Dear Principal Deputy Director Tabak,
On behalf of the United South and Eastern Tribes Sovereignty Protection Fund (USET SPF), we submit these comments in response to the Dear Tribal Leader Letter issued by the National Institutes of Health (NIH) on May 7, 2021 to replace its 2014 “NIH Guidance on the Implementation of the Department of Health and Human Services (HHS) Tribal Consultation Policy” (Guidance). Between May 25 and August 12, 2021, NIH participated in HHS’ regional consultations to discuss updates to NIH’s draft Tribal Consultation Policy, which was developed with input from the NIH Tribal Advisory Committee and the NIH Office of Science Policy. NIH has stated that its draft Tribal Consultation Policy seeks to strengthen Nation-to-Nation relationships and engage in meaningful, consistent engagement with Tribal Nations on NIH policies, programs, and activities. However, a copy of the draft Tribal Consultation Policy could not be located on NIH’s website and the draft policy was not shared with USET SPF. In the absence of seeing a publicly available draft, our comments are focused primarily on NIH’s 2014 Guidance.
While NIH’s current Guidance mirrors many of the directives established in the HHS Tribal Consultation Policy, USET SPF has concerns with language used in these policies that do not fully adhere to the federal government’s trust and treaty obligations to Tribal Nations. Such language includes terminology that positions federal entities as the sole decision-makers for determining whether an action, activity, or policy may have “substantial” or “significant” effects on Tribal Nations. Tribal Nations must be empowered to initiate consultation with NIH or HHS on these issues and our federal partners should be responsive to these requests rather than following a model of consultation “to the extent practicable”. As an example, recent actions soliciting applications for a Resource Center for Tribal Epidemiological Centers did not go through proper consultation protocols to receive input and recommendations from Tribal Leaders and Tribal Epidemiology Centers (TECs).
An essential aspect of the federal trust responsibility and obligations to Tribal Nations is the duty to consult on the development of Federal policies and actions that have Tribal implications. This requirement is borne out of the sacred relationship between the federal government and Tribal Nations, as well as numerous treaties, court cases, laws, and executive actions. It is a recognition of our inherent sovereignty and self-determination. For too long, the United States has failed to fully uphold and implement E.O. 13175 and other consultation directives. This has resulted in irreparable damage to Tribal Nation homelands, sacred sites, and interests, as well as costly litigation against the federal government. Recent events, including the COVID-19 crisis, have underscored the urgent need for radical transformation in the recognition of our governmental status and the delivery of federal obligations to our people.
We can no longer accept the status quo of incremental change that continues to maintain a broken system. The federal government must enact policies that uphold our status as sovereign governments, our right to self-determination and self-governance, and honor the federal trust obligation in full. This includes evolving away from the current broken model of Tribal consultation and into a future in which Tribal Nation consent is sought for federal action. We ask that NIH join us in realizing this change and advocate for this change among its partners in the Executive Branch. Should you have any questions or require further information, please contact Ms. Liz Malerba, USET SPF Director of Policy and Legislative Affairs, at LMalerba@usetinc.org or 615-838-5906.