these entities; rather, these organizations represent the interests of tribes when authorized
by those tribes.

. Indian Tribe — 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.

12. ICNAA — Authorized by the Native American Programs Act of 1974 (NAPA), as

14.

15.

amended, the ICNAA is an entity within HHS that serves primarily to perform functions
and develop recommendations for short, intermediate, or long-term solutions to improve
AI/AN policies and programs as well as provide recommendations on how HHS should
be organized to administer services for the AI/AN population.
_ Joint Tribal/Federal Workgroup and/or Task Force — A group composed of individuals
who are elected tribal officials, appointed by federally recognized tribal governments
and/or federal agencies to represent their interests while working on a particular policy,
practice, issue, and/or concern.
Methodology — The procedures and techniques used to collect, store, analyze, and present
information. It is also a documented approach for performing activities in a coherent,
consistent, accountable, and repeatable manner.
Native American (NA) — Broadly describes the people considered indigenous to North
America.

16. Native 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 or organizations do not fall under
the intergovernmental committee exemption to the FACA found under 2 U.S.C. § 1534.
Therefore, HHS is required to adhere to FACA if representatives of those organizations
are included on advisory committees or workgroups.

17. Non-Federally Recognized Tribe — A 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.

. Policies with Tribal Implications — Refers to regulations, statutes, legislation, and 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.

19, Program Services and Resources - The SAMHSA services and/or resources provided by

a particular program and/or initiative that include but are not limited to technical
assistance, materials, and training.

20. Public Participation — When the public is notified of a proposed or actual action and is

21.

provided meaningful opportunities to participate in the policy development process.
SAMHSA Administrator’s Designee — Designated by the SAMHSA Administrator, an
individual who is knowledgeable about SAMHSA’s programs, budgets, and services and
has ready access to senior program leadership.

22. Self-Government — Government in which the people who are most directly affected by

23;

the decisions make decisions.
Sovereignty — The ultimate source of political power from which all specific political

powers are derived.

14 | SAMHSA TCP


E. Office of Management, Technology and Operations (OMTO) - OMTO provides
leadership and executive support for human capital management, information
technology, and agency administration and operations. OMTO provides:

e Human resource management and functions;

e Management and administration of SAMHSA policies and procedures;
e Information technology leadership, guidance, and technical expertise;
e Facility and inventory management, including security; and

e Administrative services.

F. Center for Mental Health Services (CMHS) - CMHS’s mission is to promote effective
mental health prevention, treatment and recovery services in every community. CMHS
leads national efforts to improve prevention and mental health treatment services for all
Americans. CMHS strengthens the nation's mental health system by helping to improve
and increase the quality and range of treatment, rehabilitation, and support services.
CMHS ensures the application of scientifically established findings and practice-based
knowledge in the prevention and treatment of mental disorders; to improve access, reduce
barriers, and promote high quality, effective programs and services for people with, or at
risk for, these disorders, as well as for their families and communities; and to promote an
improved state of mental health within the nation, as well as the recovery of people with
mental disorders.

G. Center for Substance Abuse Prevention (CSAP) - CSAP’s mission is to promote the
science-based, data-driven prevention of substance abuse within a broader behavioral
health context. CSAP provides national leadership in the development of policies,
programs and services to prevent the onset of illegal drug, underage alcohol, and tobacco
use. CSAP disseminates effective substance abuse prevention practices and through an
integrated systems and collaborative approach, builds the capacity of states, tribes,
communities and other organizations to apply prevention knowledge effectively. CSAP
administers the federal Workplace Drug Testing program.

H. Center for Substance Abuse Treatment (CSAT) - CSATs mission is to promote
community-based substance abuse treatment and recovery services for individuals and
families in every community. CSAT provides national leadership to improve access,
reduce barriers, and promote high quality, effective treatment and recovery services with
the primary objectives to increase the availability of clinical treatment and recovery
support services; improve and strengthen substance abuse clinical treatment and recovery
support organizations and systems; transfer knowledge gained from research into
evidence-based practices; and, provide regulatory monitoring and oversight of
SAMHSA-certified Opioid Treatment Programs and physician training on the use of
pharmacologic therapies. CSAT also manages the regulatory oversight of federal law

5 | SAMHSA TCP


Indian tribes may apply for waivers of statutory, regulatory, policy, or procedural
requirements that are discretionary and subject to waiver by SAMHSA. SAMHSA will, to
the extent practicable and permitted by law, consider any application by an Indian tribe for
such a waiver with a general view toward increasing opportunities for utilizing flexible
approaches when the proposed waiver is consistent with the applicable federal policy
objectives and is otherwise appropriate. If the application for a waiver is not granted,
SAMHSA will provide the applicant with timely written notice of the decision and the
reasons therefore.

E. Conflict Resolution - SAMHSA will abide by the HHS defined conflict resolution process
under which Indian tribes may bring forward concerns, which have a substantial direct effect.
However, Indian tribes and SAMHSA may not always agree and inherent in the government-
to-government relationship, Indian tribes may elevate an issue of importance to a higher or
separate decision-making authority. A written communication should be sent to the
SAMHSA Administrator outlining the issue or complaint with references made to the TCP
section that the tribal official believes was not adhered to by SAMHSA. The SAMHSA
Administrator, or designee, will acknowledge receipt of the complaint. The SAMHSA
Executive Leadership Team will make recommendations to the SAMHSA Administrator to
resolve the issue/complaint and the SAMHSA Administrator, or designee, will provide a
response to the tribe. Nothing in this policy creates a right of action against SAMHSA for

failure to comply with the policy.
VIL. JOINT TRIBAL/FEDERAL WORKGROUP and/or TASK FORCE

The special “tribal-federal” relationship is based in part on a government-to-government
relationship. At times, it may be necessary for SAMHSA to establish a joint tribal/federal
workgroup and/or task force to complete work needed to develop new policies, practices,
issues, and/or concerns as well as modify existing policies, practices, issues, and/or concerns.
A joint tribal/federal workgroup and/or task force does not take the place of tribal
consultation, but offers an enhancement by gathering individuals with extensive knowledge of
a particular policy, practice, issue and/or concern to work collaboratively and offer
recommendations for consideration by federally recognized Indian tribes and federal agencies.
The subsequent work products and/or outcomes developed by a joint tribal/federal workgroup
and/or task force will be handled in accordance with this policy. These workgroups will be a
Federal Advisory Committee Act (FACA) compliant unless otherwise exempt.

A. Meeting Notices
The purpose, preliminary charge, time frame, and other specific tasks or charge of the

workgroup will be clearly identified in the notice. All meetings should be open and widely
publicized ideally through OC or the SAMHSA center/office initiating the workgroup.

B. Workgroup Membership/Participants
SAMHSA will seek nominations from Indian tribes to participate in task forces and/or
workgroups. The Administrator will select workgroup members who represent various
regions and/or views of Indian Country. SAMHSA staff may serve in a technical advisory

capacity.

10 | SAMHSA TCP


Identify affected/potentially affected Indian tribes and tribal organizations.

Determine the most appropriate consultation mechanism after considering the critical
event and Indian tribe(s) affected/potentially affected.

D. Consultation mechanisms include but are not limited to one or more of the following:

Mailing information and/or request for consultation by mail;

Holding teleconferences in a timely manner. Written communication informing
affected/potentially affected Indian tribe(s) of the teleconference will include the
purpose of the call and provide toll-free access to the call;

Convening a meeting (in-person or virtual) in a timely manner with the
affected/potentially affected Indian tribe(s) to discuss all pertinent issues in a national,
regional, and/or local forum, and to extent practicable and permitted by law, when the
event is determined to have substantial impact;

Participating in annual HHS or other federal departments’ tribal budget and policy
consultation sessions;

Hosting listening sessions at tribal organization meetings where many tribes or tribal
officials are likely to be represented; or

Participating in other regular meetings or special HHS division or program level
consultation sessions.

E. The event and the consultation mechanism to be used will be communicated to
affected/potentially affected Indian tribe(s) using all appropriate methods and with as
much advance notice as practicable.

Official Notification — Within 30 calendar days of an identified event, and upon
determination of the consultation mechanism, proper notice of the critical event and
the consultation mechanism utilized will be communicated to affected Indian
tribe(s) using all appropriate methods including mailing, broadcast e-mail, F ederal
Register (FR), and other outlets. The FR is the most formal form of notice used for

consultation.

Correspondence — Written communications will be issued within 30 calendar days of
an identified critical event. The communication should clearly provide
affected/potentially affected Indian tribe(s) with detail of the critical event and the
manner and timeframe in which to provide comment. SAMHSA will use a “Dear
Tribal Leader” (DTL) letter to notify individual Indian tribes of consultation
activities. Centers and offices will work closely with the SAMHSA Senior Advisor
for Tribal Affairs if technical assistance is required for proper format, protocols,
current mailing lists, and content.

7 | SAMHSA TCP


regarding privacy of substance abuse treatment data.

I. Center for Behavioral Health Statistics and Quality (CBHSQ) - CBHSQ is the primary
source of national data on the prevalence, treatment, and health consequences of
substance abuse in the United States, and leads SAMHSA and other national efforts to
improve the quality of mental health and substance abuse prevention, treatment and
recovery support activities and services. CBHSQ carries out its mission through
administration of national data collection systems; analysis and reporting of data from
SAMHSA and other national, state and local data sets; development and dissemination of
behavioral health quality measures; maintenance of a national registry of evidence-based
programs and practices; and, collaborative activities with other federal departments and
other HHS divisions and offices. CBHSQ also oversees and/or coordinates SAMHSA’s
evaluation and quality management activities.

V. CONSULTATION PROCESS

Effective consultation between SAMHSA and Indian tribes requires trust between all parties,
which is an indispensable element in establishing a good consultative relationship. In order to
initiate and conduct consultation, the following serves as guidance.

A. Consultation occurs when:

e The SAMHSA Administrator, or designee, meets in person or via teleconference
and/or exchanges written correspondence with a tribal leader or designee or with
atribal representative designated by an elected/appointed tribal leader to discuss
issues concerning either party; or

e ASAMHSA Regional Administrator, who is the SAMHSA Administrator’ s
representative in the field, meets in person or via teleconference or exchanges
written correspondence with a tribal leader, or their designee, to discuss issues or
concerns of either party.

B. Tribes’ Role in Consultation: Tribes may initiate and/or participate in consultation with
the SAMHSA Administrator, or designated representative, through various mechanisms
described in this TCP. Tribes may also initiate and/or participate in meetings to facilitate
tribal-state relations on issues related to SAMHSA’s programs and services. Tribes will
work collaboratively with SAMHSA on reviewing and implementing this TCP and
enhancing consultation.

C. Ininitiating consultation, the SAMHSA Senior Advisor for Tribal Affairs will work with
the Administrator and OTAP Director to:

e Identify the event, as well as the complexity, implications, time constraints, and
issue(s) involved (e.g., policy, funding/budget development, programs, services,
functions and activities).

6 | SAMHSA TCP


OMB performance measures and requirements.

SAMHSA will evaluate and report on tribal feedback about its efforts in conducting
consultation. In addition, SAMHSA will report on barriers encountered and progress
toward addressing its mission and performance with respect to Indian tribes.

VI. |. OTHER CONSULTATION AREAS

A. Policy Development through Tribal Consultation Process — The need to consult on the
development or revision of a policy may be identified from within HHS, SAMHSA or Indian
tribe(s). This need may result from external forces such as executive, judicial, or legislative
branch actions or otherwise. Once the need to consult on development or revision of a policy
is identified, the consultation process must begin in accordance with critical events and
consultation mechanisms described above. SAMHSA centers/offices may request technical
assistance from the OPPI Senior Advisor for Tribal Affairs.

B. Regulation-Making - To the extent practicable and permitted by law, SAMHSA will not
promulgate any regulation that has tribal implications, preempts tribal law, or imposes
substantial direct compliance costs on Indian tribes, or that is not required by statute, unless,
prior to the formal promulgation of the regulation, SAMHSA:

e Provides a tribal summary impact statement in a separately identified portion of the
preamble to the regulation as it is to be issued in the FR, which consists of a description
of the extent of prior SAMHSA consultation with tribal officials, a summary of the nature
of tribal concerns and SAMHSA’s position supporting the need to issue the regulation,
and a statement of the extent to which the concerns of tribal officials have been met;

e Consults with tribal officials throughout all stages of the process of developing the
proposed regulation;

e Identifies federal funds necessary to pay the direct costs incurred by tribes in complying
with the regulation; and

© Makes available to the Secretary any written communications submitted to SAMHSA by
tribal officials.

C. Budget Formulation - SAMHSA will consult with Indian tribes throughout the development
of the HHS budget formulation process to the greatest extent practicable and permitted by
law. As per the HHS TCP, a tribal budget and policy consultation session is conducted
annually to provide Indian tribes the opportunity to present budget and policy priorities and
recommendations to the Department. The session is convened each year as a means for final
input in the development of the HHS budget prior to submission to OMB. The SAMHSA
Administrator, or designee, and the Chief Financial Officer attend this department-wide
consultation. In addition, SAMHSA-specific consultation meetings with tribes can occur.

D. Tribal Waiver - SAMHSA will review and work to streamline processes under which

9 | SAMHSA TCP


Substance Abuse and Mental Health Services Administration (SAMHSA)
Tribal Consultation Policy (TCP)

CONTENTS
I. Background
Il. Policy Statement
Il. Scope
IV. SAMHSA Centers and Offices
V. Consultation Process

VI. Other Consultation Areas

VII. Joint Tribal/Federal Workgroup and Task Force
VIII. References

IX. _ Effective Date

L Background

SAMHSA, as an operating division within the Department of Health and Human Services
(HHS), acknowledges and adheres to the HHS TCP, which applies to all HHS operating and
staff divisions and serves as a guide for tribes to participate in all HHS and division policy
development to the greatest extent practicable and permitted by law. SAMHSA has
maintained a SAMHSA-specific TCP since 2007. This document outlines the SAMHSA
specific consultation process in accordance with the prescribed HHS TCP process and
objectives.

The SAMHSA TCP acknowledges and affirms common goals with other HHS divisions, Indian
tribes and tribal organizations with special regard to:

¢ Reducing and ultimately eliminating behavioral health disparities faced by
American Indians and Alaska Natives (AI/AN); and

© Optimizing access to substance abuse and mental health services and programs in
order to achieve health equity for all AI/AN people and communities.

To achieve these goals, and to the extent practicable and permitted by law, it is essential that
federally recognized Indian tribes and SAMHSA engage in regular and meaningful
consultation. SAMHSA considers consultation an enhanced form of communication that
emphasizes trust, respect and shared responsibility. Consultation is an open and free exchange
of information and opinion among parties that leads to mutual understanding and
comprehension, the purpose of which is reaching consensus to the extent possible.

The special government-to-government relationship between the federal government and tribes
is based on the Constitution; has been given form and substance by numerous treaties, laws,
Supreme Court decisions, and Executive Orders; and, reaffirms the right of Indian tribes to self-
government and self-determination. The implementation of this policy is in recognition of the
special relationship that is affirmed in statutes and various Presidential Executive Orders as

1 | SAMHSA TCP


e Ifit is determined, that the document should be rewritten, the workgroup will rewrite
and SAMHSA will begin informal consultation again at the initial step above.

e Ifthe proposed product or draft policy is generally acceptable to the Administrator,
he/she will communicate acceptance of the product or policy and any final revisions
that will be made before processing and/or implementation of the policy or product
will be accomplished.

F. Recommendations and Policy Implementation
All final recommendations made by the workgroup will be presented to the
Administrator. Before any final policy decisions or recommendations are adopted by
SAMHSA, the proposed policy or recommendations will be publicized and circulated for
review and comment by Indian tribes, and where relevant, Indian organizations, and
within SAMHSA and/or within HHS as required. Once the consultation process is
complete and a proposed _ policy or recommendations are approved and implemented, the
final policy or recommendation will be broadly distributed to all Indian tribes along with
a description of the workgroup process that was utilized.

VII. REFERENCES - Acronyms, Definitions, Applicable Presidential and HHS
Directives and Applicable Statutes

A. Glossary of Acronyms

ACA
AI/AN
CMHS
CSAP
CSAT
CBHSQ
Division
DTL

. EO

10. FACA
11. FR

12. HHS
13. ICNAA
14. IEA

15. IHS

16. LGBT
17.0A

18. OBHE
19.0C

20. OFR
21. OIASA
22. OMB
23. OMTO

CRI AVRYN=

Patient Protection and Affordable Care Act

American Indian and Alaska Native

Center for Mental Health Services, SAMHSA

Center for Substance Abuse Prevention, SAMHSA

Center for Substance Abuse Treatment, SAMHSA

Center for Behavioral Health Statistics and Quality, SAMHSA
HHS Staff Division or Operating Division

Dear Tribal Leader letter

Executive Order

Federal Advisory Committee Act

Federal Register

U.S. Department of Health and Human Services
Intradepartmental Council on Native American Affairs, HHS
Office of Intergovernmental External Affairs, HHS

Indian Health Service, an Operating Division of HHS
Lesbian, Gay, Bisexual and Transgender

Office of the Administrator, SAMHSA

Office of Behavioral Health Equity, SAMHSA

Office of Communications, SAMHSA

Office of Financial Resources, SAMHSA

Office of Indian Alcohol and Substance Abuse, SAMHSA
Office of Management and Budget, White House

Office of Management, Technology and Operations, SAMHSA

12 | SAMHSA TCP


. Appointment of Alternates
Each primary representative of a workgroup may appoint an alternate by written
notification. In cases where an elected tribal leader (primary representative) appoints an
alternate who is not an elected official, and the primary member cannot attend a workgroup
meeting, the alternate will be permitted to represent the primary member and will have the
same participation rights as the primary member.

. Attendance at Meetings
Workgroup members must make a good faith effort to attend all meetings. Other
individuals may accompany workgroup members as that member believes is appropriate to
assist him/her to represent his/her interest or perspective; however, the primary
representative will be the only person who may speak or otherwise participate in workgroup
activities.

. Workgroup Protocols
The workgroup may establish protocols for meeting governance. Such protocols will

include, but are not limited to the following:

e Selection of workgroup co-chairs, if applicable;
e Role of workgroup members; and
e Process for decision-making (e.g., consensus-based or otherwise).

. Workgroup Charge

Prior to the workgroup formulation, SAMHSA will develop a detailed, initial workgroup
charge to define the needed result or activity required from the workgroup. Once formed,
the workgroup may develop recommendations for the final workgroup charge to be
approved by the Administrator, or the Center/Office Director.

. Workgroup Final Products
Once a final draft has been created by the workgroup, the following process will be used to

facilitate tribal consultation on the draft work product:

e Upon completion, the draft documents will be distributed informally to Indian tribes
and to the extent practicable and relevant, to Indian organizations for review and

comment.

e Comments will be returned to the workgroup, which will meet in a timely manner,
for discussion and determination of the next course of action.

e When the workgroup considers the proposed draft written product to be
substantially complete, the workgroup will forward the draft document to the
Administrator as the final recommendation for consideration.

e The workgroup will also recognize any contrary comment(s) in its final report
and explain the reasoning for not accepting the comment(s).

11 | SAMHSA TCP


e Receipt of Tribal Comment(s) - SAMHSA will develop and use all appropriate
methods to communicate clear and explicit information on the means and time frames
for Indian tribe(s) to submit comments on the critical event, whether in person, by
teleconference, and/or in writing.

e Reporting of Outcome —- SAMHSA will report on the outcomes of the consultation
(single event or series) within 90 calendar days of a final consultation. For ongoing
issues identified during the consultation, SAMHSA will provide status reports
throughout the year to HHS/IEA and Indian tribe(s).

F. Response to Official Tribal Correspondence - Official correspondence from an Indian
tribe may come in various forms but a resolution is the most formal declaration of an
Indian tribe’s position for the purpose of tribal consultation. In some instances, Indian
tribes may submit official correspondence from the highest elected and/or appointed
official(s) of the tribe. SAMHSA will give equal consideration to these types of
correspondence.

© Correspondence from a tribal staff person or tribal member who is not elected or
formally appointed to speak on behalf of the tribe or a tribal leader will be responded
to in accordance with SAMHSA’s established protocol, and will not be considered
official tribal correspondence or request for consultation.

© Once SAMHSA receives an official correspondence and/or resolution, the
Administrator and/or designee will respond appropriately. Official correspondence
submitted by Indian tribes will be promptly entered into the correspondence control
tracking system; referred to the appropriate center(s) and/or office(s); acknowledged
and responded to in accordance with established protocol for responding to
communications to the SAMHSA Administrator.

G. Schedule for Consultation — As needed, SAMHSA will establish and adhere to a
schedule of meetings to consult with Indian tribes and their representatives. SAMHSA
will coordinate with HHS/IEA to avoid duplication or conflicts with other national
tribal events and make every effort to schedule consultations in conjunction with the
HHS regional tribal consultation sessions. SAMHSA centers/offices will involve tribal
representatives at every practicable opportunity and establish additional forums for
tribal consultation and participation, if needed, for information sharing with tribal
leadership.

H. Consultation Performance and Accountability - SAMHSA contributes to the HHS Annual
Tribal Consultation Report. SAMHSA measures and reports on results and outcomes of
tribal consultation performance to fulfill the government-to- government relationship
with Indian tribes. SAMHSA will utilize the TCP to address its mission and performance
with respect to Indian tribes. SAMHSA’s work with Indian tribes will promote a
collaborative atmosphere to gather, share, and collect data and other information to
demonstrate the effective use of federal resources in a manner that is consistent with

8 | SAMHSA TCP


Provides liaison with other federal and other governmental entities around
international and tribal behavioral health issues;

Maintains and oversees SAMHSA’s regional presence through Regional
Administrators (RAs) in each of the 10 HHS regional offices. SAMHSA’s RAs
work closely with other HHS staff in the HHS regional offices, participate in HHS”
tribal consultations, and work with tribes and states to ensure communication and
coordination of activities;

Manages SAMHSA-wide strategic and program planning activities;

Provides leadership to assure consistent implementation of policies and
procedures in budget planning and policy review;

Analyzes legislative issues and maintains liaison with Congressional committees
with regard to substance abuse and mental health;

Coordinates SAMHSA’s efforts to reduce behavioral health disparities for diverse
racial, ethnic, and lesbian, gay, bisexual and transgender populations through the
Office of Behavioral Health Equity (OBHE), which was established by a provision of
the Patient Protection and Affordable Care Act (ACA); and,

Provides correspondence control.

C. Office of Communications (OC) - OC serves as the epicenter of SAMHSA news and
information. Through its services and tools, OC helps inform the public, the behavioral
health field, media, and other important audiences about the work of SAMHSA. From
media and constituency outreach to publications development and resource material, OC
is a one-stop resource serving the communications needs of SAMHSA’s internal and
external stakeholders.

D. Office of Financial Resources (OFR) - OFR provides Chief Financial Officer functions
including executive oversight and coordination for the following:

Financial policy development and implementation, in collaboration with other
SAMHSA offices and centers;

Budget formulation and execution, including performance analysis,
reporting, and presentation to HHS and OMB;

Acquisitions and contracts planning, review, award, and management;
Grants planning, review, award, and management; and

Management of SAMHSA and grantee audits, internal and external financial
compliance processes, and program integrity reviews.

4 | SAMHSA TCP


24.

25.

26.

2h

28.

29.

30.

31.

32.

State Recognized Tribes — Tribes that maintain a special relationship with the state
government and whose lands and rights are usually recognized by the state in which they
exist or reside. State recognized tribes may or may not be federally recognized.

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.

Treaty — A legally binding and written agreement that affirms the government-to-
government relationship between two or more nations.

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.

Tribal Officials — Elected or duly appointed officials of Indian tribes or authorized inter-
tribal organizations.

Tribal Organization — The recognized governing body of any Indian tribe or any legally
established organization of Indians that is controlled, sanctioned, or chartered by such
governing body or that is democratically elected by the adult members of the Indian
community to be served by such organization and that includes the maximum
participation of Indians in all phases of its activities. In any case, where a contract is let
or grant made to an organization to perform services benefiting more than one Indian
tribe, the approval of each such Indian tribe will be a prerequisite to the letting or making
of such contract or grant.

Tribal Resolution — A formal expression of the opinion or will of an official tribal
governing body that is adopted by vote of the tribal governing body.

Tribal Self-Governance — The governmental actions of tribes exercising self-government
and self-determination.

Urban Indian Organization (UIO) —A non-profit corporate body situated in an urban
center, governed by an urban Indian-controlled board of directors, and providing for the
maximum participation of all interested Indian groups and individuals, which body is
capable of legally cooperating with other public and private entities for the purpose of
performing the activities described in 503(a) of 25 U.S.C. § 1603. UIOs are not tribes or
tribal governments and do not have the same consultation rights or trust relationship with
the federal government.

C. Applicable Presidential and HHS Directives

I.

Department Tribal Consultation Policy, U.S. Department of Health and Human
Services, December 2010. HHS Office of Intergovernmental External Affairs

www.hhs.gov/IEA

Memorandum for the Heads of Executive Departments and Agencies,
Presidential Memorandum, November 5, 2009. http://www.whitehouse.gov/the-
press-office/memorandum-tribal-consultation-signed-president

Government-to-Government Relationship with Tribal Governments,
Presidential Memorandum, September 23, 2004. http://fhwa.dot.gov

15 | SAMHSA TCP


The SAMHSA Executive Leadership Team (ELT) serves as the Administrator’s senior advisory
team and includes center directors, office directors and other representatives the Administrator
may designate. The ELT supports this TCP through open communication with Indian tribes
and tribal officials. Communications at the ELT and SAMHSA center and office levels will
promote the principle that each SAMHSA center and office bears responsibility for addressing
Indian tribes’ substance abuse and mental health needs within the context of their respective

missions.

SAMHSA’s centers and offices are described in more detail below.

A. Office of the Administrator (OA) - OA provides strategic direction and leadership for
SAMHSA as it leads public health efforts to advance the behavioral health of the nation.
In collaboration with ELT, OA:

Identifies priorities and goals for SAMHSA’s programs and activities;

Serves as liaison to other HHS components, other federal agencies, relevant White
House offices, and outside groups; and

Coordinates policy, messages, and activities with other entities within HHS.

B. Office of Policy, Planning, and Innovation (OPPI) - OPPI provides leadership for the
development and implementation of SAMHSA’s policies and programs. OPPI’s
functions include:

Maintains and oversees the Office of Tribal Affairs and Policy (OTAP). OTAP is
the Lead Office for this policy. OTAP seeks to improve the behavioral health of
AI/AN by leading and supporting SAMHSA-wide actions that facilitate efficient
and effective delivery of resources and services to tribal communities. OTAP’s
work involves consultation, outreach, education and engagement of tribes, tribal
organizations, federal partners, and other stakeholders. OTAP provides and/or
coordinates technical assistance in implementing the SAMHSA TCP. OTAP
includes the Office of Indian Alcohol and Substance Abuse (OIASA), as
mandated by the Tribal Law and Order Act. OIASA oversees the federal
government's responsibility to align, leverage, and coordinate federal efforts and
resources to assist AI/AN and tribal communities to achieve their goals in the
prevention, intervention, and treatment of alcohol and substance abuse;

Provides guidelines on how SAMHSA will monitor and evaluate state plans for state
involvement in tribal consultation meetings, forums, or sessions with Indian tribes for
SAMHSA programs and services administered by or through a state with a federally
recognized tribe within its borders. OPPI addresses state plans where evaluation
identifies deficiencies in the consultation process as set forth in this policy, and works
closely with states to strengthen consultation for SAMHSA-funded programs and
services for AI/AN individuals and tribes.

3 | SAMHSA TCP


indicated in Section IIX.
II. POLICY STATMENT

Before any action is taken that will significantly affect Indian tribes, it is the SAMHSA policy
that consultation with Indian tribes will occur to the extent practicable and permitted by law.
The SAMHSA TCP establishes a process as defined in Sections V and VI of this policy to
ensure meaningful and timely input by Indian tribes in the development of policies that have
tribal implications.

On issues relating to tribal self-governance, tribal self-determination, tribal trust resources, or
tribal treaty and other rights, SAMHSA will make all practicable attempts, where appropriate,
to use consensual mechanisms for developing regulations, including negotiated rule-making.

Nothing in this policy waives the federal government’s deliberative process privilege.
Examples of the government’s deliberative process privilege are as follows:

e SAMHSA is specifically requested by members of Congress to respond to or report on
proposed legislation. The development of such responses and of related policy is a
part of the Executive Branch’s deliberative process privilege and should remain
confidential.

e Inspecified instances, Congress may require SAMHSA to work with Indian tribes on
the development of recommendations that may require legislation. Such reports,
recommendations or other products are developed in accordance with Office of
Management and Budget (OMB) Circular A-19.

SAMHSA will communicate with the Intra-departmental Council on Native American Affairs
(ICNAA) and the Office of Intergovernmental External Affairs (IEA) to facilitate any required
consultation forums, support the level of consultation required, record meetings, evaluate
results, determine whether additional consultation on policy items may be needed, and report to
the affected Indian tribes and Indian organizations.

Ill. SCOPE

The principles, guidelines and processes identified within this policy and/or procedure are
applicable to all SAMHSA staff, including federal civilian employees, Commissioned Corps
Officers, interns, contractors, and sub-contractors, collectively referred to as “SAMHSA staff.”
This document also serves as updated guidance for Indian tribes.

IV. SAMHSA CENTERS AND OFFICES

SAMHSA has four centers and four offices in its organizational structure, plus two offices
established specifically to address disparities and tribal issues. All SAMHSA centers and
offices are responsible for conducting tribal consultation to the extent practicable and permitted
by law on policies that have tribal implications in accordance with the HHS and SAMHSA TCP

processes.

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24. OPPI Office of Policy, Planning, and Innovation, SAMHSA

25. OS Office of the Secretary, HHS

26. OTAP Office of Tribal Affairs and Policy, SAMHSA
27. STAC Secretary’s Tribal Advisory Committee, HHS

28. TTAC Tribal Technical Advisory Committee, SAMHSA
29. TCP Tribal Consultation Policy

30. UIO Urban Indian Organization

31. USC United States Code

B. Definitions

1.

Agency — Any authority of the United States that is an “agency” under 44 US.C. §
3502(1) other than those considered to be independent regulatory agencies, as defined in
44 U.S.C. § 3502(5).

Communication — The exchange of ideas, messages, or information, by speech, signals,
writing, or other means.

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 to the extent
possible.

Consultation Events — A planned or unplanned event that has or may have a substantial
impact on Indian tribe(s) (e.g., issues, policies, or budgets that may come from any level
within HHS).

DTL letter — A formal letter on behalf of an authorized SAMHSA representative
informing Tribal Leaders of events, meetings, resolutions, opportunities, or other
information critical to or for tribes.

Deliberative Process Privilege — A 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.
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).

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.

Indian — A person who is a member of an Indian tribe as defined in 25 U.S.C. § 479a.
Throughout this policy, Indian is synonymous with AI/AN.

10. Indian Organizations — 1) Those federally recognized tribally constituted entities that

have been designated by their governing body to facilitate communications and
consultation activities with HHS, and 2) any regional or national organization whose
board is comprised of federally recognized tribes and elected or appointed tribal leaders.
The government does not participate in government-to-government consultation with

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4.

Consultation and Coordination with Indian Tribal Governments, Executive Order
13175, 65 Fed. Reg. 67249, November 6, 2000: http://www.archives.gov/federal-
register/executive-orders/2000.html

Memorandum on Government to Government Relations with Native American Tribal
Governments, April 29, 1994. https://www.gpo.gov/fdsys/pkg/WCPD-1994-05-
02/pdf/WCPD-1994-05-02.pdf page 936.

Federal Office of Management and Budget, Circular No. A-19, Legislative
Coordination and Clearance, July 31, 1972, Revised 1979.

http://www. whitehouse.gov/omb/circulars_a019

D. Applicable Statutes

Ix.

1.

2.

Section 506A of the Public Health Service Act, alcohol and drug prevention or treatment
services for Indian and Native Alaskans. 42 U.S.C. § 290aa-5a.

Section 1933(d) of the Public Health Service Act authorizes direct funding under the
Substance Abuse Prevention and Treatment Block Grant to one American Indian tribe
(Red Lake Band of Chippewa Indians of Minnesota) due to previous receipt of such
funds as specified in statute.

Indian Alcohol and Substance Abuse Prevention and Treatment Act of 1986, 25 U.S.C. §
2401 et seq., as amended by the Tribal Law and Order Act of 2010, Pub. L. No. 111-211,
Title II, requires HHS, the Department of Interior, and the Department of Justice to
coordinate federal programs on Indian alcohol and substance abuse issues and directs
SAMHSA to facilitate the coordination of efforts.

Indian Health Care Improvement Act, 25 U.S.C. § 1667c.

EFFECTIVE DATE

This TCP is effective on the date of the signature by the SAMHSA Administrator. This policy
replaces the SAMHSA Tribal Consultation Policy signed on March 2, 2007.

Effective this 24" day of February, 2016.

Kana Enomoto, Acting Administrator
Substance Abuse and Mental Health Services Administration

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