The U.S. Department of Agriculture (USDA) released updated its departmental regulation (DR) regarding Tribal consultations in DR (1350-002) Tribal Consultation on April 30, 2024. IFAI is in the process of reviewing that information in the DR and analyzing its impact. The new DR supersedes its three predecessors governing Tribal consultations. A summary/side-by-side comparison of the new DR and its three predecessors can be found here.  

Important note – The updated DR references a companion Departmental Manual: (DM) 1350-002, Tribal Consultation, Coordination, and Collaboration, provides Tribal consultation procedures and best practices. However, that DM currently remains unpublished on the USDA Office of Tribal Relations consultation website. It is also not available on the USDA Departmental Directives web page. It awaiting clearance internally at USDA. As soon as it is made public, IFAI will review it and update these materials with any additional information contained in the DM. This analysis may change as a result, depending on what is contained in the DM.  

High level summary points: 

• USDA previously maintained multiple DR’s on consultation over the last several decades. When a new DR was issued, older policies remained effective, with updates and clarifications made by new materials. In this newest DR, USDA chose a different approach and made the previous three DRs on consultation obsolete. To the extent that anything in those previous DRs was used to develop a policy or guidance supporting Tribes and consultations, those policies may no longer be effective if the updated DR made a substantive language change. 

• For example, the 2013 DR provided some basis for USDA’s ongoing consultation series with Tribal leaders on the Food Distribution Program on Indian Reservations (FDPIR), because the 2013 version specifically contemplated that consultation might not be a one-time event. The new DR does not have this language. Although the new DR does not explicitly state that ongoing consultations of this nature are not possible, it does not specifically say they are, either. Having that kind of assurance in writing helps both federal staff and Tribal leaders continue to consult, collaborate, and communicate. There is a possibility that some of this previous language is preserved in the DM.  

• The new DR also removed some language from the 2013 DR that discussed appropriate State involvement in consultative processes for programs where Congress has chosen to have States carry out USDA programs, such as the Supplemental Nutrition Assistance Program (SNAP). States are required to consult with Tribes when they prepare their annual SNAP-Ed plans for nutrition education, which is critical to maintaining service to Tribal citizens through this program because Tribes cannot legally apply for these funds directly. These consultations don’t always happen, however. Using the previous 2013 DR’s language on working with State agencies on consultation, USDA’s USDA Food and Nutrition Service issued strong guidance to States about moving forward and ensuring these consultations take place. That language is missing from the new DR, which means the guidance USDA previously issued to States is less robust. As a consequence agency staff have less guidance on how/when to loop in State agencies for Tribal consultations. If this language is preserved in the DM, we will update this as soon as that is made public.   

• The updated DR omits organizations like the National Congress of American Indians and Intertribal Agriculture Council (and others) from engaging in the same way they did under old DR. Specifically, past DRs included specific organizations like these as organizations that should be included in the Tribal agriculture policy processes, even while consultations were on a nation-to-nation basis.  

• The consultation triggers in this DR have been halved from four to two, now only allowing for “USDA initiated” and “Tribal leader initiated.” 

• While prior DRs mentioned entities aside from federally-recognized Tribes, the new DR explicitly lists that USDA “may also meet with” non-federally recognized Tribes and Native Hawaiian organizations. Previous DRs specified these as “Tribal Designated Entities” which included non-federally recognized Tribes, intertribal organizations and other Native-oriented organizations that could be engaged, but not in a government-to-government manner.  

• The new DR includes the most recent Executive Order — EO 14112 — and notes a 14 calendar day deadline for framing papers and other supporting documentation necessary for Tribes to consult.  

• This DR does not require each agency to develop/modify its own Tribal consultation policy; rather “A representative designated by Mission Area, agency, or staff office leadership should develop protocols for consultation with the Tribes in their respective State.”  This could promote engagement with Tribes and their agency subdivisions on the local level from the staff providing direct services to them compared to regional and national administrators.  
•  In general, the updated 2024 DR puts more responsibility for consultation on the Office of Tribal Relations (OTR) and requires less specific accountability from all individual agencies and offices across USDA. Although OTR certainly plays a critical role in ensuring all of USDA’s policies are aligned with the Department’s trust responsibility obligation to Tribal Nations, OTR has limited staffing capabilities in comparison to the purvey of the one of the largest federal departments in staffing and national reach. With offices in every county of the United States, every USDA program potentially impacts or provides benefits to Tribes, Tribal producers, and Tribal citizens. Further, while OTR’s role in ensuring consultation takes place has been key, especially on nationally impactful issues, previous iterations of this policy encouraged more specific responsibilities from agencies, offices, and all USDA staff to understand and fulfill the trust responsibility they have to Tribal Nations.  

Download IFAI’s side-by-side comparison of USDA’s Departmental Regulations on Tribal Consultations by clicking here or the image below.