On December 3, 2014, the Department of the Treasury issued a notice in the FEDERAL REGISTER announcing an “interim” tribal consultation policy, a copy of which is attached. Throughout the Obama Administration tribal leaders and tribal organizations have called upon the Department to establish and publish its tribal consultation policy. The effective date of the interim policy is December 3, 2014. The notice requests comments by April 2, 2015.
Treasury’s FEDERAL REGISTER notice announces an interim policy applicable to all Treasury offices engaging with tribal governments on matters with tribal implications. The notice states that the policy “will be updated periodically and refined as needed to reflect ongoing engagement and collaboration with Tribal partners.” The interim guidance defines “consultation” as the “direct, timely, and interactive process of receiving input from Indian Tribes regarding proposed Treasury actions on policy matters that have Tribal Implications.” It also defines “Policies that have Tribal Implications” to have the same meaning as used in Executive Order 13175 Consultation and Coordination
With Indian Tribal Governments. Such policies include “Treasury regulations, published guidance, or 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 the distribution of power and responsibilities between the Federal Government and Indian Tribes.”
Principles contained in the interim guidance recognize the right to self-government and the inherent sovereign powers of Indian tribes over their members and territories. Treasury’s policy also acknowledges that “the principle of consultation has its roots in the unique relationship between the federal government and the governments of Indian Tribes. This government-to-government relationship has a more than 200-year history, and is built on the foundation of the U.S. Constitution, treaties, legislation, executive action, and judicial rulings.”
Treasury’s policy statement provides that its consultation process should achieve several core objectives: “(1) Timely identification of matters that may warrant Tribal Consultation; (2) implementation of a process that is accessible and convenient to Tribal participants; and (3) development of meaningful, transparent, and accountable dialogue involving the appropriate participants.”
Meanwhile, the policy provides that enforcement actions or penalties for violations are not matters for consultation, even if multiple tribes are impacted. Two recent and significant issues for tribal consultation – the general welfare exclusion and per capita distributions of trust resources – arose as enforcement issues. With respect to each of those policies, Treasury initially refused to consult with tribes because the issues were perceived by the Department to be tax enforcement matters.
Please let us now if you would like our assistance in further analyzing the interim consultation policy and/or preparing comments for submission.
1 See our GM 00-128 of November 13, 2000 regarding Executive Order 13175. See our GM 09-141 of November 9, 2009 regarding the Presidential Memorandum on Tribal Consultation, which directs heads of executive departments and agencies on the implementation of Executive Order 13175.