October 30, 2008

American Indian and Alaska Native Policy Statement

SUMMARY: In preparation for the 2010 Census, the Bureau of the Census (Census Bureau) adopts the following American Indian and Alaska Native (AIAN) policy statement. This final policy outlines the principles to be followed in all Census Bureau interactions with federally recognized AIAN tribal governments. The policy affirms the unique government-to- government relationship that exists between AIAN tribal governments and the Census Bureau and is consistent with the AIAN policy statement adopted by the Department of Commerce (DOC) on March 30, 1995. The adoption of this policy satisfies a long-standing request from AIAN populations, and the Census Bureau believes it will encourage and facilitate greater cooperation from these populations during decennial censuses and help us to better communicate with and enumerate this difficult-to-count population.
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[Federal Register: October 30, 2008 (Volume 73, Number 211)]
[Notices]               
[Page 64597-64600]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30oc08-29]                         

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DEPARTMENT OF COMMERCE

Bureau of the Census

[Docket Number 070404074-8894-03]

 
American Indian and Alaska Native Policy Statement

AGENCY: Bureau of the Census, Department of Commerce.

ACTION: Notice of final policy statement.

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SUMMARY: In preparation for the 2010 Census, the Bureau of the Census 
(Census Bureau) adopts the following American Indian and Alaska Native 
(AIAN) policy statement. This final policy outlines the principles to 
be followed in all Census Bureau interactions with federally recognized 
AIAN tribal governments. The policy affirms the unique government-to-
government relationship that exists between AIAN tribal governments and 
the Census Bureau and is consistent with the AIAN policy statement 
adopted by the Department of Commerce (DOC) on March 30, 1995. The 
adoption of this policy satisfies a long-standing request from AIAN 
populations, and the Census Bureau believes it will encourage and 
facilitate greater cooperation from these populations during decennial 
censuses and help us to better communicate with and enumerate this 
difficult-to-count population. This Notice also summarizes comments 
received on the draft AIAN policy statement published in the Federal 
Register on May 23, 2007 (72 FR 28952) and the Census Bureau's response 
to these comments. The policy statement adopted in this Notice differs 
from the proposed policy statement as follows: (a) The Introduction 
section was modified in response to comments received; (b) the 
definition of Federally Recognized Indian Tribe was modified in 
response to comments; (c) the definition of trust responsibility was 
deleted after agency review; (d) the definition of American Indian or 
Alaska Native Tribal Government was modified after agency review; (e) 
proposed Policy Principle No. 2 is renumbered as Policy Principle No. 
4; (f) proposed Policy Principle No. 3 is renumbered as Policy 
Principle No. 5; (g) proposed Policy Principle No. 4 was modified in 
response to comments and is renumbered as Policy Principle No. 2; (h) 
proposed Policy Principle No. 5 is renumbered as Policy Principle No. 
6; (i) proposed Policy Principle No. 6 was modified in response to 
comments and is renumbered as Policy Principle No. 7; (j) proposed 
Policy Principle No. 7 is renumbered as Policy Principle No. 8; (k) 
proposed Policy Principle No. 8 is renumbered as Policy Principle No. 
9; and (l) proposed Policy Principle No. 9 was modified in response to 
comments and is renumbered as Policy Principle No. 3.

DATES: Effective Date: This final policy will be effective on December 
1, 2008.

FOR FURTHER INFORMATION CONTACT: Requests for additional information or 
copies of the final policy should be directed to Dee Alexander, Program 
Analyst, Decennial Management Division, Outreach and Promotions Branch, 
U.S. Census Bureau, Room 3H166, 4600 Silver Hill Road, Stop 7100, 
Washington, DC 20233-7100, telephone (301) 763-9335.

SUPPLEMENTARY INFORMATION: 

Background

    The government-to-government relationship with Native American 
tribal governments (adopted by previous administrations) was reaffirmed 
by President George W. Bush in a White House Memorandum dated September 
23, 2004. Among other things, this memorandum directs the heads of 
executive agencies to continue to ensure that, to the greatest extent 
practicable and permitted by U.S. law, the agency's working 
relationship with federally recognized tribal governments fully respect 
the rights of self-government and self-determination due tribal 
governments. Pursuant to an earlier White House Memorandum of April 29, 
1994, the DOC adopted an AIAN policy statement on March 30, 1995. The 
Census Bureau is now adopting the AIAN policy statement set forth in 
this notice, which is consistent with the previously cited Presidential 
Memoranda and the DOC policy statement.
    This final policy statement is intended only for internal 
management purposes and does not create any right, benefit, or trust 
responsibility enforceable against the United States, its agencies, 
entities, or instrumentalities, its officers or employees, or any other 
person. The Census Bureau believes that this final policy statement 
will contribute to the accuracy of the 2010 Decennial Census by 
improving communications and encouraging greater cooperation with 
difficult-to-count populations.

Summary of Comments Received in Response to the Draft American Indian 
and Alaska Native Policy Statement

    The Census Bureau published a Notice and request for comments on a 
draft American Indian and Alaska Native (AIAN) policy statement in the 
Federal Register on May 23, 2007--(72 FR 28952). We received 13 
comments in response to the draft AIAN policy statement. A summary of 
comments received and the Census Bureau's responses to these comments 
are presented below.
    (1) One commenter suggested that the words ``executive orders'' be 
inserted in the Introduction section of the policy statement. The 
Census Bureau accepted this suggestion since it is consistent with the 
fundamental principles of the Federal Government's government-to-
government relationship with federally recognized tribes that includes 
executive orders issued by the White House (e.g., Executive Order 13175 
of November 6, 2000--``Consultation and Coordination with Indian Tribal 
Governments'').
    (2) One commenter suggested that the word ``political'' be inserted 
before the word ``status'' in the definition of Federally Recognized 
Indian Tribes. The Census Bureau accepted this suggestion and added the 
words ``and legal'' to this definition since both terms have been used 
to describe the relationship between the United States and AIAN 
populations (See, e.g., White House Memorandum of September 23, 2004--
``Government-to-Government Relations with Native American Tribal 
Governments'').
    (3) One commenter suggested adding the words ``and individuals'' to 
the definition of Trust Responsibility. The Census Bureau has 
determined to delete this definition from its policy statement since it 
does not exercise trust responsibilities as that term is commonly used 
in treaties, statutes, executive orders, and regulations

[[Page 64598]]

governing the relationship between the United States and AIAN 
populations.
    (4) Two commenters suggested inserting the words ``on and off 
reservations'' after the words ``AIAN areas'' in proposed Policy 
Principles No. 2, 5, and 6. For similar reasons, one commenter 
suggested inserting the phrase ``living in AIAN areas on and off 
reservations'' after the word ``resident'' in proposed Policy Principle 
No. 8. The commenter noted that the proposed policy statement mentions 
that special attention will be paid to those living in an AIAN area. 
The commenter asked the Census Bureau to consider the unique situations 
of tribal members who do not live in their tribal membership area or 
the geographic AIAN area as that term is used by the Census Bureau. 
``American Indian and Alaska Native areas'' are very specialized terms 
used by the Census Bureau to describe the collection of data during 
decennial censuses. During Census 2000, this term was the subject of a 
single Federal Register Notice (See, 65 FR 39062). For the 2010 Census, 
we will make these terms the subject of separate Federal Register 
Notices (See, 73 FR 14203 and 73 FR 17303). The Census Bureau does not 
adopt the suggestion to modify the term ``AIAN areas'' since we believe 
the generic term is adequate for purposes of this Policy statement and 
is likely to generate less confusion with respect to the use and 
meaning of the term in other Census Bureau notices. However, the Census 
Bureau adopts the suggestion to insert the phrase ``living in AIAN 
areas'' after the word ``resident'' in proposed Policy Principle No. 8.
    (5) A commenter suggested inserting the words ``and 
implementation'' after the word ``planning'' in proposed Policy 
Principle No. 3. The commenter stated that Principle No. 3 refers to 
planning only and should include tribal government's involvement in the 
implementation process. The Census Bureau accepted this suggestion 
since it is consistent with the Census Bureau's commitment and current 
practice to work in partnership with tribal governments when conducting 
census activities within tribal communities.
    (6) One commenter suggested that the following text should be added 
to proposed Policy Principle No. 4. ``The Census Bureau acknowledges 
the trust relationship between the federal government and AIAN tribes 
as established by specific statues, treaties, court decisions, 
executive orders, regulations and policies.'' This commenter also 
suggested that proposed Policy Principle No. 4 should be given greater 
prominence by renumbering it as Policy Principle No. 2. The commenter 
recommends that the Census Bureau AIAN policy be restated so that it is 
consistent with DOC's AIAN policy and clarifies the Bureau's intent to 
consult with tribal nations prior to taking any action affecting 
tribes. The Census Bureau adopts these suggestions since they bring the 
Census Bureau's policy in alignment with the text of the DOC's AIAN 
Policy Statement.
    (7) One commenter suggested adding the words ``tribal protocols'' 
after the word ``distinct'' to proposed Policy Principle No. 6 and 
another suggested adding the word ``values'' after the word 
``cultural.'' The commenter stated that many tribal governments now 
have research protocols that govern data collection on their lands and 
from tribal members. Using tribal protocols will also mean that tribes 
will be aware of and plan for Census Bureau count activities. The 
Census Bureau accepts these suggestions since they are consistent with 
the other terms found in proposed Policy Principle No. 6.
    (8) One commenter suggested adding the words ``and work'' after the 
word ``consult'' and the phrase ``and throughout the planning and 
implementation of policy, rules or'' after the word ``decisions'' to 
proposed Policy Principle No. 9 and renumber Policy Principle No. 9 as 
Policy Principle No. 3. The commenter stated further that these changes 
would make the Census Bureau AIAN policy consistent with DOC's AIAN 
policy and clarify the Bureau's intent to consult with tribal nations 
prior to taking any action affecting tribes. The Census Bureau adopts 
these suggestions since they are consistent with the Bureau's current 
practice regarding collaborative efforts with AIAN populations and 
combining the two principles results in a more streamlined statement.
    (9) A commenter suggested inserting the words ``or regional or 
village corporation'' after the words ``including any Alaska Native 
village'' in the definition of Federally Recognized Indian Tribe. As 
the basis for this suggestion, the commenter cited the definition of 
Federally recognized tribe in the Native American Housing Assistance 
and Self-Determination Act of 1996 (25 U.S.C. 4101 et seq.) that 
includes the word ``regional'' and recognizes as tribes regional 
corporations established pursuant to the Alaska Native Claims 
Settlement Act (43 U.S.C. 1601 et seq.). The Census Bureau does not 
adopt this suggestion because the definition in the proposed Policy 
Statement is consistent with the text in the definition for Indian 
tribe (or tribe) in the DOC AIAN Policy Statement on which the Census 
Bureau's Policy Statement is based.
    (10) The Census Bureau received two comments that were outside the 
scope and nature of the AIAN policy statement. One comment expressed 
concern about the Local Update of Census Addresses (LUCA) program. The 
Census Bureau acknowledged the comment with a formal letter discussing 
a Census Bureau program change for the LUCA program. A second comment 
expressed general concerns about the AIAN policy statement, the LUCA 
program, and the AIAN Geographic Program. The Census Bureau 
acknowledged the comment with a formal letter.

Changes to Draft American Indian and Alaska Native Policy Statement as 
a Result of Public Comments and Further Agency Review

    The Census Bureau makes the following changes to the draft AIAN 
policy statement.

(A) Section I--Introduction

    Insert the words ``executive orders'' after the words ``court 
decisions'' so that the sentence now reads as follows: ``This 
relationship is based on the United States Constitution, federal 
treaties, policy, law, court decisions, executive orders, and the on-
going political relationship among tribes and the federal government. 
The relationship results in a federal trust responsibility to federally 
recognized tribal governments.''

(B) Section II--Definitions

    (i) Under the definition of Federally Recognized Indian Tribe, 
insert the words ``political and legal'' in front of the word 
``status,'' so that the revised phrase now reads as follows: 
``relationships established by the United States for indigenous people 
because of their political and legal status as AIAN tribes, Bands, 
Nations, Pueblos or communities.''
    (ii) Modify the definition of American Indian and Alaska Native 
Tribal Government to read as follows: ``The recognized government of an 
Indian tribe and any affiliated or component Band government of such 
tribe that the Secretary of the Interior recognizes to be eligible for 
the special programs and services provided by the United States to 
Indians because of their status as Indians by annual notice in the 
Federal Register pursuant to the Federally Recognized Indian Tribe List 
Act of 1994 (Pub. L. 103-454, 108 Stat. 4791). The most recent annual 
notice (``Indian Entities Recognized and Eligible to Receive Services 
from the United States

[[Page 64599]]

Bureau of Indian Affairs'') was published in the Federal Register on 
April 4, 2008 (73 FR 18553). The Census Bureau is making this 
modification to clarify the process to be used to determine the tribal 
entities covered by the Bureau's AIAN policy statement.

(C) Section III--Policy Principles

    (i) Policy Principle No. 2 is renumbered as Policy Principle No. 4.
    (ii) Under proposed Policy Principle No. 3, insert the words ``and 
implementation'' after the word ``planning.'' The principle is 
renumbered as Policy Principle No. 5 and now reads as follows:
    5. ``The Census Bureau recognizes and invites tribal governments 
involvement in the Census Bureau planning and implementation for 
censuses and surveys toward ensuring the most accurate counts and data 
for the AIAN population.''
    (iii) Under proposed Policy Principle No. 4, at the beginning of 
the principle's text--insert the following sentence:
    ``The Census Bureau acknowledges the trust relationship between the 
federal government and AIAN Tribes as established by specific statutes, 
treaties, court decisions, executive orders, regulations, and 
policies.'' Proposed Policy Principle No. 4 is renumbered as Policy 
Principle No. 2 and now reads as follows:
    2. ``The Census Bureau acknowledges the trust relationship between 
the federal government and AIAN Tribes as established by specific 
statutes, treaties, court decisions, executive orders, regulations, and 
policies. The Census Bureau's procedures for outreach, notice, and 
consultation will ensure involvement of AIAN tribal governments, to the 
extent practicable and permitted by law, before making decisions or 
implementing policies, rules, or programs that affect federally 
recognized governments.''
    (iv) Proposed Policy Principle No. 5 is renumbered as Policy 
Principle No. 6.
    (v) Under proposed Policy Principle No. 6, insert the words 
``tribal protocols'' after the word ``distinct'' and insert the word 
``values'' after the word ``cultural.'' Proposed Policy Principal No. 6 
is renumbered as Policy Principle No. 7 and now reads as follows:
    7. ``The Census Bureau recognizes that there are distinct tribal 
protocols, cultural values, practices, religious beliefs, traditions, 
climate conditions, as well as a tribe's authority over its land areas 
that must be considered and abided by when conducting any census survey 
in AIAN areas.''
    (vi) Proposed Policy Principle No. 7 is renumbered as Policy 
Principle No. 8.
    (vii) Under proposed Policy Principle No. 8, insert the phrase 
``living in AIAN areas'' after the word ``resident.'' Proposed Policy 
Principle No. 8 is renumbered as Policy Principle No. 9 and now reads 
as follows:
    9. ``The Census Bureau acknowledges its responsibility to provide 
accurate demographic and economic data on AIAN populations and their 
businesses. The Census Bureau will work with tribal governments and 
other partners to encourage the participation of every resident living 
in AIAN areas.
    (viii). Under proposed Policy Principle No. 9:
    (a) Insert the words ``and work'' after the word ``consult.''
    (b) Add the phrase ``and throughout the planning and implementation 
of policy, rules or'' after the word ``decisions.''
    (c) Renumber this Policy Principle as Policy Principle No. 3. This 
principle now reads as follows:
    3. ``The Census Bureau will consult and work with AIAN tribal 
governments before making decisions and throughout the planning and 
implementation of policy, rules, or programs that may affect tribes to 
ensure that tribal rights and concerns are addressed. Consultation will 
provide, but is not limited to, mutually agreed-upon protocols for 
timely communication, coordination, cooperation, and collaboration.''

American Indian and Alaska Native Policy of the U.S. Census Bureau

Introduction

    The U.S. Census Bureau hereby proclaims its American Indian and 
Alaska Native (AIAN) policy. This Policy outlines the principles to be 
followed in all Census Bureau interactions with federally recognized 
AIAN tribal governments. It reaffirms the unique government-to-
government relationship that exists between AIAN tribal governments and 
the Census Bureau.
    This relationship is based on the United States Constitution, 
federal treaties, policy, law, court decisions, executive orders, and 
the ongoing political relationship among tribes and the Federal 
Government. The relationship results in a federal trust responsibility 
to federally recognized tribal governments.
    The foundation for this policy statement is the White House 
Memorandum of September 23, 2004, ``Government-to-Government Relations 
with Native American Tribal Governments'' and the AIAN policy of the 
U.S. Department of Commerce of March 30, 1995. This policy is for 
internal management only and does not grant or vest any right to any 
party in respect to any federal action not otherwise granted or vested 
by existing law or regulations.

Definitions

    Federally Recognized Indian Tribe: Any AIAN, Band, Nation, Pueblo, 
or other organized group or community, including any Alaska Native 
village, as defined or established pursuant to the Alaska Native Claims 
Settlement Act (Title 43, United States Code (U.S.C.), Chapter 33, 
Section 1601 et seq.), acknowledged by the Federal Government to 
constitute a tribe with a government-to-government relationship with 
the United States and eligible for the programs, services, and other 
relationships established by the United States for indigenous people 
because of their political and legal status as AIAN tribes, Bands, 
Nations, Pueblos, or communities.
    American Indian and Alaska Native Tribal Government: The recognized 
government of an Indian tribe and any affiliated or component Band 
government of such tribe that the Secretary of the Interior recognizes 
to be eligible for the special programs and services provided by the 
United States to Indians because of their status as Indians by annual 
notice in the Federal Register pursuant to the Federally Recognized 
Indian Tribe List Act of 1994 (Pub. L. 103-454, 108 Stat. 4791). The 
most recent annual notice (``Indian Entities Recognized and Eligible to 
Receive Services from the United States Bureau of Indian Affairs'') was 
published in the Federal Register on April 4, 2008 (73 FR 18553).

Policy Principles

    The following policy statements provide general guidelines to 
Census Bureau employees for actions dealing with AIAN governments.
    (1) The Census Bureau recognizes the unique government-to-
government relationship between the United States and federally 
recognized AIAN tribal governments, as affirmed by the September 23, 
2004, White House Memorandum for the Heads of Executive Departments and 
Agencies and the AIAN policy of the DOC.
    (2) The Census Bureau acknowledges the trust relationship between 
the federal government and AIAN tribes as established by specific 
statutes, treaties, court decisions, executive orders, regulation, and 
policies. The Census Bureau's procedures for outreach, notice, and 
consultation will ensure involvement of AIAN tribal

[[Page 64600]]

governments, to the extent practicable and permitted by law, before 
making decisions or implementing policies, rules, or programs that 
affect federally recognized tribal governments.
    (3) The Census Bureau will consult and work with AIAN tribal 
governments before making decisions and throughout the planning and 
implementation of policy, rules, or programs that may affect tribes to 
ensure that tribal rights and concerns are addressed. Consultation will 
provide for, but is not limited to, mutually agreed-upon protocols for 
timely communication, coordination, cooperation, and collaboration.
    (4) The Census Bureau recognizes each tribal government as a 
functioning governing body that the Census Bureau will work with to 
count and collect data, as accurately as possible, of all residents 
living in AIAN areas.
    (5) The Census Bureau recognizes and invites tribal governments' 
involvement in the Census Bureau planning and implementation for 
censuses and surveys toward ensuring the most accurate counts and data 
for the AIAN population.
    (6) The Census Bureau will continue its partnerships with tribal 
governments to enhance awareness of all censuses, surveys, and 
geography programs, particularly those including residents living in 
AIAN areas.
    (7) The Census Bureau recognizes that there are distinct tribal 
protocols, cultural values, practices, religious beliefs, traditions, 
and climate conditions, as well as a tribe's authority over its land 
areas, that must be considered and abided by when conducting any census 
or survey in AIAN areas.
    (8) The Census Bureau recognizes the importance of effective and 
efficient coordination with other federal agencies in the planning 
process of any census or survey that will include AIAN tribal 
governments.
    (9) The Census Bureau acknowledges its responsibility to provide 
accurate demographic and economic data on AIAN populations and their 
businesses. The Census Bureau will work with tribal governments and 
other partners to encourage the participation of every resident living 
in AIAN areas.
    Therefore, the Director of the Census Bureau hereby directs all 
directorates and their components (divisions, branches, and offices) to 
implement this policy by incorporating all of the above principles in 
their interactions with federally recognized AIAN tribal governments.

Executive Order 12866

    This Notice has been determined to be not significant under 
Executive Order 12866.

    Dated: October 21, 2008.
 Steve H. Murdock,
 Director, Bureau of the Census.
[FR Doc. E8-25848 Filed 10-29-08; 8:45 am]

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