Department
of Housing and Urban Development Tribal Government-to-Government
Consultation Policy
I. Introduction
A. The United States
Government has a unique relationship with American Indian governments as
set forth in the Constitution of the United States, treaties, statutes, court
decisions, and executive orders and memoranda.
B. On April 29, 1994, a Presidential Memorandum was issued reaffirming the
federal government's commitment to operate within a
government-to-government relationship with federally recognized American
Indian and Alaska Native tribes, and to advance self-governance for such
tribes. The Presidential Memorandum directs each executive department and
agency, to the greatest extent practicable and to the extent permitted by
law, to consult with tribal governments prior to taking actions that have
substantial direct effects on federally recognized tribal governments. In
order to ensure that the rights of sovereign tribal governments are fully
respected, all such consultations are to be open and candid so that tribal
governments may evaluate for themselves the potential impact of relevant
proposals.
On May 14, 1998, the
President issued Executive Order 13084, "Consultation and Coordination
with Indian Tribal Governments," which was revoked and superseded on
November 6, 2000, by the identically titled Executive Order 13175, which
sets forth guidelines for all federal agencies to (1) establish regular and
meaningful consultation and collaboration with Indian tribal officials in the
development of federal policies that have tribal implications; (2)
strengthen the United States government-to-government relationships with
Indian tribes; and (3) reduce the imposition of unfunded mandates upon
Indian tribes.
C. This consultation
policy applies to all HUD program that have
substantial direct effects on federally recognized Indian tribal
governments.
In formulating or
implementing such policies, HUD will be guided by the fundamental
principles set forth in section 2 of Executive Order 13175, to the extent
applicable to HUD programs. Section 2 of the Executive Order provides as
follows:
Sec. 2. Fundamental
Principles. In formulating or implementing policies that have tribal
implications, agencies shall be guided by the following fundamental
principles:
(a) The United States has a unique legal
relationship with Indian tribal governments as set forth in the
Constitution of the United States, treaties, statutes,
Executive Orders, and court decisions. Since the formation of the Union, the United States has recognized Indian tribes
as domestic dependent nations under its protection. The Federal government
has enacted numerous statutes and promulgated numerous regulations that
establish and define a trust relationship with Indian tribes.
(b) Our Nation, under
the law of the United States, in accordance with treaties,
statutes, Executive Orders, and judicial decisions, has recognized the
right of Indian tribes to self-government. As domestic dependent nations,
Indian tribes exercise inherent sovereign powers over their members and
territory. The United States continues to work with Indian
tribes on a government-to-government basis to address issues concerning
Indian tribal self-government, tribal trust resources, and Indian tribal
treaty and other rights.
(c) The United States recognizes the right of
Indian tribes to self- government and supports tribal sovereignty and
self-determination.
II.
Definitions
A.
"Consultation" means the direct and interactive (i.e.,
collaborative) involvement of tribes in the development of regulatory
policies on matters that have tribal implications. Consultation is the
active, affirmative process of (1) identifying and seeking input from
appropriate Native American governing bodies, community groups and
individuals; and (2) considering their interest as a necessary and integral
part of HUD's decision-making process. This definition adds to any
statutorily mandated notification procedures. The goal of notification is
to provide an opportunity for comment; however, with consultation
procedures, the burden is on the federal agency to show that it has made a
good faith effort to elicit feedback.
B. "Exigent
situation" means an unforeseen combination of circumstances or the
resulting state that calls for immediate action in order to preserve tribal
resources, rights, interests, or federal funding.
C. "Indian
tribe" means an 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.
III.
Principles
A. HUD acknowledges
the unique relationship between the federal government and Indian tribes.
B. HUD recognizes and
commits to a government-to-government relationship with
Federally-recognized tribes.
C. HUD recognizes
tribes as the appropriate non-federal parties for making their policy
decisions and managing programs at the local level for their constituents.
D. HUD shall take
appropriate steps to remove existing legal and programmatic impediments to
working directly and effectively with tribes on housing and community
development programs administered by HUD.
E. HUD shall
encourage states and local governments to work with and cooperate with
tribes to resolve problems of mutual concern.
F. HUD shall work
with other federal departments and agencies to enlist their interest and
support in cooperative efforts to assist tribes to accomplish their goals
within the context of all HUD programs.
G. HUD shall be
guided by these policy principles in its planning and management
activities, including its budget, operating guidance, legislative
initiatives, management accountability system and ongoing policy and
regulation development processes for all programs affecting tribes.
IV.
Tribal Coordination, Collaboration and Consultation
A. Tribal
Coordination, Collaboration and Consultation applies when any proposed
policies, programs or actions are identified by HUD as having a substantial
direct effect on an Indian tribe. The Office of Native American Programs
(ONAP), within the Office of Public and Indian Housing, may serve as the
lead Departmental office for the implementation of this policy, and is the
principal point of contact for consultation with tribes on all HUD
programs.
B. Procedures and
Methods for Implementation -Tribal, Regional and National Forums.
1. Based on a
government-to-government relationship and in recognition of the uniqueness
of each tribe, a primary focus for consultation activities is with
individual tribal governments. The use of tribal organizations/committees
will be in coordination with, and not to the exclusion of, consultation
with individual tribal governments. When proposed federal government
policies, programs or actions are determined by HUD as having tribal
implications, HUD will notify the affected tribe(s) and take affirmative
steps to consult tribe(s) or its (their) designee. Tribes at any time may
exercise their right to request consultation with HUD.
2. Tribes are
encouraged to exercise their option to convene regional tribal meetings to
identify and address issues. Tribes may regional meetings with HUD
representatives to address issues relevant to HUD policies, regulations,
and statutes. At least one national tribal consultation meeting will be
held by HUD each year. To reduce costs and conserve extent feasible, tribes
and HUD will coordinate consultation meetings to be regularly scheduled
meetings such as multi-agency and association meetings.
C. Tribal Advisory
Organizations/Committees. The principal focus for consultation activities
of HUD is with individual tribal governments. However, it is frequently
necessary that HUD have organizations/committees in place from which to
solicit tribal advice and recommendations, and to involve tribes in decision-making
and policy development. In consultation with elected tribal governments,
HUD recognizes tribal advisory organizations/committees. Consultation shall
be conducted as follows:
1. Headquarters. HUD
will consult with existing national organizations.
2. Area Offices. Each
Area ONAP Administrator, in consultation with tribal governments, will
consult with organizations/committees and/or representatives of tribal
governments served by the Area ONAP. The tribal organizations/committees
and/or representatives will provide advice and consultation to the Area
ONAP Administrator and staff. Meetings with the Area ONAP shall occur at
least annually, or more frequently when there is a
need.
3. National/Area
Coordination. To promote coordination in addressing issues arising from
tribal consultation events at both the national and local level, a summary
record of the comments made during national and area consultations will be
made available to tribes.
D. Joint
Federal/Tribal Work Groups or Task Forces. It may become necessary for HUD,
to establish or select a work group or task force to develop
recommendations on certain issues. The work group or task force may conduct
its activities through conventional {e.g., telephone and mail), as well as
innovative {e.g., e-mail and video conferences) means of communication.
1. Membership and
Meeting Notices.
a. Tribal
representation should be consistent with the established standard of
geographically diverse small, medium and large tribes, whenever possible.
b. Meetings will be
posted on the Internet and will be open to the public. In addition to
Internet posting, HUD may also announce meetings through FAX, letter,
e-mail, publication in the Federal Register, or other appropriate means.
2. Participation.
a. Attendance: Work
group members shall make good-faith attempts to attend all meetings. They
may be accompanied by other individuals to advise them as they deem
necessary.
b. Appointment of
Alternates: Alternate work group members may be appointed by written
notification signed by the member. Such alternates shall possess the
authority of the work group member to make decisions on their behalf if
such authority is so delegated to them in writing.
3. Work Group
Protocols that may be established.
a. Roles of the work
group members.
b. Process for
decision-making.
c. Process for
creating written products and other decisional documents.
d. Other items as
deemed necessary by the work group.
4. Work Group Final
Products and Recommendations. All final recommendations will be given
serious consideration by HUD. Whenever possible, all work group products
should be circulated to tribal leaders for review and comment.
V.
Rulemaking
On issues relating to
tribal self-government, tribal trust resources, or treaty and other rights,
HUD will explore, and where appropriate, use consensual mechanisms for
developing regulations, including negotiated rulemaking. HUD may establish
a standing committee, consisting of representatives of tribal governments,
to consult on the appropriateness of using negotiated rulemaking procedures
on particular matters. The procedures governing such a standing committee
would be established through the mutual agreement of HUD and tribal
governments.
VI.
Unfunded Mandates
To the extent
practicable and permitted by law, HUD shall not promulgate any regulation
that is not required by statute, that has tribal implications, and that
imposes substantial direct compliance costs on such communities, unless:
1. Funds necessary to
pay the direct costs incurred by the Indian tribal government in complying
with the regulation are provided by the federal government; or
2. HUD, prior to the
formal promulgation of the regulation:
a. Consulted with
tribal officials early in the process of developing the proposed
regulation;
b. In a separately
identified portion of the preamble to the regulation as it is to be issued
in the Federal Register, provides to the Director of the Office of
Management and Budget a description of the extent of HUD's prior
consultation with representatives of affected Indian tribal governments, a
summary of the nature of their concerns and the agency's position
supporting the need to issue the regulation; and
c. Makes available to the
Director of the Office of Management and Budget any written communications
submitted to HUD by such Indian tribal governments.
VII.
Increasing Flexibility for Indian Waivers
HUD shall review the
processes under which Indian tribal governments apply for waivers of
statutory and regulatory requirements and take appropriate steps to
streamline those processes.
1. HUD shall, to the
extent practicable and permitted by law, consider any application by an
Indian tribal government for a waiver of statutory or regulatory
requirements in connection with any program administered by HUD with a
general view toward increasing opportunities for utilizing flexible policy
approaches at the Indian tribal level in cases in which the proposed waiver
is consistent with the applicable federal policy objectives and is
otherwise appropriate.
2. HUD shall, to the
extent practicable and permitted by law, render a decision upon a complete
application for a waiver within 120 days of receipt of such application by
HUD. HUD shall provide the applicant with timely written notice of the
decision and, if the application for a waiver is not granted,
the reasons for such denial.
3. This section
applies only to statutory or regulatory requirements that are discretionary
and subject to waiver by HUD. Applicable civil rights statutes and
regulations are not subject to waiver.
VIII.
Implementation
1. All committees
shall be chaired by at least one tribal and one HUD representative.
2. Time Frames. Time
frames for consultation outreach will depend on the need to act quickly.
Suggested guidelines are not less than 60 days for significant new matters
of national scale, 30 days for routine proposed actions, and 2-3 weeks with
expanded tribal outreach efforts for proposed actions which must be
"fast tracked" to respond to critical deadlines. These time
frames may be compressed in exigent situations.
3. Methods of
Communication. The following are examples of communication means by which
consultation can be accomplished. The method(s) of communication used will
be determined by the significance of the consultation matter, the need to
act quickly, and other relevant factors: Internet; broadcast fax; U.S.
Postal Service; telephone-conference calls; multimedia; direct contact; and
formal meetings.
4. Reporting
Mechanisms. In all cases where a tribe or tribes have been involved in the
consultation process, the tribe(s) shall be notified of the HUD decision by
one or more of the communication method(s) identified above. This
notification shall specifically include a discussion of the basis for the
HUD decision, including public comments received, relationship to the
concerns raised in consultation, and any avenues available for further
discussion, protest or appeal of the decisions.
5. Internal HUD
policies and procedures are excluded from this policy.
IX.
Applicability of the Federal Advisory Committee Act
The provisions of the
Federal Advisory Committee Act (5 U.S.C. App.)(FACA) do not apply to
consultations undertaken pursuant to this policy. In accordance with
section 204(b) of the Unfunded Mandates Reform Act of 1995 (Pub.L. 104-4, approved March 22, 1995), FACA is not
applicable to consultations between the Federal government and elected
officers of Indian tribal governments (or their designated employees with
authority to act on their behalf). As the Office of Management and Budget
stated in its guidelines implementing section 204(b):
This exemption
applies to meetings between Federal officials and employees and ...tribal
governments acting through their elected officers, officials, employees,
and Washington representatives, at which 'views, information, or advice are
exchanged concerning the implementation of intergovernmental
responsibilities or administration, including those that arise explicitly
or implicitly under statute, regulation, or Executive Order. The scope of
meetings covered by this exemption should be construed broadly to include
meetings called for any purpose relating to intergovernmental
responsibilities or administration. Such meetings include, but are not
limited to, meetings called for the purpose of seeking consensus,
exchanging views, information, advice, and/or recommendations; or
facilitating any other interaction relating to intergovernmental responsibilities
or administration. (OMB Memorandum 95-20 (September 21, 1995), pp. 6-7,
published at 60 FR 50651, 50653 (September 29, 1995)).
X.
General Provisions
This document has
been adopted for the purpose of enhancing government-to-government
relationships, communications, and mutual cooperation between the U.S.
Department of Housing and Urban Development and tribes and is not intended
to, and does not, create any right to administrative or judicial review, or
any other right or benefit or trust responsibility, substantive or
procedural, enforceable by a party against the United States, its agencies
or instrumentalities, its officers or employees, or any other persons. This
document is effective on the date it is signed.
Dated:
06/28/2001
/s/
Mel Martinez, Secretary
[FR-4580-N-0l]
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