to support the Assistant Secretary for Children and
Families, the Commissioner of the Administration for Native Americans,
and all ACF program and regional offices that provide services to
Native Americans.
N. Native Hawaiian--Any individual whose ancestors were natives of
the area, which consists of the Hawaiian Islands prior to 1778 (42
U.S.C. 3057k).
O. Inter-Tribal Organization--A nongovernmental body organized and
operated to represent the interests of a group of individuals
considered indigenous to North American countries. Organizations that
represent the interests of individuals do not fall under the
intergovernmental committee exemption to FACA found in 2 U.S.C. Sec
1534. Therefore, the Department is required to adhere to FACA if
representatives of those organizations are included on advisory
committees or workgroups.
P. Non-Recognized Tribe--Any Tribe with whom the Federal Government
does not maintain a government-to-government relationship, and to which
the Federal Government does not recognize a trust responsibility.
Q. Policies that have Tribal Implications--Refers to regulations,
legislation, and other policy statements or actions that have
substantial direct effects on one or more Indian Tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes.
R. Public Participation--When the public is notified of a proposed
or actual action, and is provided meaningful opportunities to
participate in the policy development process.
S. Reservation--Lands reserved with the Federal Government for
tribal use and are usually held in trust by the Federal Government or
within certain defined boundaries.
T. Self Government--Government in which the people who are most
directly affected by the decisions make decisions.
U. Sovereignty--The ultimate source of political power from which
all specific political powers are derived.
V. State Recognized Tribes--Tribes that maintain a special
relationship with the State government and whose lands and rights are
usually recognized by the State. State recognized Tribes may or may not
be Federally recognized.
W. Substantial Direct Compliance Costs--Those costs incurred
directly from implementation of changes necessary to meet the
requirements of a Federal regulation. Because of the large variation in
Tribes, ``substantial costs'' is also variable by Indian Tribe. Each
Indian Tribe and the Secretary shall mutually determine the level of
costs that represent ``substantial costs'' in the context of the Indian
Tribe's resource base.
X. To the Extent Practicable and Permitted by Law--Refers to
situations where the opportunity for consultation is limited because of
constraints of time, budget, legal authority, etc.
Y. Treaty--A legally binding and written agreement that affirms the
government-to-government relationship between two or more nations.
Z. Tribal Government--An American Indian or Alaska Native Tribe,
band, nation, pueblo, village or community that the Secretary of the
Interior acknowledges to exist as an Indian Tribe pursuant to the
Federally recognized Indian Tribe List Act of 1994, (25 U.S.C. 479a).
AA. Tribal Officials--Elected or duly appointed officials of Indian
Tribes or authorized inter-tribal organizations.
BB. Tribal Organization--The recognized governing body of any
Indian Tribe; any legally established organization of American Indians
and Alaska Natives which is controlled, sanctioned, or chartered by
such governing body or which is democratically elected by the adult
members of the community to be served by such organization and which
includes the maximum participation of Indian Tribe members in all
phases of its activities (25 U.S.C. 450b).
CC. Tribal Resolution--A formal expression of the opinion or will
of an official tribal governing body which is adopted by vote of the
tribal governing body.
DD. Tribal Self-Governance--The governmental actions of Tribes
exercising self-government and self-determination.
14. Acronyms
ACF Administration for Children and Families
AI/AN American Indian/Alaska Native
AI/AN/NA American Indian/Alaska Native/Native American
ANA Administration for Native Americans
BIA Bureau of Indian Affairs
Division Staff Division and/or Operating Division
EO Executive Order
FACA Federal Advisory Committee Act
FR Federal Register
HHS U.S. Department of Health and Human Services
NAAAC Native American Affairs Advisory Council
OPDIV Operating Divisions of HHS
SPOC Single Point of Contact
TFWG Tribal/Federal Workgroup
U.S. United States
U.S.C. United States Code
15. Policy Review
ACF shall review, and if necessary revise, its Tribal Consultation
Policy no less than every 2 years. Should ACF determine that the policy
requires revision, the Tribal/Federal Workgroup will be convened to
develop the revisions.
16. Retention of Executive Branch Authorities
Nothing in this policy waives the Government's deliberative process
privilege, including when the Department is specifically requested by
Members of Congress to respond to or report on proposed legislation.
The development of such responses and related policy documents is a
part of the deliberative process by the Executive Branch and should
remain confidential.
Nothing in the Policy creates a right of action against the
Department for failure to comply with this Policy nor creates any
right, substantive or procedural, enforceable at law by a party against
the United States, its agencies, or any individual.
17. Effective Date
This policy is effective on the date of signature by the Assistant
Secretary for Children and Families and shall apply to all ACF Program
Offices.
[FR Doc. 2010-31465 Filed 12-15-10; 8:45 am]
BILLING CODE 4184-34-P