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Department of the Treasury Progress Report to OMB

on Tribal Consultation October 2018

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 (Consultation and Coordination with Indian Tribal Governments)

(EO13175).

1 EO 13175 requires an agency to establish “an accountable process to ensure

meaningful and timely input by tribal officials in the development of regulatory policies that have

tribal implications.”2 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.

The Department of the Treasury (Treasury) is committed to robust tribal consultation. Consistent 

with its tribal consultation plan of action, Treasury has engaged in careful and extensive

consultation on policies with tribal implications during the August 2017 through August 2018

time period. 

The Treasury Tribal Consultation Process

Treasury supports the Fundamental Principles set forth in Section 2 of EO 13175. Treasury 

published a draft tribal consultation policy in the Federal Register on December 3, 2014, and 

after making several changes in response to comments from Indian Tribal Governments and 

tribal organizations, formally adopted a consultation policy on September 23, 2015. See 

Appendix A. The tribal consultation policy is applicable Department-wide. 

Three principles guide Treasury’s tribal consultation process and policies:

• Treasury is committed to establishing 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 direct and 

identifiable economic impacts 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 potential impacts of these 

activities on tribes and American Indians and Alaskan Natives.

• Treasury is committed to efficiently developing and issuing regulations and guidance.

 1 Exec. Order No. 13,175, 65 Fed. Reg. 67,249 (Nov. 9, 2000), available at http://www.gpo.gov/fdsys/pkg/FR-2000-

11-09/pdf/00-29003.pdf. 2 EO 13175, § 5(a).
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To further these goals, Treasury’s consultation policy provides that each bureau and office should 

maintain a well-defined set of procedures to achieve the following core objectives:

(1) A timely identification of matters that may require tribal consultation.

(2) A timely process for determining whether consultation is required.

(3) An ongoing, proactive tribal consultation processes.

Agency Point of Contact

The agency Point of Contact for Tribal Consultation (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 the issuance of Treasury policies. 

Consultation

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

Department:

• 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 based on mutual respect.

• Tribal leaders regularly express concerns about tax code matters affecting tribal governments, 

tribal corporations, and tribal members. 

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

development. In particular, they underscore their interest in the structure and allocation of 

authority to issue tax-favored bonds under the Tribal Economic Development Bond (TEDB) 

program, and support for the Community Development Financial Institutions Fund (CDFI

Fund) Native Initiatives Program.

These points have been raised during consultation since early 2009. As tribal consultation 

continues, Treasury will address tribal leadership concerns. 
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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 must be able to contact Treasury to request a meeting, ask about a

specific program, or convey their views about a particular policy matter. Treasury must be able to

communicate clearly, consistently, and transparently with tribal leaders, and solicit tribal views 

on policy matters that have tribal implications.

To support these objectives, several institutional structures are now in place to facilitate 

government-to-government communication with tribal leaders:

• Treasury maintains an email address, Tribal.Consult@Treasury.gov, to which any tribal 

leader may send a tribal consultation request.

• Treasury has a dedicated tribal consultation webpage that is updated with information for

tribal leaders and other interested parties about relevant policy statements, reports on recent

consultation activities, and reports to Congress.

• Treasury’s consultation with tribal leaders has come to fruition with final decisions or 

guidance on several key issues: the Treasury Secretary’s appointment of tribal leaders to the 

Treasury Tribal Advisory Committee (TTAC), which was newly chartered in 2015 in 

compliance with the Tribal General Welfare Exclusion Act of 2014 In addition, Treasury

continues to hold general consultations and listening sessions to solicit input from tribal 

leaders on matters of concern to them, and to enable tribal leaders to discuss these matters 

directly with the appropriate Treasury officials. 

• Treasury participates actively in the annual White House Tribal Nations Conference, in 

meetings of the White House Council on Native American Affairs and its subcommittees, and 

in inter-agency working groups that address Native American concerns.

Treasury Tribal Advisory Committee

On September 26, 2014, the President signed into law the Tribal General Welfare Exclusion Act 

of 2014 (TGWEA). Treasury implemented this legislation by consulting with tribal leaders 

through multiple channels. Among other provisions, the TGWEA requires that the Department 

establish a Treasury Tribal Advisory Committee (TTAC). The TTAC committee members advise 

the Treasury Secretary on the taxation of Indians, the training of Internal Revenue Service field 

agents, and instruction on the General Welfare Exclusion for Native American finance officers. 

The TTAC Charter was filed in February 2015 and renewed in February 2017. 

The TTAC consists of seven members. Three are recommended by the Secretary of the Treasury. 

Four members are recommended by the majority and minority leadership of the Senate Committee 

on Finance and the House Committee on Ways and Means. The Secretary’s recommendations 

serve on the TTAC for a two-year term. The Congressional recommendations serve for a fouryear term. 
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Tribal Representatives to the TTAC:

• Mr. W. Ron Allen of the Jamestown S’Klallam Tribe (Washington State)

• Ms. Rebecca Benally of the Navajo Nation (Utah)

• Ms. Sharon Edenfield of the Confederated Tribes of Siletz Indians (Oregon)

• Ms. Lacey Horn of the Cherokee Nation (Oklahoma)

• Ms. Patricia King of the Oneida Tribe (Wisconsin)

• Mr. Eugene Magnuson of the Pokagon Band of Potawatomi Indians (Michigan)

• Ms. Marilynn Malerba of the Mohegan Tribe (Connecticut)

Tribal Consultation Activities since August 2017

• On December 4, 2017, the Point of Contact for Tribal Consultation (POCTC) conducted an 

in-person Tax Reform Listening Session. Tribal leaders presented issues and 

recommendations on matters related to taxation and economic development in Indian 

Country. The session was attended by several high-level Treasury officials and over 60 

Tribal Leaders.

• On February 8, 2018, Treasury announced the seventh and final tribal representative for 

the Treasury Tribal Advisory Committee (TTAC).

Policy Responses to Tribal Consultation

On September 18, 2015, the Department of the Treasury and IRS issued final guidance 

(Notice 2015-67) regarding per capita distributions made to members of Indian tribes from 

funds held in trust by the Secretary of the Interior. The final guidance clarifies that, 

generally, these per capita payments will not be subject to federal income tax. Consultation 

began in 2012, in response to feedback and concerns from tribal nations about specific 

Indian tribal trust settlements.

After publication of Notice 2015-67, tribes and the Department of the Interior (DOI) requested 

clarification from the Service regarding direct pay leases, which were not expressly addressed 

in the Notice. The Bureau of Indian Affairs (BIA) within DOI manages tribal leases and other 

contracts on Indian trust lands. Under current BIA regulations, the BIA may approve direct 

payment to a tribe from the leases and contracts' operators rather than depositing these 

payments into a DOI-maintained tribal trust account. Funds acquired through these direct pay 

leases and other contracts are derived from tribal trust resources. Direct pay leases and 

contracts are approved by the same process or are subject to the same BIA-approved standards 

as leases and contracts under which the funds are deposited into tribal trust accounts. (Direct 

pay arrangements are often preferable for both tribes and DOI because they enable faster 
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payments and eliminate the need for DOI to manage the funds). Treasury and IRS officials 

held listening sessions by telephone and at national tribal organization conferences to learn 

more about the issue. In response, in June of 2016, the Service issued Interim Guidance 

Memorandum TEGE 04-0516-0009 instructing IRS employees to apply the same standards set 

forth in Notice 2015-67 when determining whether per capita distributions of direct pay lease 

funds are subject to taxation.

During the listening sessions on direct pay leases, tribes also informed us that there is another 

DOI tribal lease program that is administered under the HEARTH Act. The HEARTH Act 

creates an alternative and voluntary tribal land leasing process. Instead of direct approval of 

each individual tribal lease, the Act requires that the Secretary of the Interior approves tribal 

leasing regulations for each participating tribe. Treasury and IRS officials again held 

listening sessions with tribal leaders to more fully understand the issue. In response, in June 

of 2017, the IRS issued new Interim Guidance Memorandum TEGE-04-0617-0015 to replace 

TEGE 04-0516-0009, which expands the favorable income tax treatment set forth in Notice 

2015-67 to both Direct Pay and HEARTH Act lease arrangements.

Financing Tribal Government Investments

Tribal Economic Development Bonds (TEDBs)

Treasury and the IRS have released new guidance that allows Indian tribal governments 

increased flexibility in the use of Tribal Economic Development Bonds (TEDBs). Since 

publication of Notice 2015-83 on December 4, 2015, Tribes may now finance their investments 

through “draw-down” loans, in which bonds are issued in phases over time. Indian tribal 

governments have up to three years to use the full bond volume cap allocations if they issue at 

least 10% of the total allocated authority within the first six months, and 50% of the total 

amount within two years. This new guidance, Notice 2015-83, was issued on December 4, 

2015.

On December 1, 2015, before this guidance was issued, the total outstanding TEDB authority 

available to tribal governments was $1.4 billion, or 70 percent of the $2 billion originally 

allocated under the American Recovery and Reinvestment Act of 2009 (ARRA). By 

November 21, 2018, the total available TEDB authority was roughly $359 million. That is, 

$1,051 billion in unused TEDB authority, over seventy-five percent of the outstanding totals, 

has been allocated to tribal governments during the thirty-six-month period between December 

1, 2015 and November 21, 2018.

It is too soon to tell whether these more recent allocations will increase the rate of successful 

bond issuance by tribal governments. But we believe this new approach may be helpful to 

smaller tribes, as it has been for smaller municipalities, as the economy continues to strengthen

while interest rates remain relatively low.

In addition, recently, an issue has arisen regarding a potential need for public guidance to 

clarify whether Indian tribal governments may issue TEDBs to refinance outstanding TEDBs 
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in current refunding issues without additional bond volume cap similar to certain other 

targeted bond programs. The Treasury-IRS’s 2018-2019 Priority Guidance Plan released on 

November 8, 2018, includes this issue as a priority guidance item. 

In the Administration’s Fiscal Year 2016 Revenue Proposals, Treasury recommends that 

standards similar to those authorized for TEDBs be adopted on a permanent basis. The 

Department’s 2011 Report to Congress on Tribal Economic Development Bonds also proposed 

these changes.

The 2011 Report to Congress identifies the following factors constraining tribes’ bond issuance: 

limited income and property tax bases, shared jurisdiction with states for sales tax revenues, 

tribes’ inability to offer land held in trust as collateral, transaction costs due to securities law 

registration requirements for public offerings, and limited historical issuances and 

performance.3 Credit market weakness during the recession exacerbated these problems.

The Report includes four key recommendations. First, Treasury proposes adopting for tribal 

governments, on a permanent basis, the State or local government standard for tax-exempt 

governmental bonds. This is generally embodied in the limited authorization for TEDBs for 

purposes of Indian tribal governmental eligibility to issue tax-exempt governmental bonds,

without a bond volume cap on such bonds. Second, it recommends allowing Indian tribal

governments to issue tax-exempt private activity bonds for the same types of projects and 

activities as are allowed for state and local governments under a tailored national bond volume 

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

under current law. Finally, TEDB gambling facility restrictions would be retained. The Report 

concludes 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

Consultation with tribal leaders preceded the development and announcement of these 

recommendations. Treasury’s objective is to help Indian tribes access these bonds to promote 

job and economic promote growth in Indian Country.

 3 As noted in the Report, state and local governments are exempt from securities law registration requirements 

under Section 3(a) (2) of the Federal Securities Act of 1933. Indian tribal governments have no comparable 

exemption, so they must either register their securities with the Securities and Exchange Commission or raise funds 

in private placements. See Report to Congress on Tribal Economic Development Bonds, “Credit Challenges Facing 

Indian

Tribal Governments,” pp. 14-15.

4 Report, p.2.
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Indian Employment Credit (IEC)5

The Indian Employment Credit (IEC), a business income tax credit, is available to employers 

who hire enrolled members of Indian tribes, and spouses of enrolled tribal members, if the 

credit- eligible employees live on or near an Indian reservation and work for their employer on 

that reservation. The credit is available to qualified workers earning $45,000 or less annually 

and not employed in the gaming industry.

Employers may not take the Work Opportunity Tax Credit (WOTC) and the IEC concurrently 

for the same employee.

Community Development Financial Institutions Fund

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

whose primary mission is to promote community development by providing financing and

development services to low-income communities, and by being accountable to those 

communities through their governing or advisory boards.

All of the CDFI Fund’s programs have been used to support community development in 

economically distressed Native American, Alaska Native, and Native Hawaiian communities 

(Native Communities). Several of the CDFI Fund’s programs were specifically involved in 

Native Communities in the past year as discussed below. 

Native Initiatives

The Native Initiatives program serves economically distressed Native Communities across the

nation by providing funding to build the organizational capacity of Native CDFIs. As of July 31, 

2018, there are 72 certified Native CDFIs with assets totaling more than $1.164 billion. To be

certified as a Native CDFI, an organization must meet the CDFI Fund’s certification eligibility

requirements and direct more than 50 percent of its activities to Native Communities and/or

Native persons.

Background

 

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 support the creation and 

expansion of Native 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 

 5 The IEC does not apply to tax years beginning after December 31, 2017. As of December 13, 2018, legislation 

extending the IEC has not been enacted.
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access to capital and 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 

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

financial services in Native Communities:

1. Expanding Native Opportunities: training programs that develop new Native CDFIs, 

strengthen existing Native CDFIs, and help Native CDFIs create financial education and 

asset building programs in Native communities, which is currently administered through 

the Capacity Building Initiative (CBI); and 

2. The Native CDFI Assistance Program (NACA Program): a funding program that aims to 

increase the number and capacity of existing or new Native CDFIs. Since its 2001 

launch, the NACA Program has provided more than $136 million in awards to help 

Native CDFIs deliver financial services and financial products to their communities.

The CDFI Fund commissioned the Access to Capital and Credit in Native Communities Report 

(Report) as a follow-up to its 2001 Native American Lending Study. The first part of the Report, 

which was published in May 2016, examined recent successes in the effort to improve access to 

capital and credit in Native Communities as well as what could be done to build on that success. 

The second part of the Report, titled Access to Capital and Credit in Native Communities: A 

Data Review (Data Review), was released in February 2017. The Data Review uses a range of 

data sets to document the evolution of Native Communities’ capital access. Ultimately, the twopart study is intended to provide research and analysis in support of further improvements in 

access to capital and credit in Native Communities.

Today, the CDFI Fund’s Native Initiatives provide support in two ways: 1. through Financial 

Assistance and Technical Assistance Awards provided by the NACA Program, and 2. through 

training, 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 Awards are available to certified Native CDFIs, Emerging Native

CDFIs, and Sponsoring Entities. Technical Assistance Awards are typically used to acquire

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

such as hiring a consultant to conduct a market study; 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.

• Through the CBI, CDFIs and Native CDFIs are provided trainings, webinars, and individual 

technical assistance on multiple topics, such as small business and microenterprise lending, 

expanding services into underserved areas, and Native-specific trainings. Free reference

materials are available through the CBI’s Resource Bank. 
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Annual Activity

In fiscal year (FY) 2017, the NACA Program awarded over $15.5 million to 38 organizations 

headquartered in 19 states. $12.9 million of awards were provided in the form of Financial 

Assistance, while $2.6 million was awarded for Technical Assistance. The awardees were 

composed of 33 Loan Funds, one (1) Credit Union, and four (4) Sponsoring Entities.

Additionally, throughout 2017 and 2018, CDFI Fund leadership and staff have routinely engaged 

Native CDFIs, national Native American organizations, and other federal agencies serving 

Native Communities. These engagements were intended to both receive direct feedback from 

the Native CDFI industry and increase the CDFI Fund’s capacity to increase access to capital 

and credit in Native Communities. 

On September 26, 2017, CDFI Fund staff participated in the Annual Native CDFI Convening at 

the 2017 Opportunity Finance Network Conference, held in Washington, DC. CDFI Fund 

leadership and NACA Program staff participated in a panel discussion with representatives of 

Native CDFIs from across the United States. CDFI Fund staff both provided an update on its 

planned activities for FY 2018 and participated in a dialogue with Native CDFI staff and 

leadership in order to receive feedback on how the CDFI Fund could better serve the Native 

CDFI Industry. On October 12, 2017, the CDFI Fund also participated in the First Annual 

Native CDFI Network Member Meeting, with CDFI Fund Director Annie Donovan providing an 

overview of the findings of the Access to Capital and Credit in Native Communities Report and 

its supporting Data Review. Additionally, NACA Program staff participated in a Q&A session 

with Native CDFI Network members and provided an update on the results of the FY 2017 

NACA Funding Round. 

CDFI Fund leadership and staff also visited Native Communities across the United States 

throughout 2017 and 2018 in order to gain first-hand insight into how Native CDFIs are 

increasing access to capital and credit in their communities. 

In September of 2017, Director Donovan and NACA staff visited the Four Bands Community 

Fund, Lakota Funds, Lakota Federal Credit Union, and Mazaska Owecaso Otipi Financial, four 

Native CDFIs located on the Cheyenne River and Pine Ridge Indian Reservations in South 

Dakota. CDFI Fund staff participated in site visits to economic development projects financed 

by the four Native CDFIs and listened to success stories of individuals and businesses that 

received both financial products and technical assistance from the organizations.

In October of 2017, CDFI Fund Director Annie Donovan and NACA Program staff attended the 

Alaska Federation of Natives (AFN) Convention in Anchorage, Alaska and visited two Native 

CDFIs in the state, Alaska Growth Capital and Cook Inlet Lending Center. During the AFN 

Convention, Director Donovan provided an update on the CDFI Fund’s Native Initiatives and 

participated in a roundtable discussion of emerging and certified Native CDFIs. CDFI Fund staff 

also visited a long-term elder care facility in Kotzebue, AK, financed by Alaska Growth Capital 

and the home offices of Cook Inlet Lending Center in Anchorage, AK.

The CDFI Fund also engaged with the Native CDFI industry through a variety of national 
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gatherings of Native American financial institutions in order to increase awareness of the CDFI 

Fund’s Native Initiatives. In April of 2018, NACA Program staff participated in a panel 

discussion at the Native American Financial Officers Association Annual Conference titled 

“Seeding Capital for Growing an Economy,” intended to explore options for Native 

Communities exploring development of financial institutions. The CDFI Fund also played a role 

in the first annual Native American Financial Institutions Gathering, co-hosted by the Federal 

Reserve Bank of Minneapolis’ Center for Indian Country Development and the Federal Reserve 

System Partnership for Progress. Director Donovan provided remarks regarding Native CDFI 

access to the CDFI Fund’s programs at the Gathering, and NACA Program staff participated in a 

panel to provide administrative updates on behalf of the CDFI Fund. 

Capital Magnet Fund

The Capital Magnet Fund competitively awards funds to CDFIs and qualified non-profit housing 

organizations to finance affordable housing activities, as well as related economic development 

activities and community service facilities. Award recipients are able to utilize Capital Magnet 

Fund awards to create financing tools such as loan loss reserves, loan funds, equity funds, risksharing loans, and loan guarantees. Awards must be used to leverage housing and economic 

development investments at least ten times the size of the award amount.

In FY 2017, the Tohono O’odham KiKi Association (TOKA), the tribally designated housing 

entity of the Tohono O’odham Nation, located in south central Arizona, received a $900,000 

Capital Magnet Fund award. Established in 1962, the TOKA is solely responsible for developing 

and managing affordable housing for the Tohono O’odham Nation tribal members. TOKA is 

using its award to capitalize an Affordable Housing Fund to develop housing for low- and very 

low-income renters on the reservation.

New Markets Tax Credit Program

 

The CDFI Fund’s New Markets Tax Credit Program (NMTC Program) provides incentives to 

taxpayers with Federal tax liabilities to invest in Community Development Entities (CDEs) that 

were awarded allocations of New Markets Tax Credits (NMTCs). The proceeds from the 

taxpayers’ purchase of the NMTCs (Qualified Equity Investments) are used to make loans, equity 

investments and/or provide financial counseling and other related services to businesses located in 

Low-Income Communities. NMTCs are used to provide financing to for-profit and non-profit 

businesses located in Low-Income Communities (generally defined as Census tracts with poverty 

rates of greater than 20 percent or with median family incomes of less than 80 percent of the area 

median family income). All certified Native CDFIs are eligible to be certified as CDEs.

The NMTC Program is responsive to its legislative mandate, the Tax Relief and Health Care Act 

of 2006, which requires proportional allocation of NMTC authority to non-metropolitan 

counties. While current legislation does not include set-asides for minorities or indigenous 

peoples, the CDFI Fund has found that NMTC investments in Native lands are proportionate, 

reflecting the share of the U.S. population living on Native lands. From 2004 to 2017, NMTC 

Program investments in Native lands totaled $991.7 million.
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CDEs awarded allocations in the calendar year 2017 Round (announced February 2018) 

committed to investing $52 million in Federal Indian Reservations, Off-Reservation Trust Lands, 

Hawaiian Home Lands, or Alaska Native Village Statistical Areas. 

Following up on the success of the FY 2017 contract providing specialized training and Technical 

Assistance to minority- and Native-owned or controlled CDEs, in May 2018, the CDFI Fund 

participated in a one-day workshop hosted by the Federal Reserve Bank of Minneapolis’ Center 

for Indian Country Development. The workshop, “Making the New Markets Tax Credit Work in 

Native Communities,” was attended by 43 individuals representing Native entities including 

CDFIs, CDEs, and banks as well as others working in Native Communities. 

Bank Enterprise Award Program

The CDFI Fund’s Bank Enterprise Award Program (BEA Program) provides monetary awards to 

FDIC-insured depository institutions that demonstrate increased investment in certified 

Community Development Financial Institutions (CDFIs) or in their own lending, investment, or 

service-related activities (qualified activities) in communities where at least 30 percent of the 

population lives at or below the national poverty level and where the unemployment rate is at 

least 1.5 times the national average. 

Award amounts are a percentage of the increase in the amount of investments in qualified 

activities from one annual reporting period to the next.

Institutions that receive awards must reinvest those award dollars in additional BEA Program 

qualified activities.

The BEA Program’s authorizing legislation includes geographic areas where land is held by 

incorporated Native groups, regional corporations, and village corporations (as defined in and 

pursuant to the Alaska Native Claims Settlement Act), public domain Indian allotments, and 

former Indian Reservations in the State of Oklahoma.

The CDFI Fund’s FY 2017 BEA Program awards, announced in June 2018, included two FDICinsured Native CDFIs that received awards. Bank 2, located in Oklahoma, received an award of 

$225,984; and Native American Bank, N.A., located in Colorado, received an award of 

$233,387. Each bank will use the award to reinvest in additional BEA qualified activities. 

Conclusion

Treasury monitors its tribal consultation process in order to fulfill the mandate of EO 13175, and 

will propose updates to its process as may be appropriate. Treasury’s process is working 

effectively to ensure meaningful consultation and collaboration with tribal officials in policies that 

have tribal implications.
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Appendix A: Treasury Department Tribal Consultation Policy

In furtherance of Executive Order 13175, “Consultation and Coordination with Indian Tribal 

Governments,” 65 FR 67249, issued by President Clinton on November 6, 2000, and the 

Presidential Memorandum for the Heads of Executive Departments and Agencies on Tribal 

Consultation, 74 FR 57881, signed by President Obama on November 5, 2009, the U.S. 

Department of the Treasury (Treasury) establishes this Tribal Consultation Policy (Policy). The 

Policy outlines the guiding principles for all Treasury bureaus and offices engaging with Tribal 

Governments on matters with Tribal Implications.

I. Definitions 

A. “Indian Tribe” refers to an Indian or Alaska Native tribe, band, nation, pueblo, village, or 

community that the Secretary of the Interior acknowledges to exist as an Indian Tribe pursuant to 

the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a.

B. “Tribal Government” refers to the governing body of an Indian Tribe.

C. “Tribal Consultation” (or “Consultation”) involves the direct, timely, and interactive process 

of receiving input from Indian Tribes regarding proposed Treasury actions on Policies that have 

Tribal Implications.

D. “Policies that have Tribal Implications” has the same meaning as used in Executive Order 

13175, and refers to Treasury regulations, published guidance, or other policy statements or 

actions that have substantial direct effects on one or more Indian Tribes, on the relationship 

between the Federal Government and Indian Tribes, or the distribution of power and 

responsibilities between the Federal Government and Indian Tribes. It does not include policy 

matters of general applicability that may have an impact on Indian Tribes or their members; 

however, Treasury may consider Consultation on such matters under the circumstances described 

in Section III.A.

Show citation box

E. “Tribal Official” refers to an elected, appointed, or designated official or employee of the 

governing body of an Indian Tribe, or an authorized inter-tribal organization.

II. Guiding Principles 

A. The United States recognizes the right of Indian Tribes to self-government, and their inherent 

sovereign powers over their members and territories. The principle of consultation has its roots 

in the unique relationship between the federal government and the governments of Indian Tribes. 

This government-to-government relationship has a more than 200-year history, and is built on 

the foundation of the U.S. Constitution, treaties, legislation, executive action, and judicial 

rulings. Most recently, consultation was recognized in Executive Order 13175 and in the 

November 5, 2009 Presidential Memorandum on Tribal Consultation.

B. Treasury is committed to strengthening the government-to-government relationships between 

the United States and Indian Tribes. Treasury recognizes that agency policies, programs, and 
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services may affect Indian Tribes and is committed to consulting with Tribal Officials with 

regard to Treasury Policies that have Tribal Implications. This policy will complement, not 

supersede, any existing laws, rules, or regulations that guide existing consultation processes with 

Indian Tribes.

C. Tribal Consultation will inform Treasury's development of regulations, published guidance, 

and other policy statements or actions, as it will enhance Treasury's understanding of the 

potential impacts of these activities on Indian Tribes.

D. Treasury is committed to developing and issuing regulations and guidance in a timely manner.

III. Consultation Policy 

A. Statement of Policy

Treasury will consult with Tribal Officials prior to implementing Policies that have Tribal 

Implications. While not required by this Policy or EO 13175, when specifically requested, 

Treasury also may consult with Tribal Officials regarding policy matters of general applicability 

that may have an impact on Indian Tribes or their members. Treasury may also conduct listening 

sessions, meetings with individual Tribes, and informal discussions with Tribal Officials on 

matters of concern.

The Tribal Consultation process should achieve the following core objectives: (1) Timely 

identification of policy matters that may warrant Tribal Consultation; (2) implementation of a 

process that is accessible and convenient to Tribal participants; and (3) development of 

meaningful, transparent, and accountable dialogue involving the appropriate participants.

Consistent with EO 13175, Tribal Consultation is not required for actions to enforce 

requirements administered by the agency or actions to penalize violations of these requirements, 

even if the actions impact multiple Indian Tribes or members of multiple Indian Tribes. Actions 

that do not require Tribal Consultation include, but are not limited to:

• Administrative orders or practices involving penalties or equitable or similar relief to 

ameliorate the effects of prior violations or ensure compliance;

• Administrative orders that impose specialized requirements of limited duration;

• Audits, examinations, collections, litigation, or investigations; and

• Internal agency guidelines with respect to such matters.

B. Role of the POCTC

The POCTC is available to assist Treasury bureaus and offices in the identification of policy 

matters that may be appropriate for Tribal Consultation. OGC is also available to assist in 

resolving internal questions related to Tribal Consultation matters.
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C. Procedures for Evaluating and Initiating Consultation

1. Treasury bureaus and offices should conduct Tribal Consultation with respect to Policies that 

have Tribal Implications, including early outreach to solicit comments from appropriate Tribal 

Officials who may be substantially affected by changes in Treasury regulations, published 

guidance, or other policies under consideration. Program staff and legal counsel should assist in 

the identification of policy matters that are likely to require Tribal Consultation. Generally, every 

effort should be made to provide sufficient notice prior to scheduling Consultation, and the 

POCTC or Treasury office or bureau conducting a Consultation should inform Tribal Officials as 

soon as practicable if exceptional circumstances, such as legislative or regulatory deadlines or 

other factors beyond Treasury's control, warrant an abbreviated period of advance notice.

2. Tribal Consultation will be conducted by Treasury officials who are knowledgeable about the 

matters at hand and authorized to speak for the Department. 

3. A phased approach to Tribal Consultation may be appropriate in some matters, in which a plan 

for more extensive Tribal Consultation is identified and a commitment is made to consult within 

a specified time frame.

4. Treasury bureaus and offices should notify the POCTC in advance of final actions on policies 

that may have Tribal Implications. The POCTC may advise on the potential need for Tribal 

Consultation with respect to such matters.

5. With respect to regulations and published guidance on matters that have Tribal Implications, 

to the extent practicable and permitted by law, Treasury will consult with Tribal Officials early 

in the process of developing such regulations or guidance. These Consultations should seek 

comment on compliance costs as appropriate to the nature of the regulation or guidance under 

development. The timing, nature, detail, and extent of Consultation will depend on the regulation 

or guidance involved.

D. Methods of Consultation

Tribal Consultation may include, but is not limited to, one or more of the following:

• Federal Register (FR) notices or other published guidance soliciting comments. Tribal 

Consultation opportunities may be announced in FR notices and other published guidance, 

including guidance published in the Internal Revenue Bulletin. FR notices and other published 

guidance requesting comments from Tribal Officials should be published as soon as practicable 

after Treasury determines that Tribal Consultation is appropriate. When practicable, a comment 

period of 60 to 120 days will be provided, to allow sufficient time for Tribal Officials to consult 

with their members and legal counsel on any matters of concern.

• Meetings, written correspondence, conference calls, videoconferences, and workshops to 

encourage an exchange of views. Tribal Consultation may also be conducted through email, 

regular mail, telephone calls (including conference calls), video conferences, and in-person 
15

meetings or conferences, as schedules and resources permit. Where appropriate, intra- and interagency meetings also may be utilized to address areas of concern, conserve resources, and ensure 

comprehensive coverage of an issue. Disparities in time zones and travel costs, including those 

of Alaskan Native tribes, will be taken into account when scheduling phone calls and 

conferences.

• Targeted outreach. Treasury officials or the POCTC may also directly contact Tribal Officials 

to discuss Policies that have Tribal Implications. In addition, as resources and schedules permit, 

Treasury officials may attend conferences sponsored by inter-tribal organizations to participate 

in agency listening sessions and/or to present on issues of concern to Indian Tribes.

E. Process for Tribal Officials to Request Consultation

Tribal Officials are encouraged to contact directly the appropriate Treasury officials, on a 

government-to-government basis, to seek Consultation on Policies that have Tribal Implications. 

Consultation requests may also be addressed to the POCTC, who may direct the matter to 

additional Treasury officials, as appropriate. Consultation requests to the POCTC will be 

acknowledged within a reasonable period. The POCTC also may be contacted with general 

concerns or requests for information, and may refer specific policy matters to the Treasury 

bureaus or offices with direct jurisdiction, as appropriate. The POCTC can be reached at 

Tribal.Consult@treasury.gov. 

IV. Judicial Review 

This Policy is intended only to improve the internal management of Treasury, and is not intended 

to create any right, benefit, or trust responsibility, substantive or procedural, enforceable at law 

by a party against Treasury or any person.
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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

The Office of the Comptroller of the Currency (OCC) continues to review and address any issue 

raised by the Native American community. Agency staff participate on ad hoc basis in Native 

American conferences on issues related to banking and community development. The OCC 

maintains an ongoing relationship with several major Native American, or Native-focused, 

organizations, such as the Native American Finance Officers Association, the National 

Congress for American Indians, and The Center for Indian Country Development. And the 

OCC’s Community Affairs division maintains a Native American Banking Resource Directory 

(http://www.occ.treas.gov/Cdd/Nativeam) containing various OCC publications on Native 

American banking topics.

Office of Financial Markets and Bureau of the Public Debt, Bureau of the Fiscal Service

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 currently investing in four Indian tribal trust funds: the Cheyenne River Sioux and 

the Lower Brule Sioux Tribes’ Terrestrial Wildlife Habitat Restoration Trust Funds (the “Title VI 

Funds”), and the Yankton Sioux and Santee Sioux Tribes’ Tribal Development Trust Funds (the 

“Development Funds”). 

For the Title VI Funds, Treasury is required by statute to disburse amounts from the interest 

earned by the tribes involved as requested for the statutorily-prescribed purposes. Treasury is also 

statutorily required to annually review the investment of the funds with the four tribes involved, 

and to provide monthly reports to the tribes on the investment activities of their funds.

On October 1, 2013, Treasury created the Development Funds and deposited in those Funds the 

principal amount as defined in statute plus, after consultation with the tribes, an amount of 

interest as if the Funds had actually been invested for the 10 years prior. Treasury is required to 

invest the funds and the Department of the Interior is charged to disburse the interest amounts to 

these tribes. After consultation with the tribes, Treasury entered into Investment Memoranda of 

Understanding (MOU) with Interior under which Interior would invest the Development Funds 

on behalf of Treasury. Treasury has also executed an MOU with Interior to invest the Lower 

Colorado River Basin Development Trust Fund, a tribally-related fund. 

The Office of Federal Program Finance (OFPF) and Bureau of the Fiscal Service (BFS) work 

closely with other Treasury offices, Interior and OMB to address any investment issues involving 

the four aforementioned funds as well as several Indian tribal funds that, by statute, Treasury is 

required to invest.
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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, since they are vulnerable to exploitation through money laundering activities. For 

this reason, FinCEN staff works closely with tribally-owned casinos. 

Internal Revenue Service (additional information)

http://www.irs.gov/tribes

Within the IRS, the Indian Tribal Governments Office (ITG) uses 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 Indian 

tribal governments and the federal government.

• Three 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 IRS procedures to ensure compliance with EO 

13175 and the Treasury Consultation Policy. During FY18, ITG participated in numerous 

conferences to provide information and get feedback from tribes on the impact of various tax 

related topics. For example, the ITG Director and senior staff participated in breakout sessions 

at NAFOA and NITA to discuss topics including the Tribal General Welfare Exclusion Act, 

employment tax issues, and tax compliance resources available to tribes.

ITG staff also provided training opportunities to tribes, with an increased emphasis on virtual 

products to allow tribal staff to access the materials when needed and at no cost. A Web based 

session was held on Form 1042-S Filing Tips for Tribes. In FY28, multiple items were 

developed and posted to www.IRS.Gov for use by tribes. Three interactive gaming tools were 

created addressing Title 31 – The Bank Secrecy Act, Tip Income Reporting, and Information 

Return Reporting. Five issue snapshots were completed on the following topics: IRC Section 

7871 – Treatment of Indian Tribes as States, Revenue Ruling 59-354 – Tribal Council 

Members’ Wages, FUTA Exemption for Indian Tribal Governments, IRC Section 7873 –

Treaty Fishing Rights-Related Income, and IRC Section 414(d) – Governmental Plans for 

Tribes. In addition, ITG posted information on Tuition and Other Educational Benefits 

Provided by Tribes, Form 1098-T.

Employment tax lessons to help Indian tribal Governments meet their responsibilities were 

recorded and made available as ITG Employment Tax Video Lessons. These lessons are 

available both on-line and as Publication 5287, Employment Tax Video Guides for Indian 
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Tribal Governments (CD-ROM) so that tribes with less access to high speed internet can still 

benefit from the materials.

In addition, Tribal communities were specifically included in the Earned Income Tax Credit 

(EITC) Thunderclap Event for only the second time to increase awareness of EITC for tribal 

members across social media platforms.

The IRS and ITG partner with tribal governments to establish Volunteer Income Tax Assistance 

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

including financial education and asset building, tax education, and tax preparation. The tax 

preparation aims to provide free tax preparation services for low- to moderate-income 

taxpayers. For example, during the recent filing season, 19 sites in the southwest were focused 

on tribal communities and transmitted 9348 returns. A total of $16,831,471 in refunds went out 

to members of those communities from these 19 sites! Of that total, $7,041,193 came from the 

Earned Income Tax Credit and $1,482,879 came from the Child Tax Credit. ITG provided

training and technical support to the site volunteers at the sites sponsored by tribal governments.

United States Mint

Since the beginning implementation of the Native American $1 Coin Program in 2009, the 

United States Mint (Mint) has actively consulted 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 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 (heads) bears the image of Sacagawea, a design that first appeared on the Golden 

Dollar in 2000. The Mint develops design themes in consultation with the National Museum of 

the American Indian, the National Congress of the American Indian (NCAI), and the United 

States Senate Committee on Indian Affairs the United States House of Representatives 

Congressional Native American Caucus and these themes are reviewed by the Citizens Coinage 

Advisory Committee (CCAC). 

In accordance with the Act, the Secretary of the Treasury selects reverse (tails) designs after the 

Mint consulting with the respective Congressional entities, NCAI, 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 through its 

numismatic program, in various quantities, qualities, and packaging options.