Commentary: ‘Unrealistic’ high expectations for tribal consultation

More than twenty years ago the BBC captured the essence of bureaucracy in a sitcom called, “Yes, Minister.” The basic plot was the Minister for Administrative Affairs, Jim Hacker, would come up with an idea – sometimes wonderful, sometimes odd – only to have its implementation sidetracked by civil servants.

Hacker’s nemesis, Sir Humphrey Appleby, once described his task: “the traditional allocation of executive responsibilities has always been so determined as to liberate the ministerial incumbent from the administrative minutiae by devolving the managerial functions to those whose experience and qualifications have better formed them for the performance of such humble offices, thereby releasing their political overlords for the more onerous duties and profound deliberations which are the inevitable concomitant of their exalted position.”

Of course bureaucracy in the United States is different. Our civil servants have far less power than they do in the United Kingdom. Then again, I remember a long-time Washington bureaucrat who once told me, “I’ve seen ’em come, I’ve seen ’em go.”

Every president is challenged by the nature of bureaucracy, and the agency that best reflects that power is the Office of Management and Budget. OMB is where many good ideas all but disappear from public discourse. The agency is a budget traffic cop, saying “no” to any agency request that it thinks cost too much.

These days the Nixon administration gets much credit for the president’s July 1970 Indian affairs message that called for a sharp break with the past. “This policy of forced termination is wrong, in my judgment,” the president said. “We have turned from the question of whether the Federal government has a responsibility to Indians to the question of how that responsibility can best be furthered.”

But Nixon’s words were not all that different from President Johnson’s message to Congress in 1968. LBJ also said it was time to end “the old debate” about termination and he stressed self-determination. But the president’s words fell flat because there wasn’t support in Congress or the bureaucracy for such substantive change.

This is the context for President Barack Obama’s meeting with tribal leaders Nov. 5. “I know that you may be skeptical that this time will be any different,” the president said. “You have every right to be and nobody would have blamed you if you didn’t come today.  But you did.  And I know what an extraordinary leap of faith that is on your part.”

And that leap of faith was matched immediately with the sort of action that doesn’t draw headlines. The president picked the OMB as the key agency to implement the government’s new policy. “I hereby direct each agency head to submit to the Director of the Office of Management and Budget (OMB), within 90 days after the date of this memorandum, a detailed plan of actions the agency will take to implement the policies and directives of Executive Order 13175.”

OMG the OMB! (That’s “oh my god!” for those who aren’t receiving texts from a teenager with a cell phone.)

This is the same agency that urged President Ford to veto S. 522, the Indian Health Care Improvement Act, in 1976 because “substantial” funds had already been spent on Indian Health. “We believe S. 522 is a particularly egregious example of unnecessary legislation that will result in high unrealistic expectations among the very group it is intended to help.”

I like the idea of unrealistic high expectations. Now that the order is published in the Federal Register we should expect a real consultation process with agencies ranging from the office of U.S. Trade Representative to the Internal Revenue Service. Consider this process mechanism: Because the OMB is responsible for this policy, the spending for tribal consultation by every government agency already has a green light.

On top of that, the task ahead will be easier because so many cabinet-level officers were at the meeting with tribes at the Interior Department. They already know, and get, why consultation is a big deal.

President Obama’s directive doesn’t guarantee success. But it is a significant step because it incorporates the bureaucracy itself into the way ahead. This may not make sitcom fodder, but it’s important because bureaucrats make much better partners than opponents.

Mark Trahant is a Kaiser Media Fellow examining the Indian Health Service and its relevance to the national health care reform debate. He is a member of Idaho’s Shoshone-Bannock Tribes. Comment at www.marktrahant.com.

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