[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5608 Introduced in House (IH)]







110th CONGRESS
  2d Session
                                H. R. 5608

To establish regular and meaningful consultation and collaboration with 
   tribal officials in the development of Federal policies that have 
  tribal implications, to strengthen the United States government-to-
    government relationships with Indian tribes, and to reduce the 
          imposition of unfunded mandates upon Indian tribes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             March 13, 2008

Mr. Rahall (for himself and Mr. Kildee) introduced the following bill; 
        which was referred to the Committee on Natural Resources

_______________________________________________________________________

                                 A BILL


 
To establish regular and meaningful consultation and collaboration with 
   tribal officials in the development of Federal policies that have 
  tribal implications, to strengthen the United States government-to-
    government relationships with Indian tribes, and to reduce the 
          imposition of unfunded mandates upon Indian tribes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Consultation and Coordination With 
Indian Tribal Governments Act''.

SEC. 2. DEFINITIONS.

    For purposes of this Act:
            (1) Accountable consultation process.--The term 
        ``accountable consultation process'' means a process of 
        government-to-government dialogue between the agency and Indian 
        tribes to ensure meaningful and timely input by tribal 
        officials in the formulating, amending, implementing, or 
        recinding one or more policies that have tribal implications. 
        The process shall ensure, at a minimum, the following:
                    (A) That tribal officials have ample opportunity to 
                provide input and recommendations to the agencies 
                regarding formulating, amending, implementing, or 
                recinding policies that have tribal implications.
                    (B) That tribal input and recommendations are fully 
                considered by the agency before policies that have 
                tribal implications are formulated, amended, 
                implemented, or recinded.
                    (C) That, upon the formulation, amendment, 
                implementation, or recision of policies that have 
                tribal implications, tribal officials shall be provided 
                with written notification of the formulation, 
                amendment, implementation, or recision of such policies 
                and given a copy of those policies.
                    (D) That any policies that have tribal implications 
                shall not become effective until at least 60 days after 
                written notification to tribal officials pursuant to 
                subparagraph (D).
            (2) Agency.--The term ``agency'' means the Department of 
        the Interior, the Indian Health Service, and the National 
        Indian Gaming Commission.
            (3) Indian tribe.--The term ``Indian tribe'' means an 
        Indian or Alaska Native tribe, band, nation, pueblo, village, 
        or community that the Secretary of the Interior acknowledges to 
        exist as an Indian tribe pursuant to the Federally Recognized 
        Indian Tribe List Act of 1994 (25 U.S.C. 479a).
            (4) Policies that have tribal implications.--The term 
        ``policies that have tribal implications'' means any measure by 
        the agency that has or is likely to have a direct effect on one 
        or more Indian tribes, on the relationship between the Federal 
        Government and Indian tribes, or on the distribution of power 
        and responsibilities between the Federal Government and Indian 
        tribes, such as regulations, legislative comments or proposed 
        legislation, and other policy statements or actions, guidance, 
        clarification, standards, or sets of principles.
            (5) Tribal officials.--The term ``tribal officials'' means 
        elected or duly appointed officials of Indian tribal 
        governments, or their designees.

SEC. 3. FUNDAMENTAL PRINCIPLES.

    When formulating, amending, implementing, or recinding one or more 
policies that have tribal implications, an agency shall be guided by 
the following fundamental principles:
            (1) The United States has a unique legal and political 
        relationship with Indian tribal governments as set forth in the 
        Constitution of the United States, treaties, statutes, 
        Executive orders, and court decisions. The Federal Government 
        has enacted numerous statutes and promulgated numerous 
        regulations that establish and define a trust relationship with 
        Indian tribes.
            (2) Our Nation, under the law of the United States, in 
        accordance with treaties, statutes, Executive orders, and 
        judicial decisions, has recognized the right of Indian tribes 
        to self-government. Indian tribes exercise inherent sovereign 
        powers over their members and territory. The United States 
        continues to work with Indian tribes on a government-to-
        government basis to address issues concerning Indian tribal 
        self-government, tribal trust resources, and Indian tribal 
        treaty and other rights.
            (3) The United States recognizes the right of Indian tribes 
        to self-government and supports tribal sovereignty and self-
        determination.

SEC. 4. POLICYMAKING CRITERIA.

    In addition to adhering to the fundamental principles set forth in 
section 3, when formulating, amending, implementing, or recinding one 
or more policies that have tribal implications each agency shall adhere 
to the following criteria:
            (1) Each agency shall respect Indian tribal self-government 
        and sovereignty, honor tribal treaty and other rights, and 
        strive to meet the responsibilities that arise from the unique 
        legal and political relationship between the Federal Government 
        and Indian tribal governments.
            (2) With respect to Federal statutes and regulations 
        administered by Indian tribal governments, each agency shall 
        ensure Indian tribal governments the maximum administrative 
        discretion possible.
            (3) Each agency shall--
                    (A) encourage Indian tribes to develop their own 
                policies to achieve program objectives;
                    (B) to the extent they do not violate other 
                applicable laws, defer to Indian tribes to establish 
                standards; and
                    (C) in determining whether to establish Federal 
                standards, consult with tribal officials as to the need 
                for Federal standards and any alternatives that would 
                limit the scope of Federal standards or otherwise 
                preserve the prerogatives and authority of Indian 
                tribes.

SEC. 5. CONSULTATION.

    Each agency shall have an accountable consultation process. Not 
later than 30 days after the date of the enactment of this Act, the 
head of each agency shall designate an official with principal 
responsibility for the agency's implementation of this Act. Not later 
than 60 days after the date of the enactment of this Act, the 
designated official shall submit a description of the agency's 
accountable consultation process to the Committee on Natural Resources 
of the House of Representative and the Committee on Indian Affairs of 
the Senate.

SEC. 6. UNFUNDED MANDATES.

    To the extent practicable and permitted by law, no agency shall 
formulate, amend, or implement any policy that has tribal implications 
that imposes substantial direct compliance costs on Indian tribal 
governments and is not required by Federal law unless--
            (1) funds necessary to pay the substantial direct costs 
        incurred by the Indian tribal government or the Indian tribe in 
        complying with the policy are provided by the Federal 
        Government; or
            (2) the agency, before the implementation of the policy--
                    (A) consulted through the accountable consultation 
                process with tribal officials early in the process of 
                developing the proposed policy; and
                    (B) in a separately identified portion of the 
                preamble to the policy, provided to the Committee on 
                Natural Resources of the House of Representative, the 
                Committee on Indian Affairs of the Senate, and affected 
                Indian tribes a tribal summary impact statement 
                containing--
                            (i) a description of the extent of the 
                        agency's prior consultation with tribal 
                        officials;
                            (ii) a summary of the nature of the 
                        concerns of the tribal officials and the 
                        agency's position supporting the need to issue 
                        the regulation; and
                            (iii) a statement of the extent to which 
                        the concerns of tribal officials have been met.

SEC. 7. TRIBAL SELF-GOVERNMENT, TRIBAL TRUST RESOURCES, OR INDIAN 
              TRIBAL TREATY AND OTHER RIGHTS.

    On issues relating to tribal self-government, tribal trust 
resources, or Indian tribal treaty and other rights, each agency shall 
explore and, where appropriate, use consensual mechanisms for 
developing policies, including consideration of negotiated rulemaking.

SEC. 8. PREEMPTION OF TRIBAL LAW.

    To the extent practicable and permitted by law, no agency shall 
establish or implement any policy that has tribal implications and that 
preempts tribal law unless the agency, before the implementation of the 
policy--
            (1) consulted through the accountable consultation process 
        with tribal officials in development of the proposed policy; 
        and
            (2) in a separately identified portion of the preamble to 
        the policy, provided to the Committee on Natural Resources of 
        the House of Representative, the Committee on Indian Affairs of 
        the Senate, and affected Indian tribes a tribal summary impact 
        statement containing--
                    (A) a description of the extent of the agency's 
                prior consultation with tribal officials;
                    (B) a summary of the nature of the concerns of the 
                tribal officials and the agency's position supporting 
                the need to issue the regulation; and
                    (C) a statement of the extent to which the concerns 
                of tribal officials have been met.

SEC. 9. INCREASING FLEXIBILITY FOR INDIAN TRIBAL WAIVERS.

    (a) Review; Streamlining of Waiver Process.--Each agency shall 
review the processes under which Indian tribes apply for waivers of 
statutory and regulatory requirements and take appropriate steps to 
streamline those processes.
    (b) Flexible Policy Approaches.--Each agency shall, to the extent 
practicable and not in violation with other Federal laws, consider any 
application by an Indian tribe for a waiver of statutory or regulatory 
requirements in connection with any program administered by the agency 
with a general view toward increasing opportunities for using flexible 
policy approaches at the Indian tribal level in cases in which the 
proposed waiver is consistent with the applicable Federal policy 
objectives and is otherwise appropriate.
    (c) Decision on Application for Waiver.--Each agency shall, to the 
extent practicable and not in violation with other Federal laws, render 
a decision upon a complete application for a waiver not later than 120 
days of receipt of such application by the agency, or as otherwise 
provided by Federal law or regulation. If the application for waiver is 
not granted, the agency shall provide the applicant with timely written 
notice of the decision and the reasons therefor.
    (d) Applicability of Section.--This section applies only to 
statutory or regulatory requirements that are discretionary and subject 
to waiver by the agency.
                                 <all>