Treasury Department Progress Report to OMB on Tribal Consultation

This progress report responds to a Presidential Memorandum dated November 5, 2009, directing 

each department and agency to submit to the Director of the Office of Management and Budget, 

on an annual basis, a progress report on consultation and coordination with Indian tribal 

governments and any proposed updates to its plan to implement the policies and directives of 

Executive Order 13175 (EO 13175). EO 13175 requires agencies to establish a process to ensure 

tribal consultation is undertaken as required on policies and regulatory or legislative activities 

with tribal implications. Policies with tribal implications are ones 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. 

Treasury is committed to robust tribal consultation. Consistent with its tribal consultation plan of 

action, Treasury has engaged in careful and extensive consultation on matters with tribal 

implications during the past year. 

The Treasury Tribal Consultation Process

The Department of the Treasury supports the overarching Fundamental Principles set forth in 

Section 2 of EO 13175. Three additional principles inform Treasury’s implementation of its 

tribal consultation process and policies. 

 Treasury is committed to the establishment of a comprehensive consultation process 

leading to meaningful dialogue with Indian tribes on Treasury policies that have 

implications for such tribes, and in particular those regulations and legislative proposals 

that have a direct and identifiable economic impact on Indian tribes or that preempt tribal 

law. 

 Tribal consultation will assist Treasury’s development of policy, regulation, and 

legislative activities, as it will increase Treasury’s understanding of the issues and 

potential impacts of activities on tribes and American Indians and Alaskan Natives.

 Treasury is committed to developing and issuing regulations and guidance in a timely and 

efficient manner when they are required.

In furtherance of these goals, the Treasury plan provides that each bureau and office is 

responsible for maintaining a well-defined set of procedures to achieve the following core 

objectives: (1) timely identification of matters that may require tribal consultation; (2) timely 

process for determining whether consultation is required; and (3) an ongoing, pro-active tribal 

consultation processes. See Appendix A for additional details on the Treasury Department’s 

tribal consultation process.
2

Agency Point of Contact

The agency point of contact for tribal consultation is the Deputy Assistant Secretary for Policy 

Coordination in the Office of Economic Policy (hereafter the Point of Contact for Tribal 

Consultation or POCTC). Elaine Buckberg currently serves in this position. The POCTC relies 

on Treasury’s Office of the General Counsel (OGC) and the Executive Secretariat (ES) to 

identify issues that may require consultation prior to issuance of Treasury policies. In addition to 

these Department-wide efforts however, and consistent with Deputy Secretary Neal Wolin’s 

March 9, 2010 Memorandum for Office and Bureau Heads, each Treasury bureau and office 

must undertake tribal consultation in accordance with EO 13175.

Consultation

Tribal leaders have raised the following key issues in consultations with the Treasury 

Department. 

 Consistently, tribes stress the importance of tribal sovereignty. True tribal consultation is 

only possible when both parties understand that the relationship between tribes and the 

federal government is a government-to-government relationship. 

 Tribal leaders regularly raise concerns about tax code matters affecting tribal 

governments, tribal corporations, and tribal members. Among several tax issues 

highlighted by tribal leaders, concerns about the general welfare doctrine were foremost.

 Tribal leaders raise a number of concerns regarding access to capital for economic 

development. In particular, tribal leaders underscore their interest in the structure and 

allocation of authority to issue tax-favored bonds under the Tribal Economic 

Development Bond program, and support for the well-regarded Community Development 

Financial Institutions (CDFI) Fund’s Native Initiatives Program. 

These points have been raised during consultation since early 2009, and the Treasury Department 

has taken these matters seriously. As sustained consultation continued, the Treasury Department 

developed concrete responses to several of the tribal leaders’ key concerns. Several of these 

responses have been realized during the past year, and are described below.

Tribal Sovereignty

During tribal consultation, exchanges between the federal government and tribal governments 

are conducted on a government-to-government basis, predicated on mutual understanding and 

respect for tribal sovereignty. A strong consultation process requires open lines of 

communication in both directions. Tribal leaders need to be able to contact Treasury to request a 

meeting, ask about a specific program, or convey their views about a particular policy matter. 
3

The Treasury Department needs to be able to communicate with tribal leaders in a clear, 

consistent, and transparent manner, and solicit tribal views on policy issues that have tribal 

implications. 

In support of these objectives, several institutional structures are in place to facilitate 

government-to-government communication with tribal leaders. 

 The Treasury Department maintains an email address, Tribal.Consult@Treasury.gov, to 

which any tribal leader may send a tribal consultation request.

 The Department has a dedicated tribal consultation webpage. It is regularly updated with 

requests for information from tribal leaders and other interested parties, policy 

statements, reports on recent consultation activities, and reports to Congress. 

 We have engaged in multiple consultation processes over a wide variety of issues, 

including the general welfare doctrine, per capita distributions from particular 

settlements, and Tribal Economic Development authority allocation mechanisms. In 

addition, we continue to hold general consultation and listening sessions to solicit input 

from tribal leaders, and enable tribal leaders to ask detailed questions directly of Treasury 

officials. 

Consultation can and must take place both in Washington, D.C. and in Indian Country. In 

addition, some consultation is conducted via audio conference.

Recent General Consultation Activities this Year1

Elaine Buckberg, POCTC, hosted a general listening session for tribal leaders at the Main 

Treasury Building on July 23, 2013. Seventeen Native American tribes sent delegations to this 

meeting, to convey their concerns and priorities. Representatives from several tribal 

organizations, including the National Congress of American Indians (NCAI), the Native 

American Finance Officers Association (NAFOA), and the United Southern and Eastern Tribes 

(USET) participated in this listening session. Treasury Department personnel from the Office of 

Economic Policy; the Office of Tax Policy; the Office of Small Business, Community 

Development, and Housing Policy; the Native Initiatives Program of the CDFI Fund; and the 

Internal Revenue Service (IRS) Indian Tribal Governments (ITG) Office also attended the 

meeting. 

 

1

In addition to consultation activities, Treasury Under Secretary Mary Miller represented the Department at the 

inaugural meeting of the White House Council on Native American Affairs, on July 29, 2013.
4

Donet Graves, Deputy Assistant Secretary for Small Business, Community Development and 

Housing Policy, visited Pine Ridge reservation in South Dakota in June 2013. He met with tribal 

leaders, visited a CDFI, and toured local businesses to learn about ways Treasury can support 

greater capital and credit access, and the impact CDFI dollars are having in the community. 

Alexander Gelber, Deputy Assistant Secretary for Microeconomic Analysis, spoke at the 

National Council of American Indians Executive Council’s Winter Session on March 6, 2013. 

His speech provided an overview of Treasury’s recent work on tribal policy. An informal 

listening session was held immediately after the speech.

Deputy Secretary Neal Wolin spoke at the opening session of the 2012 White House Tribal 

Nations Conference on December 5, 2012. In addition, IRS Indian Tribal Governments Office 

Director Christie Jacobs and DAS Don Graves participated in the conference break-out session 

on strengthening tribal communities through economic development.

In late September 2012 Barrett Hester, Acting Deputy Assistant Secretary for Government 

Financial Policy (OGFP DAS) met with leaders of the Yankton Sioux and Santee Sioux Tribes in 

South Dakota and Nebraska, respectively, to discuss the establishment of their development 

funds on October 1, 2013 and the investment of these funds. Gary Grippo, OGFP DAS, has 

continued the consultation process in FY 2013 with calls to the Tribes’ leaders in late April.

Although sequestration has limited travel funds, other Treasury officials have travelled across the 

country to conduct specific outreach efforts. The IRS Indian Tribal Governments Office 

regularly holds regional tribal consultation sessions in a variety of venues. Additional details on 

recent consultation activities are provided below and in Appendix B.

Tribal leaders often raise issues that concern both Treasury headquarters (“Departmental 

Offices”) and the IRS. To best address these concerns we have regularly held joint consultation 

sessions during which tribal leaders engage with senior officials from both Departmental Offices 

and the IRS. Representatives of other federal agencies have been included as appropriate. This 

approach maximizes efficiency and encourages a collaborative process.

Topical Consultation Activities This Year 

Specific issues addressed through consultation during the past year are discussed below.

General Welfare Doctrine. During the course of our consultation efforts, as noted above, tribal 

leaders repeatedly raised concerns regarding whether certain payments or benefits provided by 

the tribe to members are excludable from taxable income under the general welfare doctrine. 

 The General Welfare Exclusion (GWE) is an uncodified, administrative exclusion from 

income dating from the 1930s, when the IRS took the position that welfare payments 

were excludible from taxable income.
5

 New proposed guidance, released in December 2012 and currently in effect, identifies 

broad exclusions from taxable income that correspond to benefits provided by Indian 

tribal governmental programs to tribal members. 

This new guidance does not govern what benefits a tribe can provide its members; rather, the 

GWE governs whether the value of these benefits should be included in the taxable income of 

the benefit recipient. Tribes are free to provide benefits on whatever basis they see fit, subject to 

other provisions of law.

This new GWE guidance outlines a proposed set of general principles and safe harbors under 

which Indian tribal government benefits are covered by the exclusion. The new GWE guidance 

allows many tribal government benefits to be excluded from taxable personal income, including 

assistance with housing repairs and utilities, some rent and mortgage payments, payments for 

tuition and educational supplies, job counseling and some placement expenses and assistance for 

elderly and disabled tribal members. 

Before releasing the new guidance, Treasury and IRS listened to and considered the requests of 

tribal leaders for increased clarity on the application of the general welfare doctrine. While the 

proposed GWE guidance became effective immediately, Treasury issued the guidance in 

proposed form to allow for additional consultation with tribes on ways it can be further 

improved. Although the formal comment period ended in June, Treasury will continue to accept 

comments, and to assess the feasibility of administering the current proposed guidance, before 

final GWE guidance is issued. Because the current, proposed guidance was issued “with

reliance”, tribes have been authorized to follow the proposed guidance since December 2012 and 

the IRS is currently applying the proposed draft guidance. 

Also with respect to the taxable income of tribal members, the following developments are 

noteworthy.

Per Capita Payments from Proceeds of Settlements of Indian Tribal Trust Cases. Certain recent 

settlements between the federal government and 70 distinct Native American tribes compensate 

tribes for their claims that the Department of the Interior mismanaged trust accounts, lands, and 

natural resources in the past. Several tribes and tribal representatives raised questions related to 

the tax status of these settlement payments in the spring of 2012. Treasury and the IRS therefore 

engaged in repeated consultations on this issue during the spring and summer of 2012. 

On September 6, 2012, Treasury and the IRS issued Notice 2012-60 which asserts that the per 

capita payments from these settlement funds are not included in the recipients’ taxable income. 

The IRS subsequently issued Notice 2013-1, which updates and supersedes Notice 2012-60. 
6

Since the fall of 2012 several tribes and the NCAI have requested that the Treasury Department 

and the IRS expand the scope of these notices to cover per capita distributions outside of the 

settlement context. We are in the process of considering this request.

Business Tax Credits to Stimulate Employment among Native Americans and Alaska Natives. In 

its Fiscal Year 2014 Revenue Proposals (Green Book), the Treasury Department recommends 

making permanent the Indian Employment Credit (IEC) and the Work Opportunity Tax Credit

(WOTC). The proposal would also simplify the calculation of the IEC. Both credits have been 

extended numerous times, but often either retroactively or near the expiration date, and only for a 

few years. This pattern leads to uncertainty for employers regarding the availability of the credits 

and may limit their effectiveness. 

 Work Opportunity Tax Credits. The WOTC employer business tax credit effectively 

reduces hiring costs. This program does not target Native Americans exclusively, but it is 

important to Indian Country for two reasons:

o Qualified veterans are now included among the targeted groups eligible for the 

WOTC, and the armed forces enlistment rate of Native Americans is the highest 

of all widely-recognized demographic groups in the United States. 

o The WOTC targets the economically disadvantaged, and unemployment rates 

among Native American communities are high.

An employer who submits the necessary form receives a business tax credit for qualified 

wages paid to a WOTC-eligible employee during the first year of employment, or for a 

longer period in some cases.

2

The main objective of this program is to enable targeted 

employees to gradually achieve economic self-sufficiency, earning a steady income and 

becoming contributing taxpayers, while participating employers are partly compensated 

for employee hiring costs through reductions in their federal business income tax 

liability. 3

 Indian Employment Credit. The IEC is a business income tax credit available to 

employers who hire registered Native American Indians, and spouses of registered Native 

American Indians, living on or near an Indian reservation and working for an employer 

on that reservation. The credit is available to qualified workers who earn $45,000 or less 

annually and who are not employed in the gaming industry. 

Employers may not take the WOTC and the IEC concurrently for the same employee.

 

2 Employers can claim a credit of 50 percent of the first $10,000 earned for retaining long-term family assistance 

recipients during a second year. See CRS Report RL30089 (2013), The Work Opportunity Tax Credit (WOTC), p. 8.

3

See the Department of Labor WOTC home page for additional details on the WOTC.
7

Pension Plans for Employees of Indian Tribal Governments

The Department of the Treasury issued an Advanced Notice of Proposed Rule Making 

(ANPRM) on November 7, 2011 to solicit comments on and initiate a dialogue with the tribal 

community concerning guidance under consideration relating to the determination of whether a 

plan of an Indian tribal government is a governmental plan within the meaning of Section 414(d) 

of the Internal Revenue Code. Section 414(d) was amended by the Pension Protection Act of 

2006, Pub. L. No. 109-280, 120 Stat. 780 (PPA ’06) to include certain plans of Indian tribal 

governments and related entities. PPA ’06 provides that the term “governmental plan” includes a 

plan established and maintained by an Indian tribal government, a subdivision of an Indian tribal 

government, or an agency or instrumentality of either, if all the services provided by employees 

participating in the plan are in the performance of essential governmental functions, but not in 

the performance of commercial activities (whether or not an essential governmental function).

Treasury Departmental Offices and the IRS conducted several consultation sessions with tribes 

on the ANPRM following its issuance. Further consultation on this issue is contemplated 

before future guidance is finalized.

Access to Capital

During consultation tribal leaders stressed the importance of improved access to capital and 

credit in achieving economic growth in Indian Country. Treasury programs that facilitate access 

to capital, and tribal consultation activities related to new initiatives, are described below.

Native Initiatives. The CDFI Fund’s Native Initiatives program is well-regarded in Indian 

Country. The mission of the CDFI Fund is to expand the capacity of financial institutions to 

provide credit, capital, and financial services to underserved populations and communities in the 

United States. Native Initiatives has two components that focus exclusively on establishing and 

strengthening CDFIs in American Indian, Alaskan Native, and Native Hawaiian communities:

the Native American CDFI Assistance Program (NACA Program) and the Capacity Building 

Initiative

There are 72 certified Native CDFIs in operation throughout the country, up from just 14 in 

2001. Clearly, there is demand among American Indians, Native Alaskans, and Native 

Hawaiians for the capital and institutional support Native CDFIs provide. 

In May 2013 the Treasury Department announced the response to our most recent round of 

applications for funding under the NACA Program. The CDFI Fund received 65 eligible NACA 

applications requesting $26.9 million. The applicants came from 21 states. These applications are 

currently being reviewed through a merit-based quantitative evaluation system designed to award 

funding to the applicants most likely to have the greatest impact in Native communities. The 

CDFI Fund is making approximately $11.4 million available for Financial Assistance and 
8

Technical Assistance awards through the NACA Program. 

Since the NACA Program was launched in 2001, the CDFI Fund has provided over $81 million 

in Financial Assistance and Technical Assistance awards under the NACA Program. More than 

375 Native CDFIs have received more than 11,000 hours of technical assistance, ultimately 

strengthening their ability to serve community members. 

CDFI Study on Access to Capital and Credit. This year the CDFI Native Initiatives Program 

launched a new study of Native communities’ access to capital and credit. The project will 

provide detailed analysis and quantitative research that can lead to actionable recommendations 

for improving access to capital and credit in Native Communities. The CDFI Native Initiatives 

Program has solicited comments from Indian Country to help direct the study, and will be 

conducting a number of consultations as part of the study process.

CDFI Bond Guarantee Program. The new CDFI Bond Guarantee Program, authorized under the 

Small Business Jobs Act of 2010, can be a valuable source of credit and capital to Indian 

Country, as it provides long-term capital (up to 30 years) at below-market rates to eligible 

CDFIs. All certified CDFIs are eligible to apply for the CDFI Bond Guarantee Program, 

regardless of their target market. The program is designed to operate at no cost to the taxpayer. 

As a result, all bonds issued must be secured by collateral and potential borrowers may be 

required to obtain additional credit enhancements. 

The Treasury Department recognizes that collateral issues are especially difficult for Native 

communities, and the Department has created a number of alternative pathways for tribes to take 

advantage of the program, one of which includes participating as a Secondary Borrower who 

receives loans from a Certified CDFI. Tribes or other tribally-related entities also may participate 

by providing credit enhancements to a Certified CDFI that applies to be the recipient of bond 

proceeds.

The application period for FY2013 closed on July 17, 2013, and Treasury hopes to provide its 

first Guarantee approval no later than September 30, 2013. Contingent upon Congressional 

authorization for Treasury to issue guarantees in FY2014, the Department will resume its 

outreach efforts next fiscal year to prepare Native communities and the CDFI industry at large 

for the 2014 application period of the CDFI Bond Guarantee Program. 

Tribal Economic Development Bonds. The Treasury Department has also worked with tribes to 

help improve their access to the capital markets. Under current law, tribes have a more limited 

authority to issue tax-exempt municipal debt than states and localities. Many have argued against 

this policy on a variety of grounds, including that it has inhibited economic development, 
9

hampered tribes’ access to the capital markets, and is unfair when compared to the broader 

authority granted to state and local governments. The American Recovery and Reinvestment Act 

(Recovery Act) responded to these concerns by granting Treasury the authority to allocate $2 

billion of Tribal Economic Development Bonds (TEDBs) to tribal governments according to 

criteria more comparable to those applied to state and local government bonds. These allocations 

effectively grant tribes the authority to issue tax-exempt debt for a wide range of projects that 

previously would not have qualified for tax-exempt status. 

In the FY 2014 Green Book, the Treasury Department proposes key permanent changes to the 

structure of TEDBs. These changes were also proposed in the Department’s 2011 Report to 

Congress. First, the Treasury Department proposes adopting for tribal governments, on a 

permanent basis, a TEDB authority eligibility standard that is comparable to state or local 

government standards of eligibility for issuing tax-exempt governmental bonds. Second, it 

recommends adoption of a comparable private activity board standard, with a tailored volume 

cap. Third, project location restrictions would be retained but they would be somewhat more 

flexible than under current law. Finally, TEDB gambling facility restrictions would be retained. 

The Report concluded that “for reasons of tax parity, fairness, flexibility, and administrability, 

the Department recommends that Congress adopt the State or local government standard for taxexempt government bonds... on a permanent basis for purposes of Indian Tribal government 

eligibility to issue tax-exempt governmental bonds, without a bond volume cap.”

4

Re-Allocation of Existing TEDB Authority under the Recovery Act. In July 2012 the IRS released 

Notice 2012-48, which provides guidelines and application forms for the re-allocation of 

approximately $1.5 billion in remaining unused national bond volume authority for TEDBs. 

These new guidelines will be followed to re-allocate authority that was previously allocated in 

accordance with the Recovery Act but subsequently forfeited. 

 The maximum allocation available to any one tribe is slightly less than $300 million as of

August 1, 2013. This per-tribe ceiling will decline as the total authority is used. 

 Authority is allocated immediately for approved projects, instead of waiting for a specific

date as was done during the original allocation process. 

Consultation with tribal leaders preceded the development and announcement of these new 

guidelines. Our objective is to help tribal nations access these bonds to create jobs and growth in 

Indian Country.

Additional Outreach to Indian Country

 
10

On May 10, 2013, a preliminary meeting was held at the Treasury Department to introduce

POCTC Elaine Buckberg to a small number of influential Native leaders. In attendance were 

representatives of Native American tribes, the National Congress of American Indians (NCAI), 

and the Native American Finance Officers’ Association (NAFOA). Treasury’s Office of 

Economic Policy, Office of Tax Policy, and the IRS Indian Tribal Governments Office also 

participated.

On July 16, 2013, the Treasury Department and IRS conducted a phone consultation with Alaska 

Regional Corporations (ARCs) to discuss a forthcoming draft notice on applying the voluntary 

withholding provisions to dividends and other payments made by an ARC. Voluntary income tax 

withholding arrangements allow taxpayers to avoid potentially burdensome final tax payments at 

the end of the year. Twenty-seven tribal representatives participated in the call, together with 

Treasury personnel from the Office of Tax Policy, Office of Economic Policy, the IRS Chief 

Counsel’s Office, and the IRS Indian Tribal Governments Office.

Conclusion

The Treasury Department is actively monitoring its tribal consultation process to ensure that it 

fulfills the mandate of EO 13175, and will propose updates if and when necessary. At this time 

the process appears to be working effectively to ensure meaningful consultation and 

collaboration with tribal officials in policy decisions that have tribal implications. 
11

Appendix A: The Treasury Department Tribal Consultation Process

Guiding Principles: The White House Executive Memorandum on Tribal Consultation 

(November 5, 2009) highlights the Administration’s commitment to continued implementation 

of the policy directives in Executive Order 13175 (EO 13175).

The Treasury Department supports the fundamental principles outlined in EO 13175. Three 

further principles, consistent with EO 13175, guide the Treasury Department’s consultation 

process:

5

 The Treasury Department is committed to the establishment of a comprehensive 

consultation process that sustains ongoing, meaningful dialogue with Indian tribes on 

Treasury policies that have implications for such tribes, and in particular those 

regulations and legislative proposals that have a direct and identifiable economic impact 

on Indian tribes or preempt tribal law. 

 Tribal consultation will assist Treasury’s development of policy, regulation and 

legislative activities, as it will increase Treasury’s understanding of the potential impacts 

of these activities on tribes and American Indians and Alaskan Natives.

 The Treasury Department is committed to developing and issuing regulations and 

guidance in a timely and efficient manner.

Agency Point of Contact: The agency point of contact for tribal consultation (POCTC) is the 

Deputy Assistant Secretary for Policy Coordination in the Office of Economic Policy. The 

POCTC relies on Treasury’s Office of the General Counsel (OGC) and Executive Secretariat 

(ES) to identify issues that could require consultation prior to issuance of Treasury policies. Each 

Treasury bureau and office must undertake tribal consultation in accordance with EO 13175.

Goals of Consultation: Consultation is designed to strengthen relationships between the U.S. 

government and sovereign tribal governments, and to reduce the impact of unfunded mandates 

on tribal governments and tribal members to the extent practicable and permitted by law. Under 

EO 13175, new legislative proposals, regulations, and administrative practices, including 

changes to existing policies, require consultation to the extent that they explicitly target Native 

 

5 EO 13175 is available at: http://frwebgate.access.gpo.gov/cgibin/getpage.cgi?dbname=2000_register&position=all&page=67249
12

Americans or Alaskan Natives, or affect tribal governments and/or tribal members exclusively or 

in a significantly disproportionate manner relative to the majority of U.S. residents.6

Treasury-Wide Policy on Tribal Consultation: Each bureau and office is responsible for 

maintaining well-defined procedures to achieve the following core objectives:

 Timely identification of matters that may require tribal consultation, to include regulatory 

and legislative activities that fall within the span of bureau or office operations as well as 

direct program responsibilities.

 Timely process for determining whether consultation is required, to include timely notice 

to the POCTC of non-routine issues of importance regarding legislative activities, 

regulations, and administrative practices that may require tribal consultation. The POCTC 

is also available for advice on the consultation process as needed.

 Ongoing, pro-active tribal consultation processes, to include early outreach to solicit 

comments from tribal governments and members who may be substantially affected by 

changes in laws, regulations or policies under consideration, when it has been determined 

that EO 13175 requires consultation. Outreach should incorporate an open process 

through which tribal governments may pro-actively consult with the Treasury bureau or 

office, on a government-to-government basis, regarding matters that involve tribal and 

federal law, regulations, and administrative practice.

These core objectives are discussed below in greater detail.

Timely Identification of Matters That May Require Tribal Consultation 

Program and/or legislative staff in each Treasury bureau and office are responsible for 

identifying pending legislation and regulations that may disproportionately affect tribal 

governments and members. 

 Explicit criteria that may be used to determine when tribal consultation is appropriate, 

consistent with the mandate of the bureau or office, should be developed and made clear 

to program and legislative staff, and to points of contact in the appropriate legal office. 

 

6 Consistent with EO 13175, please note that the Treasury Department will not be able to accommodate requests for 

consultation on particular matters, including matters that are the subject of anticipated or active litigation or 

enforcement actions.
13

 Bureaus and offices are encouraged to develop indicators of disproportionate effects on 

tribal governments and members, unfunded mandates, and regulations that would 

preempt tribal law, to assist program staff and legal counsel in the identification of issues 

that are likely to require tribal consultation. 

Treasury Department legislative proposals that have tribal implications should not be submitted 

prior to tribal consultation.

Timely Process for Determining Whether Consultation is Required

Each bureau and office is expected to comply with EO 13175, and to initiate consultation at the 

earliest stage possible when it is required. In general, program or legislative staff in each 

Treasury bureau and office should inform the POCTC on a timely basis regarding pending 

legislation, regulations or administrative practices that may require tribal consultation. 

OMB Memorandum M-10-33, “Guidance for Implementing E.O. 13175,” requires that (a) 

proposed legislation with tribal implications include a statement or certification that tribal 

consultation was conducted or is not required, and (b) proposed final regulations that would 

impose unfunded mandates on tribes or preempt tribal law include a “tribal summary impact 

statement.”7Treasury offices and bureaus should include these elements in legislative proposals 

and proposed final regulations submitted for final Treasury clearance, prior to submission to 

OMB. 

The POCTC is available to assist Treasury bureaus and offices in identifying proposed 

legislation, regulations, and administrative practices that require tribal consultation, if the 

application of the requirements of EO 13175 is questionable in the view of program staff. In such 

cases the POCTC will respond to the inquiry within 15 days. If the POCTC and the Treasury 

bureau or office determine that consultation is required, consultation should be initiated within 

30 days. If the POCTC and the Treasury bureau or office disagree on the need for tribal 

consultation, the question will be referred to OGC for final determination.

As part of their regular review process for proposed legislation, regulations, or administrative 

practices, ES and OGC shall ask each bureau or office, at the earliest stage that it becomes 

apparent an activity might require consultation, if a consultation decision has been made. If the 

associated clearance documents do not indicate explicitly that tribal consultation is completed, 

planned, or under way, then whenever practicable OGC, ES, or Legislative Affairs will return the 

documents to program staff for clarification and alert the POCTC to the potential need for 

 

7 The required components of the tribal summary impact statement are specified on p. 6 of M-10-33.
14

consultation. In some cases time constraints may require a staged approach, in which a plan for 

more extensive tribal consultation is identified and a commitment is made to consult within a 

specified time frame.

Ongoing, Proactive Tribal Consultation Process

Target Audience: Treasury bureaus and offices should consult directly with tribes and tribal 

governing officials on matters that explicitly target Native Americans or Alaskan Natives, or 

affect such tribes and officials exclusively or in a significantly disproportionate manner relative 

to the majority of U.S. residents. When it is appropriate and useful, inter-tribal organizations 

representing the interests of tribes in Indian Country should be consulted as well. In most 

instances, however, reliance solely on discussions with inter-tribal organizations does not 

constitute consultation on a government-to-government basis under EO 13175.8

Methods of Consultation: Each bureau and office may develop its own method of consultation, 

following the guiding principles above. Mandatory annual progress reports to OMB, compiled 

for submission in early August, provide descriptions of methods that have been used in the past. 

The POCTC is available to assist bureaus or offices in developing or revising their tribal 

consultation plan. Consultation methods may include, but are not limited to, the following.

 Federal Register (FR) notices soliciting comments. Bureaus and offices are required to 

document tribal consultation in the preamble to Federal Register notices regarding 

agency regulations that have tribal implications. This process alone may be sufficient, for 

example, when program staff deal exclusively with highly-complex and/or sophisticated 

financial matters affecting a small number of well-known constituent groups

9

In other 

cases bureaus and offices that work directly with a variety of tribal governments and 

tribal members have developed, in consultation with tribal governments and officials, 

detailed guidelines on tribal consultation practices, regular schedules for consultation 

meetings during regional conferences, and a dedicated staff.

 

8 EO 13175 permits consultation to proceed with authorized inter-tribal organizations. However, in initial 

consultation with tribal leaders during the spring of 2010 many stressed the importance of direct communication 

with tribal officials and argued explicitly that consultation with inter-tribal organizations is not sufficient. Therefore,

the Treasury Department recommends direct outreach whenever practicable.

9

For example, the Treasury Financial Crimes Enforcement Network (FinCEN) guidance to gaming organizations is 

highly specialized, and it directly targets a relatively small number of organizations. Therefore routine requests for 

comments and guidance that includes brief mention of Indian gaming activities is often sufficient to fulfill EO 

13175. See , e.g., FIN-2990-G004, “Frequently Asked Questions, Casino Recordkeeping, Reporting and 

Compliance Reporting Requirements,” September 30, 2009, available at 

http://www.fincen.gov/statutes_regs/guidance/html/Casino_FAQs_List.html
15

FR notices requesting comments from tribal governments and officials regarding proposed 

changes in law or regulation should be published as soon as practicable after Treasury staff have 

determined that tribal consultation is necessary, and ideally within 30 days. The FR notice should 

specify a 60- to 120-day minimum comment period whenever practicable, to allow sufficient 

time for tribal leaders to consult with their members and legal counsel on any matters of 

particular concern, and to formulate a response to the notice. Whenever practicable, links to FR 

notices requesting comments from tribal governments and members, together with brief 

descriptions of other tribal consultation activities, should be sent to the POCTC to become part 

of a comprehensive record of Treasury’s activities in this regard.10

 Meetings, conference calls, videoconferences and workshops to encourage an exchange 

of views. When Treasury policies explicitly target Native American and Alaskan Native 

governments, organizations, or members, or when the issue is complex with a 

disproportionate effect on tribes and tribal members, consultation should extend beyond 

FR notices to the extent practicable. Consultation may be conducted through email, 

regular mail, telephone calls, video conferences and in-person meetings or conferences, 

as schedules and resources permit. Disparities in time zones and travel costs should be 

taken into account when scheduling phone calls and conferences, including the time 

zones of Alaskan Native tribes in the extreme west.

 Targeted outreach. Contact information for federally-recognized tribes is available on the 

Bureau of Indian Affairs web site.11 The POCTC also maintains a Treasury-specific list, 

including contact points for some inter-tribal organizations; this list is available to other 

Treasury bureaus and offices upon request. Furthermore tribal organizations often 

sponsor conferences attended by leaders and officials from many tribes. These 

conferences may, therefore, provide opportunities for agency listening sessions and/or 

presentations that are cost-effective from the perspective of tribal governments and the 

federal government.

Open process: Tribal governments may pro-actively consult with each Treasury bureau or office, 

on a government-to-government basis, regarding matters that involve tribal and federal law 

regulations, and administrative practice.

 

10 This information will provide the basis for annual reports that the Treasury Department is required to submit to 

OMB under EO 13175.

11 The Bureau of Indian Affairs, Department of Interior, maintains and regularly updates a Tribal Leaders Directory
16

 Tribal.Consult@treasury.gov. Tribal governments may channel information or concerns 

to a dedicated Treasury Department email address, Tribal.Consult@treasury.gov, or to 

the POCTC directly. These points of contact may be used only for general information 

and concerns. Specific cases involving particular tribal governments and tribal members 

must be referred to the bureau(s) or office(s) with direct jurisdiction. 

 Meetings and workshops. Intra- and inter-agency sponsorship of meetings to address 

areas of concern is encouraged to conserve resource and ensure comprehensive coverage. 
17

Appendix B: List of Programs in Various Treasury Bureaus and Offices that are Actively 

Involved in Issues affecting Tribal Governments and Members

Office of the Comptroller of the Currency

http://www.occ.treas.gov/Cdd/Nativeam

The Office of the Comptroller of the Currency (OCC) is reviewing its process independently.

Bureau of the Fiscal Service

A. Office of Financial Markets and Bureau of the Public Debt

http://www.publicdebt.treas.gov/

http://www.treasurydirect.gov/govt/reports/tfmp/tfmp.htm

http://www.treasury.gov/about/organizational-structure/offices/Pages/Office-of-FinancialMarkets.aspx

Treasury is required by statute to invest, and is investing, two Indian tribal funds and one 

“tribally related” fund from which payments are being made to several Indian tribes as well as to 

non-Indian entities. The two tribal funds currently being invested by Treasury are the Cheyenne 

River Sioux and the Lower Brule Sioux Tribes’ Terrestrial Wildlife Habitat Restoration Trust 

Funds (the “Title VI Funds”). As with the tribal funds invested by the Department of the Interior,

Treasury is required by statute to disburse amounts from the interest earned by the Title VI 

Funds to the tribes involved as requested for certain statutorily-prescribed purposes. Also, by 

statute, Treasury is required to review the investment of the funds with the two tribes involved 

on at least an annual basis, in addition to providing monthly reports to the tribes on the 

investment activities of their funds. 

The one “tribally related” fund that Treasury is required by statute to invest is the Lower 

Colorado River Basin Development Trust Fund (LCRBDTF), an Interior fund. Interior 

determines the amounts to be invested and the maturities of such investments, which are in 

Treasury securities. 

During the past year, the Office of Financial Markets (OFM) and Bureau of the Fiscal Service 

(BFS) have worked closely with other Treasury offices and also with Interior and OMB to 

address a number of investment and other issues involving the three aforementioned funds as 

well as several Indian tribal funds that by statute Treasury is required to invest. One of the issues 

was the impact, if any, of sequestration on these funds. Gary Grippo, OGFP DAS, explained how 

sequestration would affect the two Title VI funds in letters to the Tribes’ Chairmen in April,

following up on consultation calls with the BFS staff. He also discussed sequestration and its 

impact on the two new development funds to the Yankton and Santee Sioux Tribes in calls made 

in late April. On these calls, he also continued our consultation with the Tribes on the 
18

establishment and investment of the two development funds. In addition, he consulted in October

with the San Luis Rey River Indian Water Authority and the Tohono O’odham Nation regarding

Treasury’s proposal to enter into Investment Memoranda of Understanding (MOU) with Interior 

under which Interior would continue to invest the San Luis Rey Tribal Development Fund and 

the Cooperative Fund on behalf of Treasury. These MOUs have since been executed. Similar 

MOUs have been developed for the Yankton Sioux and the Santee Sioux Tribes’ development 

funds and for the LCRBDTF after consultation with the tribes involved and Interior. 

B. Financial Management Service

http://www.fms.treas.gov

The Financial Management Service’s (FMS) Customer Relationship Managers (CRMs) have 

undertaken outreach to tribal governments and businesses. CRMs serve as the central point of 

contact for Federal Program Agencies (FPAs). CRMs can help FPAs to improve governmentwide cash management practices. 

FMS administers the surety bond program for the federal government under 31 U.S.C. 9304-

9308 for companies that wish to: direct write federal bonds, reinsure federal bonds, or be 

recognized as an Admitted Reinsurer. Some tribal leaders have expressed an interest in this 

program.

Community Development Financial Institutions Fund

http://cdfifund.gov/what_we_do/programs_id.asp?programID=3

Community Development Financial Institutions (CDFIs) are non-government financial entities 

whose primary mission is to promote community development, principally by serving and being 

accountable to a low-income community, and by providing development services. To be certified 

as a Native CDFI, an organization must meet the CDFI eligibility requirements and direct more 

than 50 percent of its activities to Native communities and/or Native persons.

The Native Initiatives program serves economically distressed Native American, Alaska Native, 

and Native Hawaiian communities across the nation by providing funding to build the 

organizational capacity of Certified Native CDFIs, Emerging Native CDFIs, and Sponsoring 

Entities. As of June 30, 2012, there are 72 certified Native CDFIs.12

The Native Initiatives provides support in two ways: through Financial Assistance and Technical 

Assistance awards provided by the Native American CDFI Assistance Program (NACA 

 

12 CDFI recertification is under way. An updated count of certified Native CDFIs will be available in the fall.
19

Program), and through trainings, technical assistance, and other resources provided by the 

Capacity Building Initiative (CBI).

 Financial Assistance awards, used primarily for financial capital, are available only to 

entities that have been certified as Native CDFIs. 

 Technical Assistance grants are available to certified Native CDFIs, Emerging Native 

CDFIs, and Sponsoring Entities. Usually Technical Assistance grants are used to acquire 

products or services including computer technology, staff training, and professional 

services such as market analysis, and support for other general capacity-building 

activities. Sponsoring entities are unique to the NACA Program. They create and support 

fledgling Native organizations as they move toward CDFI certification. The CBI

sponsors a variety of trainings, webinars, and individual technical assistance on a variety 

of topics, such as small business and microenterprise lending, healthy food financing, and 

some trainings that are Native-specific. Free reference materials are also available 

through the CBI’s Resource Bank at http://www.cdfifund.gov/cbi.

The CDFI Fund , established in September 1994 under the Riegle Community Development and 

Regulatory Improvement Act, sponsors Native Initiatives designed to increase access to credit, 

capital, and financial services in Native communities. These initiatives serve to create and 

expand CDFIs primarily active in Native communities. The CDFI Fund’s authorizing statute

mandated that the CDFI Fund conduct a study of lending and investment practices on Indian 

reservations and other lands held in trust by the United States. This study recognized barriers to 

private financing, identified the impact of such barriers on access to capital and to credit for 

Native peoples, and provided options to address these barriers.

Following the November 2001 release of the CDFI Fund’s Native American Lending Study, the 

Fund formulated two chief strategies for overcoming barriers to credit, capital, and financial 

services in Native communities:

 Expanding Native Opportunities (ENO), training programs that work to develop new 

Native CDFIs, strengthen existing Native CDFIs, and assist Native CDFIs in creating 

financial education and asset building programs in Native communities. ENO has 

currently evolved and has been incorporated into the part of the larger CDFI Fund 

Capacity Building Initiative (CBI).

 The Native American CDFI Assistance (NACA) Program, a funding program that aims 

to increase the number and capacity of existing or new Native CDFIs. 
20

Through CBI, the CDFI Fund sponsored a two-year training series that finished in June 2013. 

This initiative, involving 16 Native CDFIs, was called The Leadership Journey: Native CDFI 

Growth & Excellence (The Leadership Journey). Through it Native CDFI leaders developed

leadership skills and resources to further staff growth and increase organizational performance.

Building on the success of its first Leadership program, the CDFI Fund expects to launch, in the 

fall of 2013, the Native Leadership Journey II. This initiative is designed to run for two years and 

will develop the capacity of established Native CDFI leaders to improve their organization’s 

effectiveness and performance. 

On August 6, 2012, the CDFI Fund announced awards totaling $11.47 million to NACA 

Program participants in the FY2012 funding round. NACA received 66 applications requesting 

$20.94 million for the 2012 funding round. Awardees’ primary financing activities are small 

business/venture capital, affordable housing, and consumer loans. (See the body of this report for 

specific details about 2013 applications.)

The CDFI Fund Native Initiatives website includes a link to the 2001 Native American Lending 

Study and the Native Initiatives Strategic Plan for Fiscal Years 2009-2014. The CDFI Fund is 

now building upon NALS, and researching the state of access to capital and credit in Native 

Communities. The research will provide policy-makers, Tribal governments, Tribal community 

organizations, and economic development practitioners with detailed analysis and quantitative 

research that can lead to actionable recommendations for improving access to capital and credit 

in Native Communities. The final report will be available to the public. For an example of CDFI

Fund-initiated FR consultation, see the November 30, 2012 request for comments on the new 

study on access to capital and credit in Indian Country. 

Financial Crimes Enforcement Network

http://www.fincen.gov

The Financial Crimes Enforcement Network (FinCEN) deals with complex and/or sophisticated 

financial matters that affect a small number of well-known constituent groups. Casinos are in this 

category because they are vulnerable to exploitation through money laundering activities. 

FinCEN staff works closely with tribally-owned casinos for this reason. FinCEN is part of the 

inter-agency Indian Gaming Working Group, which also includes the National Indian Gaming 

Commission, the Department of Justice, the Federal Bureau of Investigation, the Internal 

Revenue Service, and the Bureau of Indian Affairs Law Enforcement Services.
21

Internal Revenue Service

http://www.irs.gov/tribes

The overall goal of the IRS Indian Tribal Governments Office (ITG) is to use partnership 

opportunities with Indian tribal governments, including Alaska Native governments, tribal 

associations, and other federal agencies, to respectfully and cooperatively meet the tax 

administration needs of both the Indian tribal governments and the federal government. 

 Five ITG field groups consisting of tribal government specialists work in locations near 

the seats of tribal governments. 

 ITG specialists can address issues that relate to tribal governments as employers, 

distributions to tribal members, and the establishment of governmental programs, trusts 

and businesses. 

ITG has consulted extensively with tribal governments throughout the development of its 

programs and continues to lead a review of the IRS to ensure the agency complies with EO 

13175. 

In late 2012, continuing into 2013, the IRS published significant guidance on items ranging from 

the general welfare exclusion to tax exempt bonds. This guidance is discussed in the body of the 

report. Most noteworthy are the general welfare exclusion, per capita payments for certain tribal 

trust settlement proceeds, and the re-allocation process for previously forfeited authority to issue 

Tribal Economic Development Bonds.

The IRS continues to partner with tribal governments to establish Volunteer Income Tax 

Assistance (VITA) sites in their local communities. The VITA program has a three-pronged 

approach which includes financial education and asset building, tax education, and tax 

preparation. The tax preparation goal is to provide free tax preparation service for low- to 

moderate-income taxpayers. During 2013, the IRS continued to expand partnerships with tribal 

organizations and coalitions of tribal governments that share knowledge and resources to prepare 

free tax returns in their local communities.

Office of Financial Stability 

http://www.financialstability.gov

The Troubled Asset Relief Program (TARP) was established by the Emergency Economic 

Stabilization Act of 2008 (EESA). The programs created through TARP include the Legacy 

Securities Public-Private Investment Program (PPIP), to which an Alaska Native Corporation has 

served as a contractor. OFS launched PPIP to help restart the market for non-agency residential 
22

mortgage-backed securities and commercial mortgage-backed securities, thereby allowing 

financial institutions to re-deploy capital and extend new credit to households and businesses. 

PPIP originally consisted of nine carefully selected Public-Private Investment Funds (PPIFs), to 

purchase eligible legacy securities from eligible sellers under EESA. During the program, these 

fund managers established meaningful partnership roles for small businesses, as well as those 

owned by minorities and women. These roles included, among others, asset management, capital 

raising, brokers and dealers, investment sourcing, research, advisory, cash management, and 

fund administration services. For example, the Los Angeles private equity fund Oaktree Capital 

Management LP (Oaktree), which was one of Treasury’s primary PPIP contractors, subcontracted with Inupiat Eskimo-owned Arctic Slope Regional Corporation (Arctic Slope). In 

addition, Oaktree partners consulted with Arctic Slope in investment decisions.13

United States Mint

https://www.usmint.gov

http://www.usmint.gov/mint_programs/nativeamerican/

Since the beginning of the Native American $1 Coin Program in 2009, the United States Mint 

has been actively engaged in consultation with Native American stakeholders to ensure that the 

Native American $1 Coin themes and designs are appropriate, significant, and historically 

accurate. The Native American $1 Coin Act (Act) (Pub. L. No. 110-82 (Sep. 20, 2007)), as 

codified at 31 U.S.C. § 5112(r)), authorizes the Secretary of the Treasury to mint and issue 

circulating $1 coins commemorating the important contributions made by Native American 

tribes and individual Native Americans to the development and history of the United States. The 

Act mandates a reverse design with an image emblematic of one important Native American 

person or Native American contribution each year. The obverse bears the image of Sacagawea, a 

design that first appeared on the Golden Dollar in 2000. The United States Mint develops design 

themes in consultation with the National Museum of the American Indian, the National Congress 

of the American Indian (NCAI), the U.S. Senate Committee on Indian Affairs (CIAS), the 

Congressional Native American Caucus (CNAC) of the U.S. House of Representatives, and the 

Citizens Coinage Advisory Committee (CCAC). In accordance with the Act, the Secretary of the 

Treasury then selects reverse designs after consulting with the NCAI, CIAS, CNAC, CCAC, and 

the U.S. Commission of Fine Arts (CFA). While the Federal Reserve Banks do not order Native 

American $1 Coins for circulation, the United States Mint offers these coins in various 

quantities, qualities, and packaging options through its numismatic program. 

Additionally, the United States Mint has been working very closely with 32 eligible Native 

American tribes to develop themes and designs for each tribe’s Code Talkers Recognition 

 

13 A more complete description of the PPIP is available at the PPIP Purpose and Overview page of the Financial 

Stability section of the Treasury.gov website.
23

Congressional Gold Medal. Specifically, the Code Talkers Recognition Act of 2008, Public Law 

110-420 (Oct. 15, 2008), requires the Secretary of the Treasury to strike Congressional Medals to 

recognize the dedication and valor of Native American Code Talkers to the United States Armed 

Services during World War I and World War II. The United States Mint will strike a unique gold 

medal for each Native American tribe that had a member who served as a code talker. The 

bureau also will strike silver duplicate medals to be presented to the specific code talkers or their 

next of kin, and bronze duplicates to be available for sale to the public. The obverse designs are 

dedicated to the military service of the Native American code talker, while the reverse designs 

highlight the unique culture and heritage of the code talker’s tribe. The United States Mint’s 

design recommendations for the Code Talkers Recognition Congressional Gold Medals, which 

the bureau presents to the Secretary of the Treasury for his approval, are determined based on 

consultation with the senior leaders from each eligible tribe, the CCAC, and the CFA. The 

United States Mint plans to complete the design evaluation and approval process, as well as 

strike all 32 Code Talkers Recognition Congressional Gold Medals, by this November.
24

Appendix C: Possible Criteria for Tribal Consultation

Specific criteria that Treasury bureaus and offices may use to identify legislation and regulations 

requiring consultation with sovereign American Indian and Alaskan Native (AI/AN) tribes are 

suggested below, together with illustrative examples.

1. Programs or policies that target AI/ANs explicitly or directly, and programs that target 

groups and activities in which AI/ANs are disproportionately represented, should engage 

in consultation early in the regulation drafting process. For example:

o Policies that relate to the definition of permissible uses for which tribal 

governments can issue tax exempt debt.

o Policies that specifically deal with the taxation of benefits provided by tribal 

governments, such as health care.

o Programs that seek to increase to increase the availability of capital to Native 

American owned or controlled financial institutions through additional support for 

Native American owned CDFIs, directly or as part of a targeted initiative toward 

similarly situated CDFIs. 

o Programs that seek to prevent exploitation of Native American tribes and tribal 

businesses through criminal and terrorist activities, such as money laundering 

activities that target tribally-owned gambling institutions.14

2. Tribal consultation process may be required when AI/AN tribes request consultation on 

substantive issues that are unique to tribal governments, when consultation is requested to 

address regulatory or legislative activities that are likely to have direct and identifiable 

economic impacts on Indian tribes, or when it is evident or should be evident that the 

contemplated regulations or legislation could preempt tribal law. 

 

14 See Casino Issues, posted on the IRS web site. For earlier background see “Anti-Money Laundering Controls for 

Indian Tribal Casinos,” February 22, 1996.