Dear USET/USET SPF Family,
On November 1, 2022, the Department of Health and Human Services (HHS) initiated Tribal consultation on their draft updated HHS Tribal Consultation Policy. HHS released a redlined version of the policy that demonstrates the proposed changes, as well as a clean draft version of the policy and a Dear Tribal Leader Letter.
The draft policy incorporates recommendations from Tribal Nations in previous Tribal consultations, as well as recommendations from the Secretary’s Tribal Advisory Committee (STAC.) The draft policy also clarifies definitions and has been updated to reflect legislative and policy changes since the consultation policy was last updated in 2010. However, there were also recommendations from Tribal Nations that were not accepted, as described in the Dear Tribal Leader Letter. During prior consultation, Tribal Nations recommended the inclusion of “free, prior and informed consent” in the policy, as well as reference to the United nations Declaration on the Rights of Indigenous People (UNDRIP.) HHS chose to omit reference to the UNDRIP, citing concerns about jurisdiction, and the word “consent” does not appear in the policy at all.
Of note, the HHS STAC recommended that Intertribal Consortia and Intertribal Organizations be included in HHS consultations as participants equal to federally recognized Tribal Nations. HHS is also seeking comment from Tribal Nations as to how the policy should include Alaskan Native Corporations (ANCs.) According to HHS, statute requires that federal agencies consult with ANCs on the same basis as federally recognized Tribal Nations, and several agencies have developed separate but similar consultation policies to comply with the requirement. HHS is seeking comment on the following question: “Should consultation with ANCs be included in this Tribal consultation policy or should HHS develop a separate policy to address this congressional mandate?”
USET SPF remains opposed to efforts that confer inappropriate status on ANCs during the consultation process. While we do not dispute that ANCs play a critical role that is also complimentary to Tribal Nations that reside within the borders of Alaska, we feel as though this direct inclusion undermines the government-to-government relationship between Tribal Nations and the United States and dilutes consultation as a diplomatic tool.
The draft Tribal consultation policy will be open for comment for 60 days, on January 6, 2023. At the close of the comment period, HHS will reconvene the STAC to review the comments and recommendations. At this time, HHS has not indicated that it will hold another Tribal consultation on this topic. Comments and recommendations are due to consultation@hhs.gov by January 6, 2023.
For more information, please contact Ashton Martin, Health Policy Analyst, at amartin@usetinc.org.
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