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Our firm defended a tribal absentee ballot law (denying absentee ballots to non-resident members) against constitutional attack in Jacobson v. Eastern Band of Cherokee Indians, No. CV-05-101 (Supreme Court of the Eastern Band of Cherokee Indians, Nov. 29, 2006).

General Memorandum 15-073

General Memorandum 15-073
Treasury Publishes Final Tribal Consultation Policy

The Department of the Treasury published in the September 23, 2105 FEDERAL REGISTER the attached final tribal consultation policy. The effective date of the final policy is the date of publication. The final policy supersedes the interim policy which was published on December 3, 2014, and had been in effect while comments were being considered. (See our GM 14-094 of December 12, 2014.) There are a number of differences between the interim policy and the final policy which we describe below. Throughout the Obama Administration tribal leaders and tribal organizations have called upon Treasury to establish and publish its tribal consultation policy.

Key Differences Between the Interim and Final Versions of the Policy. The Department received 25 comments from tribes and intertribal organizations. These comments included several points that persuaded Treasury to adjust its consultation policy to reflect tribal views, including the following:

• The statement in the interim policy that "Treasury will endeavor to consult" with tribes has been changed in the final policy to simply state that "Treasury will consult" with tribes.
• The interim policy stated that policy matters of general applicability that may impact tribal governments would remain outside the scope of tribal consultation, but the final policy reverses this position to confirm that policy matters of general applicability that may impact tribal governments are matters for tribal consultation.
• Despite extensive tribal comments, the terms in the interim policy asserting that issues associated with enforcement actions are not subject to consultation remain the same because Treasury is prohibited by law from engaging in enforcement matters. The final consultation policy, however, clarifies that in situations where policy issues affecting multiple tribes arise from an enforcement matter (such as the recent experiences with the General Welfare Exclusion and Per Capita Trust issues) then the policy elements will be explored through consultation with tribes.
• The final policy now formally requires the Treasury Point of Contact for Tribal Consultation to acknowledge requests for consultation "within a reasonable period."

Proposed Changes Not Reflected. Many comments called for the Treasury Tribal Advisory Committee (TTAC) to have a role in the consultation policy, but no change was made to the consultation policy because, as was explained to us by Treasury officials, the TTAC is a "supplemental consultation mechanism that is tax-specific." The Treasury consultation policy covers not only tax matters but also other (non-tax) policy issues.

Future Changes to the Tribal Consultation Policy. Treasury states "the consultation policy will be updated periodically and refined as needed to reflect ongoing engagement and collaboration with Tribal partners."

Please let us know if we may provide additional information regarding the Treasury Department's final tribal consultation policy.

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Inquiries may be directed to:
Michael Willis (mwillis@hobbsstraus.com)
Joe Webster (jwebster@hobbsstraus.com)
Jennifer Hughes (jhughes@hobbsstraus.com)

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