[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]


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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.

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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:
    <bullet> Executive Order 13175, reaffirmed in 2009;
    <bullet> HHS Tribal Consultation Policy (established in 2005, and 
amended in 2010);
    <bullet> Input from an ACF Tribal/Federal Workgroup convened to 
develop the ACF Draft Consultation Policy;
    <bullet> Input from Tribes to ensure a consultation policy that 
reflects the goals of all partners involved; and
    <bullet> 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:
    <bullet> Older Americans Act, Public Law 89-73, as amended (42 
U.S.C. 3001 et seq.);
    <bullet> Indian Self-Determination and Education Assistance Act, 
Public Law 93-638, as amended (25 U.S.C. 450 et seq.);
    <bullet> Native American Programs Act, Public Law 93-644, as 
amended (42 U.S.C. 2991 et seq.);
    <bullet> Indian Health Care Improvement Act, Public Law 94-437, as 
amended (25 U.S.C. 1601 et seq.);
    <bullet> Personal Responsibility and Work Opportunity 
Reconciliation Act of 1996, Public Law 104-193 (42 U.S.C. 1305 et 
seq.);
    <bullet> Head Start for School Readiness Act of 2007, Public Law 
110-134, as amended (42 U.S.C. 9801 et seq.);
    <bullet> Patient Protection and Affordable Care Act (PPACA), Public 
Law 111-148 (42 U.S.C. 18001 et seq.);
    <bullet> Fostering Connections to Success and Increasing Adoptions 
Act of 2008, Public Law 110-351 (42 U.S.C. 1305 et seq.);
    <bullet> Presidential Executive Memorandum to the Heads of 
Executive Departments dated April 29, 1994;
    <bullet> Presidential Executive Order 13175, Consultation and 
Coordination with Indian Tribal Governments, November 6, 2000; and
    <bullet> 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)
    <INF>[squf]</INF> Children's Bureau (CB)
    <INF>[squf]</INF> 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)
    <INF>[squf]</INF> 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.

<bullet> Office of Head Start
<bullet> Children's Bureau
<bullet> 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