Elizabeth Carr, Senior Native Affairs Advisor, National Indigenous Women’s Resource Center
Effective consultation between tribes and federal agencies requires trust between all parties, it is an indispensable element in establishing a solid consultative relationship. Improving relationships, trust between entities, and the consultation process is a goal of mine in my role as the Senior Native Affairs Advisor at the National Indigenous Women’s Resource Center.
In my previous role as Associate Director for Tribal Affairs at the U.S. Department of Health and Human Services (HHS), I was responsible for providing expert analysis, advice, and guidance to senior and political leadership on policy, regulatory and legislative issues that have a significant and direct impact on tribal governments and tribal organizations administering HHS programs. While my role was to advise, I was only able to do my job through the important input and feedback HHS received through tribal consultation.
My knowledge and understanding of tribal consultation have been shaped by my experience at HHS; however, as a tribal member and policy professional, it is evident that the consultation process throughout the federal government is inconsistent, flawed, and not functioning appropriately to ensure tribes’ concerns are considered in the policy making process.
Government to Government Relationship
Tribal governments have a unique legal relationship with the federal government as set forth in the Constitution of the United States, treaties, statutes, and court decisions. To establish and maintain a positive government-to-government relationship, communication and consultation must occur on an ongoing basis so that Tribes have an opportunity to provide meaningful and timely input on issues that may have a substantial direct effect on their people and communities.
Executive Order 13175
Executive Order 13175 affirmed the federal government’s commitment to tribal sovereignty, self-determination, and self-government. Its purpose is to ensure that all Executive departments and agencies consult with Indian tribes and respect tribal sovereignty as they develop policy on issues that impact Indian communities. Established in 2000 by President Bill Clinton, it has since been reaffirmed by President George W. Bush and President Barack Obama. In 2009, President Obama directed federal agencies to engage in regular and meaningful consultation and collaboration with tribal officials in policy decisions that have tribal implications including, as an initial step, through the complete and consistent implementation of Executive Order 13175.
While Executive Order 13175, legislation that mandates tribal consultation (VAWA 2005), and individual federal agency tribal consultation policies exist, we know that consultation is still lacking in many areas, is not effective for tribes, and is less than meaningful. VAWA 2005 statutorily mandated annual consultation on violence against Indian women, clearly recognizing the urgent need to address the barriers to their safety. It further mandated a report to Congress following the consultation containing the tribal concerns and recommendations, and the federal response, the actions and progress of the federal departments. There are many consequences of failing to meet this consultation mandate. The loss of life and suffering endured by Native women and resulting trauma upon their families, tribes, and communities make this failure unconscionable. All consultations are important, but for these reasons, the VAWA mandated consultation holds the potential to save lives.
Improving Consultation to Address the Changes Needed
Consultation should be ongoing meaningful dialogue between tribal leaders and federal representatives on priority issues impacting Indian Country. To achieve meaningful consultation the following should take place:
- Creating a mutually agreeable definition of meaningful consultation. It is clear that currently the definition differs between tribal governments and the federal government. While a standard definition does not exist to reference, it is imperative that federal agencies understand that for consultation to meet the standard of being meaningful from a tribal perspective, it must meet a basic set of standards:
- While annual face to face consultations are important, consultation should be ongoing. Most importantly, consultation should be timely and take place throughout the process of developing proposed policies, regulations, budgetary decisions, and/or any other decisions that may impact tribal governments.
- Appropriate federal representatives should participate. To be a true government to government consultation, a federal representative should be the equivalent of a tribal leader and/or be the individual charged with finalizing any policy, regulation, or budget decision.
- In addition, federal agencies should be open to and prepared to engage in dialogue on key priority issues of the tribes. They should be open and transparent regarding the current status of the issue, any barriers to achieving the tribes’ desired outcome, and potential solutions and/or compromises for the tribes to provide input and feedback on.
- Ensuring federal leaders/representatives are knowledgeable of the government to government relationship, understand Executive Order 13175 and the importance of tribal consultation. Oftentimes, federal officials lack an understanding of the Government to Government relationship which creates a less than ideal consultation process. In my experience, typically once educated, federal representatives understand and respect their responsibility to tribes and understand the importance of tribal consultation. Federal agency staff working on tribal issues should ensure that political appointees and other federal officials are provided with education on trust responsibility, the government to government relationship, and consultation requirements. It is paramount that this occurs before officials participate in consultation to ensure that the dialogue is focused on the policy priorities and not on tribal leaders educating individuals on trust responsibility.
- Developing consultation agendas in partnership between tribal representatives and federal agencies would be beneficial and ensure the priority issues of both are included.
- The entirety of the consultation agenda should be devoted to consultation. Training and supplemental events should not coincide with a consultation to maintain and achieve the purpose of the government-to-government agenda.
- Providing monthly updates on the status of priority issues that fall under the purview of the agency. Oftentimes, tribal leaders have stated they feel like they are repeating themselves from year to year. It would be helpful for federal agencies to provide status updates on the issues raised at consultation sessions throughout the year so that tribal leaders are aware of the progress that has been made on priority issues.
In closing, I am excited to begin my role at NIWRC and look forward to partnering with you as tribal leaders and tribal organizations to work with federal agencies to improve consultation to make it more effective and meaningful toward increasing safety for Native women.