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Tribes reject HUD consultation policy

WASHINGTON - More than 200 tribal representatives walked out of a recent meeting in St. Paul, Minn., in protest of the Department of Housing and Urban Development's new policy on consultation.

Those who participated in the walkout contend the process of consultation supported by HUD does not respect tribal sovereignty and is not true government-to-government consultation.

The development of HUD's consultation policy began following President Clinton's second executive order on tribal self-governance and government-to-government consultation. These orders directed each federal agency, including HUD, to consult with tribal governments before acting on policies that have a substantial impact on tribal governments. Many tribal leaders say this also includes the development of any tribal consultation policy.

Tribal representatives at the meeting said that tribal concerns were not properly addressed in the formation of the consultation policy, citing the submission of a draft policy prepared by tribes in February 2000 which was not integrated into the new policy.

Following the walkout, a Tribal Caucus resolution and position paper were drafted to explain tribal concerns. Two hundred tribal leaders and representatives signed their name to the resolution, which they have forwarded to HUD Secretary Mel Martinez, requesting that HUD re-examine its policy.

Chairman Tex Hall of the Three Affiliated Tribes of North Dakota and Brian Wallace of the Washoe Tribe of Nevada and California presented the resolution and position paper to HUD representatives at the meeting. The walkout occurred on the second day of a four-day Native American Homeownership Summit. The meeting was scheduled to include two days of consultation and two days of training.

"I don't see any mechanism for dispute in this policy that would allow us to go to the secretary or the Office of Management and Budget or another third party if our concerns are not met," Hall said. "We should have some assurance that this consultation will lead to results. HUD has not given that assurance."

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Tribal representatives are also concerned about the applicability of negotiated rulemaking, a procedure that requires consensus of a committee comprised of tribal and HUD officials. Tribal representatives say they have repeatedly said that negotiated rulemaking should be applied to all changes in regulations governing NAHASDA, or the Native American Housing Assistance and Self-Determination Act, signed into law in 1996.

The intent of the law was to aid Native Americans, which now includes Native Hawaiians, in tribal areas with affordable housing development including home ownership, rehabilitation and other housing assistance. Although the law has been praised as a success, many tribes are hoping for more funds to build homes, along with increased technical support, and clearer guidance on consultation.

HUD officials have interpreted the law as mandating negotiated rulemaking only for the initial regulations completed in 1998.

"I'm concerned that we are getting bogged down by the same old issues," Hall said. "It's time to move forward."

Following the first day of consultation, the Tribal Caucus met and determined it would boycott the remainder of the sessions and insist the consultation procedure be changed to "more accurately reflect the executive order governing them."

At the meeting, HUD officials told participants that it "may not be possible to implement the solutions exactly as you recommend them." Caucus members asserted that this was not indicative of a government-to-government relationship, but rather a continuing paternalistic relationship.

The Tribal Caucus position paper says that participants do not endorse any conclusions drawn by HUD as a result of the Summit consultation meeting and that tribes will seek legal action against HUD if it issues any regulations without using negotiated rulemaking.

"Give us a chance to act as the sovereign nations we are by allowing us the freedom to choose our own destiny," Chairman Wallace said.