The Consensus Process

The Consensus Process

Todd M. Richardson, Associate Deputy Assistant SecretaryA trip to Denver the week of September 16th reminded me of some work I had done 16 years ago, and moreover it reminded me about the importance of leadership.

I was in Denver to participate in a process called “negotiated rulemaking,” in which the federal government meets with a group of individuals or organizations to negotiate the terms of proposed regulations that will affect them. In this case, HUD staff met with tribal leaders to discuss possible changes to the regulations for the formula used to allocate approximately $690 million annually to Native American tribes in accordance with the Native American Housing and Self-Determination Act (NAHASDA). Passed in 1996, NAHASDA transformed federal housing assistance to tribal communities by replacing traditional public housing assistance with a block grant model, in which tribes are allocated funds based on a formula. These block grants allow tribes to spend the funds on their own housing priorities.

Sixteen years ago, in 1997, I had just served as the government technical representative for a research study on housing needs in tribal areas, and for that study I had obtained a special tabulation of 1990 census data on Native American housing needs. Because I was the HUD staff person most familiar with these Census data and also had experience with allocation formulas, I was asked to participate in the negotiated rulemaking for this new law.

This, as it turns out, would be the start of the most rewarding process I have ever been involved with. The rewards were numerous: I developed friendships, learned to appreciate the importance of protocol and process, devoted time to ensuring that all participants understood important concepts, earned the satisfaction that comes from achieving consensus, and, most important, gained critical insight into the nature of leadership.

Consider this challenge. In 1997 there were approximately 50 tribal leaders representing over 500 tribes and villages at the negotiated rulemaking sessions. They were to negotiate the rule not through a simple majority vote, but through consensus. Consensus means that every one of the tribal representatives had to agree on how to divide more than $600 million annually among the tribes they represented.

When it comes to allocating funds or eating pie, division of the pie is a zero sum game. This means that more for one tribe means less for the other tribes. But we had two advantages. First, because NAHASDA was a new funding model, we had the flexibility that comes with working from a clean slate.

The other thing was the experience of the tribal leaders in the discussions. And this is where I learned about process and leadership. The first negotiated rulemaking session, as I recall, focused on who should be present for the discussions. And the second meeting centered on how the process should be managed. As a young and inexperienced staffer, I did not appreciate the importance of these first steps, but in retrospect I see that they were crucial for ensuring that everyone at the table was negotiating on an equal footing. Having all stakeholders agree on who should be present and how the process should be managed is the necessary first step toward achieving buy-in for the process. I believe that the tribes’ conviction that the process was fair made our success possible.

It was not clear what my role would be at the beginning. I had prepared presentations about what the census data said about American Indian and Alaska Native housing needs and on the mechanics of different allocation formulas. Over the course of many meetings, however, I gained the trust of the tribal leaders, who saw me as an unbiased and reliable source of information. In that role, I was able to help take the ideas presented by the leaders and offer ways to incorporate them into a formula. I offered options, not opinions.

The first step in negotiating the formula was to create the three building blocks that would form the foundation for the formula:

First block: The Statute. NAHASDA provides considerable flexibility for allocating funds. The statute takes into account "factors that reflect the need of the Indian tribes and the Indian areas of the tribes" when creating the formula, including the number of current assisted stock units, the extent of poverty and economic distress, the number of Native American families, and other "objectively measurable conditions."

Second block: Mission Statement. “Determine the criteria for need that are fair and equitable for all tribes pursuant to the law.” This mission statement has guided my thinking on all other allocation formulas I’ve worked on since this time.

Third block: Goals. We developed a set of goals based on the statute and the mission statement:

• Ensure a result that is both fair and equitable for all tribes.
• Provide objectively measurable and defensible data that are available and consistent for all tribes.
• Ensure that tribes have a right to appeal the validity of these data.
• Reach consensus by April 15.

Why were these blocks important? One important example was in respect to using the U.S. Census data as a base source of data to show relative need for assistance between tribes. Tribes did not like the 1990 Census, they felt it understated the population and needs in Tribal areas. In response to this concern, we went through a process to identify other potential data sources. After evaluating other sources against the goals, we reached consensus that we could live with the Census data because while not ideal, it alone met the requirements of the goals.

The capstone: Leadership. After multiple meetings over the course of a year, the group completed its work and reached consensus on the formula, and I believe we reached that consensus because the tribal leaders believed in the process. Most important were the tribal leaders who noted that although the new formula provided their tribes with less money than the old competitive programs did, they endorsed the formula because the funding process and goals were fair and equitable.