Michigan Department of Treasury Tribal Consultation Policy

INTRODUCTION

Governor Whitmer's Executive Directive 2019-17 (Executive Directive) signed October 31, 2019, reaffirms, extends, and implements the State's October 28, 2002 Accord with Michigan's twelve federally recognized Indian tribes (Tribes).  The Accord recognized the Tribes' sovereignty and right to self-determination and committed the State to use a process of consultation with the Tribes to minimize and avoid disputes. The Executive Directive acknowledges that the shared responsibility of the State and Michigan's federally recognized Tribes to provide for and protect the health, safety, and welfare of their common constituents is dependent upon open communication and robust collaboration between the Tribes and the State. 

The Executive Directive seeks to ensure awareness of and adherence to principles fundamental to a government-to-government relationship, to outline a process of tribal consultation that ensures meaningful and mutually beneficial communication and collaboration on matters of shared concern, and to incorporate this process into the State's operations so as to create the necessary infrastructure to carry out the objectives of the Accord and the Executive Directive.    Specifically, the Executive Directive requires each state department or agency to implement a formal policy regarding consulting with Michigan’s federally recognized Indian Tribes on a government-to-government basis for before taking action or implementing a decision that may affect one or more of these tribes.

Consistent with the Executive Directive the Michigan Department of Treasury (Treasury) recognizes the following guiding principles:  

• Federally recognized Indian tribes are sovereign governmental entities.
• Federally recognized Indian tribes possess inherent authority to exercise jurisdiction over their respective lands and citizens.
• Federally recognized Indian tribes possess the right to self-governance and self-determination.
• The United States has a unique trust relationship with federally recognized Indian tribes as set forth in the United States Constitution, treaties, statutes, executive orders, court decisions, and the general course of dealings of the United States with the Indian nations.
• The State of Michigan has a unique government-to-government relationship with each of Michigan’s federally recognized Indian tribes, and that relationship is shaped by accords, compacts, statutes, court opinions, and a multitude of intergovernmental interactions.

With these guiding principles in mind, Treasury adopts the Consultation Policy (Policy) discussed below effective immediately.

CONSULTATION POLICY

Treasury must consult with Tribes prior to implementing policies or decisions that have substantial tribal implications.  Nothing in this policy prohibits or discourages Treasury from consulting with Tribes on policy matters of general applicability that may have an impact on Tribes when it so desires.  Actions that do not require consultation include, but are not limited to:

• Issues involving taxpayer specific information, audit selection criteria, or any other matters in which the disclosure of information is prohibited by MCL 205.28(1)(f).
• Issues in litigation or issues Treasury anticipates litigating.
• Issues involving the Tax Agreements between Treasury and Tribes.
• Issues involving legislation.

When Treasury identifies a potential policy or decision that would have substantial tribal implications, it will consult with any affected Tribes using the following procedures:

1. Identification.  The first step in the consultation process is identifying a potential policy or decision that will have substantial tribal implications.

• Treasury identification: Treasury’s office of Tribal Affairs will monitor internal Treasury policy and decision making to ensure that consultation occurs for all activities that have substantial tribal implications. An activity may have substantial tribal implication requiring consultation even when there is no express reference to or direct effect on tribes or their constituents.
• Tribal identification: Tribes may initiate consultation by identifying an activity that may be appropriate for consultation and providing written notice to Treasury’s office of Tribal Affairs that it is requesting consultation.  Treasury will evaluate such requests to determine if it agrees that it is an activity that has substantial tribal implications and notify the Tribe(s) in writing within 30 days of receipt of the written request to advise whether it agrees or disagrees that the activity warrants consultation.  If Treasury determines consultation is not required it shall communicate detailed reasons for its decision to the Tribe(s) that requested consultation.   

Activities that may be appropriate for consultation include, but are not limited to, actions or decisions regarding rules, letter rulings, revenue administrative bulletins, notices, and any other document or form of guidance in which Treasury announces its official positions. 

2. Notification. When Treasury identifies a potential new policy or a potential change to an existing policy that has substantial tribal implications, it shall notify any potentially affected Tribes in writing, both electronically and via U.S. Mail.  If a response is requested, Treasury shall specify the date within which the Tribe should respond.  Notification shall be sent to all persons designated by each individual Tribe at the email or U.S. postal address provided by the Tribe.   Tribes should promptly update Treasury’s office of Tribal Affairs of any changes in individuals that are designated to receive notification of consultation matters.  Treasury is only required to provide notification to those individuals designated by each Tribe.

3.  Input.  Treasury typically issues policies and decisions in the form of revenue administrative bulletins (bulletins) and letter rulings.  Bulletins and letter rulings are both binding on Treasury unless a subsequent change in statute or a binding judicial decision conflicts with the bulletin or letter ruling.  Bulletins generally cover broader topics of general applicability, whereas letter rulings tend to cover a discrete issue raised by a taxpayer.  Treasury shall provide at least 40 days prior to the date of publication of bulletins that have substantial tribal implications for Tribes to provide input on the draft bulletin.   Treasury shall provide 15 days prior to the date of publication of letter rulings that have substantial tribal implications for Tribes to provide input on the draft ruling.  Absent an exigent circumstance, Treasury shall provide the Tribes as much time as circumstances will allow to provide input for all other forms of published policies and decisions that have substantial tribal implications.   

Treasury will work closely with the Tribes to obtain all necessary and relevant information and to address all concerns raised by the Tribe(s).  Treasury will to the fullest extent possible and to the best of its ability integrate the input generated from tribal consultation into its decision-making processes to achieve mutually acceptable solutions.  To the extent possible, Treasury will communicate its preliminary decision prior to issuing its final policy or decision. 

An “exigent circumstance” is an unforeseen event which requires the Department’s immediate action in order to meet a critical deadline imposed by the Legislature, a judicial or executive directive, order, or decision, or for the Department to preserve and protect State and Tribal citizens and businesses from financial, economic or other clearly defined harm.  In the event that an exigency exists, Treasury will provide a shorter timeframe for Tribes to provide input.  However, if the exigency does not allow Treasury any time to consult, it will consider any relevant information provided by Tribes for consideration for future changes to the policy or decision.  Where the Department adopts a new policy or a potential change to an existing policy that has substantial tribal implications and it was prevented from tribal consultation due to  exigent circumstances, the Department will review any information provided by the tribes within 60 days of the implementation of the policy or decision. 

If a Tribe requests an in person, telephonic or other form of consultation, Treasury will ensure that its tribal liaison(s) and any other Treasury employees possessing the necessary background information and knowledge of the potential policy or decision are present for the consultation.  Should a Tribe desire to request that an official with decision-making authority participate in the consultation, the Tribe should make the request in writing to the Department’s liaisons at least 15 days prior to the date set for the consultation.      

Email correspondence may be sent to the Department’s Tribal Liaison(s) at his or her email address.  All written correspondence sent via U.S. mail should be sent to the following address:

Tribal Affairs

Bureau of Tax Policy

PO Box 30828

Lansing MI 48909

4.  Follow up.  Within 30 days of issuing a final policy or decision that has substantial tribal implications, Treasury will provide a written explanation regarding any changes suggested by a Tribe that were not incorporated into its final policy or decision.