Member Article

On January 28, 2022, the Small Business Administration announced that it had issued its Tribal Consultation Policy of 2022. In this policy, SBA stated that “it is the policy of the U.S. Small Business Administration (SBA or Agency) to operate within a government-to-government relationship with federally recognized indigenous Tribes and Alaska Native Corporations (ANCs) and to consult with tribal governments and ANCs prior to finalizing SBA policies that have implications for these stakeholders” and that the Tribal Consultation Policy of 2022 will “delineate[ ] the principles and procedures that SBA will follow when interacting with tribal governments in the consultation process.”

While the Tribal Consultation Policy of 2022 does not establish substantive rights upon ANCs or Tribal governments, it is a recognition of SBA’s obligations under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments“ to establish regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications.” As required by Congress (Pub. L. 108-199, 118 Stat. 452, as amended by Pub. L. 108-447, 118 Stat. 3267), the obligations of the federal government under Executive Order 13175 extend to both federally recognized Tribes and ANCs. 

The Tribal Consultation Policy of 2022 enunciated eight “policy principles” for implementation of its consultation obligations with Tribes and ANCs:

• SBA recognizes and commits to a government-to-government relationship with federally recognized Native American Tribes and will observe appropriate protocols when interacting with Tribal governments.
• SBA recognizes and commits to a federal government-to-government relationship with ANCs and will observe appropriate protocols when interacting with ANCs.
• SBA recognizes the federal trust responsibility to Tribal governments as established by specific statutes, treaties, executive orders, court decisions, regulation, and policies.
• SBA respects and supports the sovereignty of federally recognized Tribes, which includes the inherent right of such Tribes to exercise self-determination and self-governance.
• SBA will assess the impact of its proposed policies on Native American Tribes and ANCs and engage in consultation and collaboration with Tribes and ANCs early in the decision-making process to ensure that Tribal government and ANC rights and concerns are considered.
• SBA acknowledges its responsibility to inform Tribal governments and ANCs about Agency programs and services and will conduct appropriate outreach and education initiatives.
• SBA understands and respects the cultural diversity of Native American Tribes and ANCs and will ensure that formal government-to-government communications are culturally appropriate.
• When appropriate, SBA collaborates with other Federal departments and agencies to gauge interest in supporting joint efforts.

In terms of specific guidelines regarding consulting with Tribes and ANCs, the Tribal Consultation Policy of 2022 commits SBA to “consult Tribes and ANCs periodically, on at least on an annual basis, to obtain input on how SBA could improve its programs to better serve Native American stakeholders.”

It also states that SBA will consult with Tribes and ANCs prior to implementing regulatory or policy changes impacting SBA’s small business programs (such as the 8(a) program and the HUBZone program) whenever the changes would have a substantial direct effect on Tribal or ANC participation. SBA “may also consult with Tribes and ANCs on significant regulatory or policy actions that do not have substantial Tribal implications but will impact the broader small business community.” 

SBA may identify areas requiring consultation with Tribes and ANCs on its own, or Tribes and ANCs may request that SBA consult with them on specific topics or issues. If possible, any required consultation is to occur “early in the planning stage of the decision-making process to allow for pre-draft consultation, if practicable.” Tribes and ANCs may submit requests for consultation to [email protected] or to Attn: AA/ONAA; 409 3rd Street, SW; Washington DC, 20416. Requests for consultation should identify the specific regulatory or policy action(s) at issue and describe the potential impact on Tribes or ANCs. 

Under the Tribal Consultation Policy of 2022, and prior to any consultation with Tribes and ANCs, SBA is to:

• Prepare an information package containing a description of the proposed action, an initial list of issues and concerns, and any other materials that will assist Tribes and ANCs in analyzing the proposed action and provide input during the consultation process. 
• Design a consultation process that is “appropriate for the scope and magnitude” of the policies or changes at issue, including providing for consultation at face-to-face or virtual meetings, soliciting written comments, or any combination. The consultation process should be “national in scope,” but can be implemented through “regional meetings.”
• Provide notice to Tribes and ANCs of the consultation opportunity not less than 30 days prior to the date of the meeting or deadline for submissions of written comments.
• Conduct the consultation meetings in a manner that reflects the government-to-government relationship between the federal government and Tribes and ANCs, including:
  • Conducting the consultation in a manner that respects Tribal sovereignty and formally recognizes Tribal officials as government representatives of other nations.
  • Respecting the unique status of ANCs and formally recognizing ANC representatives as the proxy of Alaska Native shareholders.
  • Providing for open and candid dialogue and encouraging exchanges of information, views, and recommendations to enable federal, Tribal, and ANC officials to make an informed decision;
  • Transcribing or recording the consultations; and
  • Permitting written comments for a period of time after the consultation, if “practicable and appropriate.”
• Consider comments and recommendations submitted by Tribal officials and ANCs prior to publishing the proposed policy action in the Federal Register; and
• Publish the proposed action in the Federal Register and address the comments received, including setting forth the reasons for accepting or declining input from the tribal and/or ANC communities.

The Tribal Consultation Policy of 2022 appointed SBA’s Assistant Administrator/Office of Native American Affairs as the designated official responsible for implementing the SBA’s consultation obligations. 

While the Tribal Consultation Policy of 2022 does not change any of the existing SBA programs that Tribes and ANCs participate in, it is an important recognition of the roles played by Tribes and ANCs and the need for SBA to take into account the often unique concerns and issues that Tribes and ANCs face. As SBA proceeds in 2022, Tribes and ANCs should not hesitate to use the Tribal Consultation Policy of 2022 and request consultation with SBA on issues that will impact them or their members or shareholders. 

This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.