A recent thread in the “Tribal Governance and Administration Group” on LinkedIn, around tribal consultation, got me thinking on the “art” of consulting with the Federal government.

By way of background, U.S. federal agencies are supposed to consult with tribes before taking an action with tribal implications.  This requirement was first formalized in 2000 by President Clinton in Executive Order 13,175 and reaffirmed in 2009 by President Obama.  There has been some recent discussion (led primarily by my friend Mark Van Norman of VN Consulting) on aggressively seeking a new Executive Order from the Obama Administration instead of a mere memo.  I strongly support this initiative.  The recent Executive Order establishing the “White House Council on Native American Affairs” is a step in that direction.

But I also believe that no matter how the federal government formalizes the requirement to consult, Tribes have to step up to the plate.  And I don’t mean “step up to the plate like Casey at the bat” – swinging wildly at the Federal government blindly hoping that something connects.  What I do mean is that we need to prepare ourselves to step forward, ready and willing to offer reasonable suggestions and recommendations for the issue being discussed.  Unfortunately, too often we use the “swing wildly” method of consultation which results only in the inevitable “strike-out.”  We have all experienced valuable time wasted in tribal consultations or listening sessions by tribal representatives intent only on berating Federal officials on broken treaties or other issues that, while important, a mere mortal federal employee simply has no control over or power to fix, instead of focusing on the issue at hand.

We are in an era of unheard access to the White House.  We have a President who wants to help tribal governments grow and who has passed that directive down to his employees.  We have great leadership at the Department of Interior.  Let’s use this access to our advantage!

Here are a few recommendations for tribal consultation:

1.  Come Prepared.  Do our homework and do not simply rely on draft letters from our tribal organizations.  While these letters often provide great background information, each tribe and region are different, it is critical for each tribe to individually understand what the issue is, who the decision-makers are and what the end goal is.  As General Sun Tzu said “Know your enemy and know yourself; in a hundred battles you will never be defeated.”

2.  Don’t Yell, Throw Things, or Otherwise Infuriate the People on the Other Side of the Table.  Like my mother always told me, “You catch more flies with honey.”  Enough said.

3.  Assume Best Intentions.  I know, this is super touchy feeling, but hang with me for a second.  Agencies are mandated to consult with tribes.  If we assume that the person we are meeting with is a good person with good intentions and we treat them respectfully, even when disagreeing, we may gain an internal advocate for the issue.  While there may, in fact, be a bad apple here or there, ignore them and focus on cultivating friends and gaining advocates.

5.  Be Realistic.  The Federal government is a morass of bureaucracy.  It is.  That means action can sometimes take a long, long, long time.  As a Federal employee it annoyed me too, but honestly, there was only so much we could do so fast.  Spending 20 minutes of testimony complaining about how long decision-making is taking is not worth the headache it will cause you.  Spend 2 minutes on it and then move on.

6.  Offer a Reasonable Recommendation.  Do not waste the valuable resources your Tribe invested when sending a representative to the consultation by sitting silently and not offering a meaningful, viable, realist recommendation.  If we burn all the time at consultations complaining about broken treaties, sequestration or how bad the bureaucratic nonsense is, we lose the opportunity to provide input from the people who know best how to address the issue at hand.  If you hear a suggestion offered by another Tribe at the consultation that you think will work, then voice your support.  It is much more difficult for the consulting Agency to discount tribal suggestions if there is significant tribal support for those suggestions.

7.  Hold the Agency and Officials Accountable.  I believe the Stevens Administration at the National Indian Gaming Commission turned tribal consultation on its head during Chairwoman Tracie Stevens tenure.  When she came in, Chairwoman Stevens determined to hold meaningful consultations with transparency and accountability.  This took shape by consulting with Tribes prior to proposing an action with tribal implications, then transcribing all consultations and posting them on the website, posting all written comments on the website and finally, by reviewing and responding to each comment in the Final Rule notice. If we accomplish nothing else from our consultations but agency accountability and transparency, we will have achieved an enormous goal. See Tribal Consultation on the NIGC website.

Have comments, additional recommendations or suggestions?  Please share! And feel free to email me if you have any questions.