    [House Hearing, 110 Congress]
    [From the U.S. Government Publishing Office]

            H.R. 3490, H.R. 3522, H.R. 5608, H.R. 5680 AND S. 2457

    =======================================================================

                               LEGISLATIVE HEARING

                                   before the

                         COMMITTEE ON NATURAL RESOURCES
                         U.S. HOUSE OF REPRESENTATIVES

                           ONE HUNDRED TENTH CONGRESS

                                 SECOND SESSION

                                   __________

                            Wednesday, April 9, 2008

                                   __________

                               Serial No. 110-65

                                   __________

           Printed for the use of the Committee on Natural Resources

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                         COMMITTEE ON NATURAL RESOURCES

                   NICK J. RAHALL II, West Virginia, Chairman
                  DON YOUNG, Alaska, Ranking Republican Member

    Dale E. Kildee, Michigan             Jim Saxton, New Jersey
    Eni F.H. Faleomavaega, American      Elton Gallegly, California
        Samoa                            John J. Duncan, Jr., Tennessee
    Neil Abercrombie, Hawaii             Wayne T. Gilchrest, Maryland
    Solomon P. Ortiz, Texas              Chris Cannon, Utah
    Frank Pallone, Jr., New Jersey       Thomas G. Tancredo, Colorado
    Donna M. Christensen, Virgin         Jeff Flake, Arizona
        Islands                          Stevan Pearce, New Mexico
    Grace F. Napolitano, California      Henry E. Brown, Jr., South
    Rush D. Holt, New Jersey                 Carolina
    Raul M. Grijalva, Arizona            Luis G. Fortuno, Puerto Rico
    Madeleine Z. Bordallo, Guam          Cathy McMorris Rodgers, Washington
    Jim Costa, California                Louie Gohmert, Texas
    Dan Boren, Oklahoma                  Tom Cole, Oklahoma
    John P. Sarbanes, Maryland           Rob Bishop, Utah
    George Miller, California            Bill Shuster, Pennsylvania
    Edward J. Markey, Massachusetts      Bill Sali, Idaho
    Peter A. DeFazio, Oregon             Doug Lamborn, Colorado
    Maurice D. Hinchey, New York         Mary Fallin, Oklahoma
    Patrick J. Kennedy, Rhode Island     Adrian Smith, Nebraska
    Ron Kind, Wisconsin                  Robert J. Wittman, Virginia
    Lois Capps, California
    Jay Inslee, Washington
    Mark Udall, Colorado
    Joe Baca, California
    Hilda L. Solis, California
    Stephanie Herseth Sandlin, South
        Dakota
    Heath Shuler, North Carolina

                         James H. Zoia, Chief of Staff
                           Rick Healy, Chief Counsel
                Christopher N. Fluhr, Republican Staff Director
                     Lisa Pittman, Republican Chief Counsel
                                     ------

                                    CONTENTS

                                  ----------
                                                                       Page

    Hearing held on Wednesday, April 9, 2008.........................     1

    Statement of Members:
        Boren, Hon. Dan, a Representative in Congress from the State
          of Oklahoma, Statement submitted for the record............    78
        Kildee, Hon. Dale, a Representative in Congress from the
          State of Michigan..........................................    47
        Rahall, Hon. Nick J., II, a Representative in Congress from
          the State of West Virginia.................................     2
            Prepared statement of....................................     3

    Statement of Witnesses:
        Andy, Fidelia, Chairwoman, Columbia River Inter-Tribal Fish
          Commission.................................................    61
            Prepared statement on H.R. 5680..........................    63
        Cason, Hon. James, Associate Deputy Secretary, U.S.
          Department of the Interior.................................     4
            Prepared statement on H.R. 5608..........................     6
        Danforth, Hon. Gerald, Chairman, Oneida Business Committee,
          Oneida Tribe of Indians of Wisconsin.......................    32
            Prepared statement on H.R. 5608..........................    34
        Day, Hon. Kevin, Chairman, Tuolumne Band of Me-Wuk Indians...    53
            Prepared statement on H.R. 3490..........................    54
        Forsgren, Dennis Lee, Jr., Consultant, Miccosukee Tribe of
          Indians of Florida.........................................    71
            Prepared statement on H.R. 5680..........................    72
        Gidner, Jerry, Director, Bureau of Indian Affairs............    40
            Prepared statement on H.R. 5680, H.R. 3522, H.R. 3490, S.
              2457...................................................    43
        Hogen, Hon. Philip N., Chairman, National Indian Gaming
          Commission.................................................     9
            Prepared statement on H.R. 5608..........................    10
        McSwain, Robert G., Acting Director, Indian Health Service...    13
            Prepared statement on H.R. 5608..........................    15
        Rolin, Hon. Buford, Chairman, Poarch Band of Creek Indians...    25
            Prepared statement on H.R. 5608..........................    27
        Shirley, Dr. Joe, President, The Navajo Nation...............    22
            Prepared statement on H.R. 5608..........................    24
        Welsh-Tahbo, Hon. Valerie, Secretary, Tribal Council,
          Colorado River Indian Tribes...............................    49
            Prepared statement on H.R. 5680..........................    51

    Additional materials supplied:
        Jicarilla Apache Nation, Letter submitted for the record on
          H.R. 3522..................................................    79
        Lummi Indian Nation, Statement submitted for the record on
          H.R. 5608..................................................    80
        McIntosh, Paul, Executive Director, California State
          Association of Counties, Letter submitted for the record...    81
        McNeil, Chris E., Jr., President & CEO, Sealaska Corporation,
          Statement submitted for the record on H.R. 5680............    81
        National Congress of American Indians, Statement submitted
          for the record.............................................    83
        Snow, Ronda J., Lac du Flambeau Tribal Member, and Ginew
          Grandmother Spokesperson, Letter submitted for the record
          on H.R. 5680...............................................    91
        Stevens, Ernest L., Jr., Chairman, National Indian Gaming
          Association, Statement submitted for the record on H.R.
          5608.......................................................    91
    LEGISLATIVE HEARING ON 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; H.R. 3522, TO RATIFY A
            CONVEYANCE OF A PORTION OF THE JICARILLA APACHE RESERVATION TO
            RIO ARRIBA COUNTY, STATE OF NEW MEXICO, PURSUANT TO THE
            SETTLEMENT OF LITIGATION BETWEEN THE JICARILLA APACHE NATION
            AND RIO ARRIBA COUNTY, STATE OF NEW MEXICO, TO AUTHORIZE
            ISSUANCE OF A PATENT FOR SAID LANDS, AND TO CHANGE THE EXTERIOR
            BOUNDARY OF THE JICARILLA APACHE RESERVATION ACCORDINGLY, AND
            FOR OTHER PURPOSES; H.R. 3490, TO TRANSFER ADMINISTRATIVE
            JURISDICTION OF CERTAIN FEDERAL LANDS FROM THE BUREAU OF LAND
            MANAGEMENT TO THE BUREAU OF INDIAN AFFAIRS, TO TAKE SUCH LANDS
            INTO TRUST FOR TUOLUMNE BAND OF ME-WUK INDIANS OF THE TUOLUMNE
            RANCHERIA, AND FOR OTHER PURPOSES; S. 2457, A BILL TO PROVIDE
            FOR EXTENSIONS OF LEASES OF CERTAIN LAND BY MASHANTUCKET PEQUOT
            (WESTERN) TRIBE; AND H.R. 5680, TO AMEND CERTAIN LAWS RELATING
            TO NATIVE AMERICANS, AND FOR OTHER PURPOSES.
                                  ----------

                            Wednesday, April 9, 2008

                         U.S. House of Representatives

                         Committee on Natural Resources

                                Washington, D.C.

                                  ----------

        The Committee met, pursuant to call, at 10:05 a.m. in Room
    1324, Longworth House Office Building, Hon. Nick J. Rahall, II
    [Chairman of the Committee] presiding.
        Present: Representatives Rahall, Smith, Kind, Grijalva,
    Inslee, Sarbanes, Kildee, Baca and Napolitano.

    STATEMENT OF THE HONORABLE NICK J. RAHALL, II, A REPRESENTATIVE
              IN CONGRESS FROM THE STATE OF WEST VIRGINIA

        The Chairman. The Committee is meeting today to receive
    testimony on several bills of interest to Indian tribes, H.R.
    5608, H.R. 3522, H.R. 3490, and S. 2457.
        H.R. 5608, the Consultation and Coordination with Tribal
    Governments Act, is a measure which I introduced with my dear
    friend, Congressman Dale Kildee. There is a maxim from ancient
    Roman law regarding the need for consultation. I will not
    attempt the Latin, but it translates to: What touches all must
    be approved by all.
        When it comes to issues affecting Indian Country, it seems
    almost everyone, with the exception of the Administration,
    understands what this means. It means that Indian tribes are
    governments and as such must be consulted with, not dictated
    to. My bill simply requires that Federal agencies establish a
    consultation process that is to be used prior to taking an
    action which would have a direct effect on Indian tribes. It
    tracks an executive order President Clinton issued in 2000.
        Now, I expect we will hear opposition to this bill from the
    Administration that it is too costly or somehow unworkable,
    unnecessary and generally difficult to implement, yet I think
    tribes will say that having new mandates forced upon them is
    costly, unworkable, unnecessary and generally very difficult to
    implement. Throughout history when Indian policy has been made
    without tribal input, the results have been failure after
    failure. When Indian tribes are consulted and a part of the
    process up front, the results are successful policies.
        I wish it were not necessary to have this legislation, but
    time after time this Administration has set out new policies
    and mandates with no consultation whatsoever or, maybe even
    worse, sending out letters notifying tribes of soon to be
    announced policies and calling that action consultation.
        On January 3 of this year, the Bureau of Indian Affairs
    released a memorandum containing what was called guidance on
    taking off-reservation land into trust for gaming purposes. It
    instituted a never before discussed or heard of ``commutable
    distance test'' to every land into trust application where the
    land being acquired is a commutable distance from the current
    reservation. Then immediately the next day, several pending
    land into trust applications were denied. The very next day.
        The BIA can sure move quickly when it wants to. Land into
    trust applications lie around for years. A new policy--oh,
    excuse me, new guidance--is released and bam, the next day
    letters go out disapproving several applications.
        Now, I am not saying that taking land into trust far from a
    reservation is not a valid issue, but there is no law or
    regulation opposing it and it is a valid issue for discussion,
    for consultation. I cannot say whether or not those
    applications were worthy, but I can say that the Indian tribes
    who spent time and money on them are worthy of consultation.
        Another example of the need for this legislation occurred
    when the National Indian Gaming Commission issued proposed
    regulations to redefine Class 2 operations without adequate
    tribal consultation. The Commission then released an economic
    impact study which showed that their proposed regulations would
    negatively impact the revenues of Indian tribes.
        My understanding is these proposed regulations are even
    today still under consideration by the Commission. This
    disregard of working with tribes in meaningful--and I stress
    meaningful--consultation is not working, and it is not fair.
    The Committee has invited the witnesses here today to testify
    on this legislation, and I promise you we will listen to what
    you have to say and take your positions and recommendations
    seriously.
        With that, I conclude my opening statement. I see no
    Ranking Member on the Republican side, so we will proceed with
    the panel.
        Our first panel in regard to H.R. 5608 is composed of The
    Honorable James Cason, Associate Deputy Secretary, U.S.
    Department of the Interior; The Honorable Philip Hogen, the
    Chairman of the National Indian Gaming Association; and Mr.
    Robert McSwain, Acting Director, Indian Health Service.
        Gentlemen, we welcome you to the Committee. We have your
    prepared testimonies. They will be made part of the record as
    if actually stated, and you will have five minutes to summarize
    or proceed as you wish.
        I see we have in the audience this morning an old friend,
    Tadd Johnson, a former staff director of our Indian Affairs
    Subcommittee, as well as the former chairman of the National
    Indian Gaming Commission. Tadd is here visiting with his family
    from Minnesota. It is nice to see you back, and we welcome you
    as well, Tadd.

           Statement of The Honorable Nick J. Rahall, II, Chairman,
                         Committee on Natural Resources

        The Committee is meeting today to receive testimony on several
    bills of interest to Indian tribes: H.R. 5608, H.R. 3522, H.R. 3409, S.
    2457 and H.R. 5680.
        H.R. 5608, the ``Consultation and Coordination with Tribal
    Governments Act'' is a measure which I introduced with my dear friend
    Congressman Dale Kildee.
        There is an maxim from ancient Roman law regarding the need for
    consultation. I will not attempt the Latin but it translates to--What
    touches all must be approved by all.
        When it comes to issues affecting Indian Country, it seems almost
    everyone, with the exception of the Administration, understands what
    this means. It means that Indian tribes are governments and as such
    must be consulted with--not dictated to.
        My bill simply requires that Federal agencies establish a
    consultation process that is to be used prior to taking an action which
    would have a direct effect on Indian tribes. It tracks a an Executive
    Order President Clinton issued in 2000.
        Now I expect we will hear opposition to this bill from the
    Administration. That it is too costly, or somehow unworkable,
    unnecessary, and generally difficult to implement. Yet, I think tribes
    will say that having new mandates forced upon them is costly,
    unworkable, unnecessary and generally very difficult to implement.
        Throughout history when Indian policy has been made without tribal
    input the results have been failure after failure. When Indian tribes
    are consulted and a part of the process up front, the results are
    successful policies.
        I wish it were not necessary to have this legislation. But time
    after time, this Administration has set out new policies and mandates
    with no consultation what so ever--or maybe even worse--sending out
    letters notifying tribes of soon to be announced policies and calling
    that action--``consultation.''
        On January 3rd of this year, the Bureau of Indian Affairs released
    a memorandum containing what was called, ``Guidance on taking off-
    reservation land into trust for gaming purposes.'' It instituted a
    never before discussed or heard of, ``commutable distance test'' to
    every land into trust application where the land being acquired is a
    ``commutable'' distance from the current reservation.
        Then immediately the next day, several pending land into trust
    applications were denied. The very next day! The BIA can sure move
    quickly when it wants to.
        Land into trust applications lie around for years--a new policy--
    oh, excuse me, new ``guidance'' is released and BAM, the next day
    letters go out disapproving several applications.
        Now, I am not saying that taking land into trust far from a
    reservation is not a valid issue. But there is no law or regulation
    opposing it and it is a valid issue for discussion, for consultation. I
    cannot say whether or not those applications were worthy, but I can say
    that the Indian tribes who spent time and money on them are worthy of
    consultation.
        Another example of the need for this legislation occurred when the
    National Indian Gaming Commission issued proposed regulations to
    redefine Class Two operations without adequate tribal consultation. The
    Commission then released an economic impact study which showed that
    their proposed regulations would negatively impact the revenues of
    Indian tribes. My understanding is these proposed regulations are even
    today still under consideration by the Commission.
        This disregard of working with tribes in meaningful consultation is
    not working and it is not fair.
        The Committee has invited the witnesses here today to testify on
    this legislation. And I promise you that we will listen to what you
    have to say and take your positions and recommendations seriously.
        Thank you.
                                     ______

        The Chairman. All right. Mr. Secretary, do you want to
    proceed? We welcome you once again to the Committee.

       STATEMENT OF THE HONORABLE JAMES CASON, ASSOCIATE DEPUTY
               SECRETARY, U.S. DEPARTMENT OF THE INTERIOR

        Mr. Cason. Thank you, Mr. Chairman. It is my pleasure to
    come visit again.
        Good morning, Mr. Chairman and Members of the Committee. My
    name is James Cason. I am the Associate Deputy Secretary at the
    Department of the Interior. I am here today to testify on H.R.
    5608, which imposes additional requirements upon the
    government-to-government consultation policies already adopted
    by the Federal government for issues affecting Indian tribes.
    The Department strongly supports government-to-government
    consultation. However, we strongly oppose this legislation.
        I would like to stress that the Department is in compliance
    with Executive Order 13175, engaging in both formal and
    informal consultation with Indian tribes on a regular basis.
    Formal consultation takes place when the Department is
    considering new policies or regulations that would have
    substantial direct effects on the tribes.
        The Department is also guided by a number of issues by
    tribal advisory bodies to address tribal specific needs,
    including the Bureau of Indian Affairs/Tribal Budget Advisory
    Committee and its subcommittees, the Indian Reservation Roads
    Program Coordinating Committee, the Self-Governance Advisory
    Committee, the Special Trustee's Advisory Board and the
    Intertribal Monitoring Association.
        The Department's bureaus further take a proactive approach
    on reaching out to tribal governments to communicate and work
    with them on day-to-day issues and engage in negotiated
    rulemaking with Indian tribes where appropriate. Specific
    examples are included in my written testimony that has been
    entered for the record.
        While the Department firmly believes in the need for
    dialogue in consultation with Indian tribes, it must object to
    this attempt to subvert the tenor and requirements of the
    executive order intended only to improve the internal
    management of the Executive Branch, and turn it into a
    congressional mandate that encourages litigation and creates an
    unworkable consultation structure. We do not believe this
    legislation is necessary or practical.
        H.R. 5608 would be impractical to administer due to its
    breadth and impact. The bill significantly alters Executive
    Order 13175, which is only intended to provide internal
    guidance for Federal agencies. H.R. 5608 would change the
    standard of when consultation would be required from
    substantial to likely impact, vastly increasing the number of
    tribes for which the Department must consult when taking
    action. Further, it would broaden the scope of what types of
    action would need formal consultation to cover almost
    everything any bureau in the Department does.
        H.R. 5608 would turn an executive order that specifically
    states it is not intended to create causes of action against
    the government into a statutory mandate that has the potential
    to create massive amounts of litigation. As one involved in
    extensive litigation in Indian affairs, I would like to avoid
    that if possible.
        This legislation fails to take into account the vast
    amounts of time, funds and staff resources that would be needed
    to engage in formal consultation on every agency action. It
    also fails to account for emergency situations and removes the
    Secretary's discretion.
        In summary, enactment of this bill would result in halting
    virtually every action within the Department that involves
    Indians. Even executive communication with Congress would be
    stifled. For instance, in order to testify on this piece of
    legislation if it were enacted, the Department would have to
    provide ample opportunity for tribes to provide input and
    recommendations on the Department's views on this legislation.
        In order to testify, the Department would need to: 1] Send
    a Dear Tribal Leader letter to the leaders of 562 Federally
    recognized tribes asking for their input and recommendations
    before the Department began to formulate its response and
    notifying them of at least one consultation session; 2] We
    would have to provide the tribal leaders at least 30 days for
    tribal comments; 3] We would have to hold a consultation
    session, of which tribal leaders request at least 30 days
    notice.
        We would have to review their comments over the next
    several weeks, formulate proposed legislative comments, repeat
    Steps 1 through 5, and then send a final Dear Tribal Leader
    letter relating the chosen comments and then, finally, wait 60
    days from the date of sending the final Dear Tribal Leader
    letter before providing legislative comments to this committee,
    sometime around August or September of this year, barring any
    possible delay from litigation on the matter.
        Several months would go by before the Department would be
    able to provide a response to proposed legislation or even to
    simple congressional inquiries. To put it in real terms, I
    would not be able to testify for this hearing until August if
    this bill were in effect. Such a formalized system is just
    unworkable in practice.
        The executive order works well because it provides internal
    management guidance. The Department has embraced this guidance
    and gone to great effort to implement its terms. In accordance
    with the directives of Executive Order 13175, each bureau of
    the Department has adopted a consultation policy and, as I
    previously mentioned, engages in both formal and informal
    consultation with Indian tribes on a regular basis.
        There is no need for the executive order to be broadened
    nor for it to be enacted into law. We welcome the opportunity
    to work with the Committee and Indian Country on improvements
    to the consultation process.
        This concludes my remarks. I would be happy to answer any
    questions the Committee may have. Thank you.
        [The prepared statement of Mr. Cason follows:]

             Statement of James Cason, Associate Deputy Secretary,
                 U.S. Department of the Interior, on H.R. 5608

        Good morning, Mr. Chairman and Members of the Committee. My name is
    James Cason and I am the Associate Deputy Secretary at the Department
    of the Interior (Department). I am here today to testify on H.R. 5608,
    which imposes additional requirements upon the government-to-government
    consultation policies already adopted by the Federal government for
    issues affecting Indian tribes. The Department strongly supports
    government-to-government consultation, however, we strongly oppose this
    legislation.
        While the Department firmly believes in the need for dialogue and
    consultation with Indian tribes, it must object to this attempt to
    subvert the tenor and requirements of an Executive Order ``intended
    only to improve the internal management of the executive branch'', and
    turn it into a Congressional mandate that encourages litigation and
    creates an unworkable consultation structure. We do not believe this
    legislation is necessary or practical.
        In accordance with the directives of Executive Order (E.O.) 13175,
    which this legislation seeks to alter, each Bureau of the Department
    has adopted a consultation policy. The Bureau of Indian Affairs (BIA)
    developed its policy on December 13, 2000.
        I would like to stress that the Department is in compliance with
    E.O. 13175. The Department already engages in both formal and informal
    consultation with Indian tribes on a regular basis.
        Formal consultation takes place when the Department is considering
    new policies or regulations that would have substantial direct effects
    on the tribes. This type of government-to-government consultation
    includes mailing letters to all 562 federally recognized Indian tribes
    and asking for their advice on whether action is needed. Tribes
    generally have at least 30 days to comment in writing and also have the
    option of making comments and suggestions at one or more tribal
    consultation sessions. This occurs even before any Notice of Proposed
    Rulemaking is published for public comment in the Federal Register.
        The Department is guided on a number of issues by tribal advisory
    bodies to address tribal-specific needs. These include the Bureau of
    Indian Affairs/Tribal Budget Advisory Committee and its subcommittees,
    the Indian Reservation Roads Program Coordinating Committee, the Self-
    Governance Advisory Committee, the Special Trustee's Advisory Board,
    and the Intertribal Monitoring Association. We are in the process of
    working with the National Congress of American Indians to create
    committees to guide the BIA's modernization initiative.
        The Department's Bureaus further take a proactive approach of
    reaching out to tribal governments to communicate and work with them on
    day-to-day issues. For example, the Fish and Wildlife Service (FWS)
    routinely works with the tribes on migratory bird and endangered
    species issues. The Bureau of Reclamation has several agreements with
    tribes regarding water management issues. The National Parks Service
    (NPS) has several Memoranda of Understanding and agreements with tribes
    that have historical association with particular units of the park
    system. The NPS also regularly conducts meetings with tribes to discuss
    issues of mutual concern, including the use of natural resources and
    access to sacred sites. The Office of Surface Mining works with tribes
    on operational issues and regulatory activities. The Bureau of Land
    Management (BLM) consults with Indian tribes on a regular basis
    regarding a range of projects and issues, including land use plans and
    on-the-ground projects. In particular, the Native American Minerals
    Management Group in the Arizona State Office coordinates and consults
    with tribes on mineral operations such as leasing and monitoring.
        The Department has also engaged in negotiated rulemaking with
    Indian tribes where appropriate. For example, negotiated rulemaking was
    used by the BIA to develop new rules implementing the Indian Self-
    Determination and Education Assistance Act (ISDEA) and the Indian
    Reservation Roads programs, by the Bureau of Indian Education to
    implement the No Child Left Behind Act, and by the Minerals Management
    Service for Indian gas valuation.
    H.R. 5608
        H.R. 5608 would be impractical to administer due to its breadth and
    impact. The bill significantly alters E.O. 13175. It would change the
    standard of when consultation would be required (substantial to likely
    impact). It would change the scope of what types of actions would need
    formal consultation. It would turn an internal guidance that
    specifically states it is not intended to create causes of action
    against the government to a statutory mandate that has the potential to
    create massive amounts of litigation. In addition to exponentially
    increasing the number of actions requiring formal consultation, it
    fails to account for emergency situations and removes the Secretary's
    discretion.
        E.O. 13175 requires consultation with tribes regarding
    ``regulations, legislative comments or proposed legislation, and other
    policy statements or actions that have substantial direct effects 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.'' In
    contrast, H.R. 5608 changes this standard to require consultation for
    ``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.''
        H.R. 5608 broadens the scope of when formal consultation is needed
    to cover almost everything any Bureau of the Department does. The bill
    expands the requirement to consult with Indian tribes to include
    guidance, clarification, standards, or sets of principles. This
    language is so broad that many day-to-day agency actions would be
    affected.
        The language of the bill is also too vague and overbroad to provide
    sufficient direction to the Department. We understand that many of
    these terms are in E.O. 13175, which this legislation tracks, but
    ambiguity in a statute is far more problematic than ambiguity in a
    document intended for internal guidance. For instance, the term
    ``accountable consulting process'' does not define to whom the agencies
    will be held accountable or in what manner. Litigants could try to
    raise arguments about interpretation regarding virtually every phrase
    of the legislation in lawsuits to determine what constitutes ``has or
    is likely to have a direct effect'', ``tribal implications'', ``fully
    considered'', ``ample opportunity'', ``substantial direct compliance
    cost'', ``accountable consultation process'', and other terms used in
    this bill.
        The legislation moreover vastly increases the number of tribes with
    which the Department must consult when taking action. Under the
    legislation, the Department would be required to formally consult with
    any tribe upon which the action has or is likely to have a direct
    effect. This is a fundamental and far-reaching change from the wording
    of E.O. 13175, which requires consultation, whether formal or informal,
    with any tribe upon which the action would have a substantial direct
    effect.
        The ambiguity in the language and the change in standard would
    result in halting virtually every action of the Department. Even
    Executive communication with the Congress would be stifled. For
    instance, in order to testify on this piece of legislation if it were
    enacted, the Department would have to provide ample opportunity for
    tribes to provide input and recommendations on the Department's views
    on the legislation. In order to testify, the Department would need to:
        1.  send a ``Dear Tribal Leader'' letter to the leaders of 562
    federally recognized tribes asking for their input and recommendations
    before the Department began to formulate its response and notifying
    them of at least one consultation session;
        2.  provide the tribal leaders at least 30 days for tribal
    comments;
        3.  hold the consultation session, of which tribal leaders request
    at least 30 days notice;
        4.  review over several weeks the tribal input and recommendations;
        5.  formulate the proposed legislative comments;
        6.  repeat steps 1-5;
        7.  send a final ``Dear Tribal Leader'' letter relating the chosen
    comments; and
        8.  wait 60 days from the date of sending the final ``Dear Tribal
    Leader'' letter before providing the legislative comments to the
    Committee this August barring a possible delay by any litigation on the
    matter.
        Several months would go by before the Department would be able to
    provide a response to proposed legislation or even to simple
    Congressional inquiries. Such a formalized system is unworkable in
    practice.
    Exigent Circumstances
        The legislation also does not make an exception for emergency
    situations. Section 2(1)(D) requires the Department to wait 60 days
    after written notification to tribal officials before taking any
    action. The Department's agencies would be left with no ability to
    bypass consultation in exigent circumstances such as a forest fire that
    threatens human lives or trust resources as happened in southern
    California this summer. Quick action by the BLM, the BIA, and other
    agencies minimized the fire damage, protected sacred cultural and
    tribal governmental sites, and provided housing and emergency services
    to tribal members and the affected public. The Department would be
    faced with either not protecting the public and tribal resources or not
    complying with this Act.
    Cost
        The cost of implementing this bill would be prohibitive. Formal
    consultations are very expensive to conduct. They involve substantial
    travel and lodging costs for Federal employees as well as costs to host
    and conduct the meetings. Significant costs associated with meetings
    included numerous individual and follow up meetings with tribes, rental
    of meeting rooms, travel, and technical expertise.
    The Trust
        The legislation also appears to remove or diminish the Secretary's
    discretion and in fact, in some cases, to upend the trust relationship.
    The Secretary manages trust assets not only for Indian tribes, but also
    to individual Indians. It is possible for the interests of an
    individual Indian to run counter to the interests of his or her tribe.
    It is part of the Secretary's responsibility to balance these competing
    interests. H.R. 5608 would unavoidably tilt this balancing act by
    mandating consultation with tribes in formulating policies, even where
    those policies pertain primarily to individual Indians. This would pose
    a clear conflict.
        In addition, there are also instances in which an individual Indian
    will petition the Department for relief from the actions of that
    individual's tribe. H.R. 5608 would greatly complicate the Department's
    ability to act as a facilitator in those situations if the Department
    is required to formally consult with the Tribe that has taken the
    actions from which the individual is seeking redress.
    Exposure of Confidential Information
        Key government concerns and interests, potentially including Indian
    trust data policies, could be exposed to the public under the proposed
    legislation as it fails to exempt confidential policies from
    disclosure. For example, the Minerals Management Service's Minerals
    Revenue Management (MRM) program collects, accounts for, and
    distributes revenues associated with mineral production from leased
    federal and Indian lands. Under Section 2(1)(C) of the bill, compliance
    targeting methodologies or tolerances could be exposed and thereby
    grossly undermine the Department's ability to protect trust assets.
        The bill could create a need to consult with tribes on lawsuits in
    which a tribe is an opposing party, a co-party or not involved with the
    litigation but affected by the litigation in some way, which could
    require the government to share privileged legal opinions, litigation
    strategies, and risk assessments. Additionally, if the legislation is
    followed, the MMS may be required to consult with Indian landowners on
    mineral litigation and leases even when there are no Indian minerals at
    stake.
    Federalism Concerns
        We are concerned that the bill creates federalism and separation of
    powers problems by intruding into the process for federal policymaking.
    By enacting this legislation, Congress would be prohibiting the
    Executive Branch from making essential daily operational decisions.
        The Department of Justice has long noted that legislation
    containing ``specific directives to a particular executive agency to
    solicit and consider comments or recommendations from another
    agency....clearly constitute[s] an inappropriate intrusion by Congress
    into executive branch management and an encroachment on the President's
    authority with respect to deliberations incident to the exercise of
    executive power.'' Common Legislative Encroachments on Executive Branch
    Authority, 13 Op. O.L.C. 248, 253 (1989). It has also stated that the
    Executive Branch should object to legislation such as H.R. 5608 that
    ``unnecessarily interferes with the flexibility and efficiency of
    decision making and action,'' such as legislation attempting ``to
    dictate the processes of executive deliberation'' or ```micromanaging''
    executive action.'' The Constitutional Separation of Powers Between the
    President and Congress, 20 Op. O.L.C. 124, 135 (1996). Such legislation
    ``threaten[s] the structural values protected by the general separation
    of powers principle'' and ``undercuts the constitutional purpose of
    creating an energetic and responsible executive branch.'' Id. H.R. 5608
    is inconsistent with these core separation of powers principles and
    purposes.
    Conclusion
        The Department of the Interior is strongly opposed to the enactment
    of H.R. 5608. Not only will it substantially increase litigation
    against the Federal Government, it fails to take into account the vast
    amounts of time, funds, and staff resources that would be needed to
    engage in formal consultation on every agency action.
        The Executive Order works well because it provides internal
    management guidance. The Department has embraced this guidance and gone
    to great effort to implement its terms. There is no need for the
    Executive Order to be broadened, nor for it to be enacted into law. We
    welcome the opportunity to work with the Committee and Indian Country
    on improvements to the consultation process.
        This concludes my remarks. I will be happy to answer any questions
    the Committee may have. Thank you.
                                     ______

        The Chairman. Chairman Hogen?

              STATEMENT OF THE HONORABLE PHILIP N. HOGEN,
              CHAIRMAN, NATIONAL INDIAN GAMING COMMISSION

        Mr. Hogen. Good morning, Mr Chairman. I would like to
    acknowledge the presence of Commissioner Norm DesRosiers, Vice
    Chair of the Commission, who accompanied me here this morning.
    I appreciate the opportunity to offer the NIGC's views on this
    proposed legislation.
        I grew up in Kodoka, which is seven miles north of the Pine
    Ridge Reservation out in South Dakota. We had an old gunsmith
    there by the name of Pete Stout, and one of the things that
    Pete used to say was it is a mighty mean man that won't sign a
    petition. It is kind of with those kinds of feelings that I say
    I can't embrace this legislation that would enhance
    consultation.
        Consultation is important, and we at NIGC do think as much
    of it as anybody does. It is probably not a perfect process,
    but I think it is effective, and I think if you make it too
    complicated, and I would identify with the remarks that
    Assistant Secretary Cason has made. If you get too many rules,
    you will just bring the process to a halt.
        I would like to basically share with the Committee how we
    go about consultation at NIGC. We obviously have a multitude of
    issues that we deal with. We only have 230 tribes that are
    actually engaged in gaming. We don't have 562 that we do
    business with every day, but we obviously can't go to all of
    those reservations on every issue that arises before us, and so
    we try to schedule regional consultations on a regular basis,
    trying to coordinate those meetings when tribes are gathered
    together for other purposes, like they will be meeting out in
    San Diego, the National Indian Gaming Association meeting later
    this month, and they will be out in Reno for the NCAI meeting.
        We send letters. We identify the issues that we would like
    to discuss and invite tribes to come speak with us. Many tribes
    accept those invitations. Many do not. We attempt to
    accommodate their schedules as we do that. We sit down. We try
    to tell them what we are doing, and we invite their views on
    the topics.
        Occasionally, we will schedule a session that will be
    specific to one particular issue. This gaming classification
    issue that, Mr. Chairman, you mentioned in your opening
    remarks, is one of those. We did over 60 consultations, I
    think, with respect to that. All of those were on the record.
    We have the transcripts of those consultations on our website.
        But government requirements that sometimes agencies be
    nimble and to go out and do 60 consultations on each and every
    issue or more are impractical, and I am afraid that requiring
    this and giving a cause of action if there is a challenge to
    the quality of the consultation would be very problematic.
        I think the concern the tribes often have with NIGC, more
    so than did we adequately consult, was that we didn't agree
    with everything they said when we did consult, and I don't
    think that you can condemn the process just because the NIGC
    didn't agree.
        I think we did consult, and we often are sympathetic to
    their points of view. I would like to see tribes make as much
    money as they possibly can gaming and not have to send the
    states a nickel, but we have statutory rules we have to apply,
    and sometimes we can't then go where they would like us to go
    in doing that. We have honest disagreements with respect to how
    that works.
        The legislation also references unfunded mandates. Well,
    NIGC is, I think, qualitatively distinguishable from agencies
    like HUD and maybe BIA in terms of the programs that they
    conduct for the benefit of Indian people, building houses or
    providing roads, and things of that nature.
        We are a regulatory agency. Now, we ought to consult with
    the tribes when we make the rules, and when it comes to time to
    actually apply those rules, I don't think you can hold a
    consultation each and every time that you make a decision that
    would in effect adjudicate some of those issues that are before
    us, and I am not sure that under the bill as drafted that is
    adequately distinguished.
        So as I said, we do a lot of consultation. We have, I
    think, an effective policy. It is probably not perfect and we
    will try to do better, but if our hands become tied and we get
    sued every time somebody questions whether the consultation was
    adequate, I think things would grind to a halt.
        That wouldn't be good for Indian gaming. It wouldn't be
    good for Indian Country. It wouldn't be good for Indian people.
    But we certainly are supportive of the concept and attempt to
    adhere strictly to the executive order and our adopted
    consultation policy.
        Thank you, Mr. Chairman. I would be happy to try and
    respond to any questions you might have.
        [The prepared statement of Mr. Hogen follows:]

                      Statement of Phil Hogen, Chairman,
                National Indian Gaming Commission, on H.R. 5608

        Chairman Rahall and members of the Committee: Thank you for
    allowing me to speak with you today. I am Phil Hogen, Chairman of the
    National Indian Gaming Commission. I am here to comment on H.R. 5608, a
    bill to establish regular and meaningful consultation and collaboration
    with tribal officials.
        H.R. 5608 identifies NIGC, the Department of the Interior and the
    Indian Health Service as agencies requiring an accountable consultation
    process. Without a doubt, the need for tribal consultation applies to
    many federal agencies and programs, and certainly--and prominently--to
    the work of the National Indian Gaming Commission (NIGC).
        NIGC is firmly committed to the consultation process. The agency is
    strongly opposed to this bill, however.
        In keeping with the obligation to consult, NIGC adopted its
    consultation policy in early 2004 and published it in the Federal
    Register. A copy is attached. This policy was itself a product of the
    Commission's consultation with tribes as it was formulated. In the
    course of formulating this policy, NIGC also gathered and examined the
    consultation policies of other federal agencies, and discussed the
    utility of those policies with those agencies.
        The question that the bill seeks to answer, I believe, is what kind
    of consultation constitutes adequate, accountable consultation. This
    bill does not answer that question, and it certainly does not answer
    the question as to how the NIGC, a regulatory agency, can meet these
    new consultation responsibilities while at the same time effectively
    fulfilling its statutory obligations under the Indian Gaming Regulatory
    Act. In fact, it is our firm belief that enactment of this legislation
    would eviscerate the agency's good faith ability to regulate.
        We continue to seek consultation in the most effective ways. While
    there are 562 recognized tribes in the United States, only about 230
    are engaged in Indian gaming, and so it is that group to whom the NIGC
    has most often turned for consultation. The great breadth of tribal
    diversity is reflected in their varying cultures, economies, and
    geography. They vary from having large land bases to small, large
    tribal membership to small, urban settings to rural. Some are found in
    jurisdictions where there is much non-tribal commercial gaming and
    others where gambling opportunities are almost exclusively tribal.
    Thus, the Commission quickly learned that a position or policy favored
    by tribes with small land bases and memberships, located where huge
    urban populations make for great market opportunities, will not
    necessarily be favored by tribes with large tribal memberships and
    large, remote, rural reservations near no large population centers.
        It is not possible, of course, for the Commission to visit every
    tribe on its reservation each time an issue or policy might affect
    tribes. Gaming tribes have formed regional gaming associations, such as
    the Great Plains Indian Gaming Association (GPIGA), the Oklahoma Indian
    Gaming Association (OIGA), the Washington Indian Gaming Association
    (WIGA), the California Nations Indian Gaming Association (CNIGA), the
    Midwest Alliance of Sovereign Tribes (MAST), and the New Mexico Indian
    Gaming Association (NMIGA), among others, as well as national
    organizations such as National Indian Gaming Association (NIGA),
    National Congress of American Indians (NCAI) and United South and
    Eastern Tribes (USET). Those organizations meet annually or more often,
    and NIGC has taken those opportunities to invite tribal leadership to
    attend consultation meetings on a NIGC-to-individual-tribe basis.
    Consulting at gaming association meetings maximizes the use of the
    Commission's time and minimizes the travel expenses that tribes, who
    ordinarily attend those meetings anyway, must expend for consultation.
        Many tribes accept these invitations, many do not. Some tribes send
    their tribal chair, president or governor, and members of their tribal
    council, while others send representatives of their tribal gaming
    commissions, or in some instances staff members of the gaming
    commissions or of the tribal gaming operations. The consultation
    sessions are always most effective when tribal leadership, by way of
    tribal chair or council, is present. The letters of invitation, samples
    of which are attached, identify issues on which NIGC is currently
    focusing and about which the agency is seeking tribal input. The
    letters always include an invitation to discuss any other topics that
    might be of particular interest to an individual tribe. Some tribes
    have limited their consultations to a single issue, such as NIGC's
    proposals to better distinguish gaming equipment permissible for
    uncompacted Class II gaming from that permitted for compacted Class III
    gaming.
        We do not only make ourselves available for numerous consultations,
    but we also listen seriously to what we hear at those consultations.
    The regulations NIGC adopts are published with thorough preambles,
    which attempt to summarize all of the issues raised in the government-
    to-government consultation sessions the Commission has held with
    tribes, as well as those raised by all other commenter's providing
    written comment, during the comment period on the regulation. I have
    attached the preamble from the Commission's recently adopted facility
    license regulation as an example.
        The NIGC does not believe its current consultation practices are
    perfect, but we do believe that they are effective. We also believe
    that consultation should not mean agreement and that the parties
    consulting should not measure the good faith or effectiveness of the
    consultation by whether agreement is reached. Experience has shown that
    there is little or no clamor for consultation if the action being
    considered is favorably received throughout the Indian gaming industry.
    NIGC's recent reduction in the fees it imposes on gross gaming revenues
    to fund NIGC operations provides such an example.
        On the other hand, if the issue the agency is considering is viewed
    as problematic, often there are concerns expressed that consultation
    has been inadequate. A further challenge the NIGC has observed is that
    consultation is most often criticized by tribes when the eventual
    policy that the agency settles on is at odds with the position
    expressed by tribes during consultations. That is, the NIGC's failure,
    from the tribal point of view, was not in the consultation per se but
    rather that the Commission did not agree with tribal points of view. It
    does not seem fair or just that the only consultation deemed adequate
    is that in which the Commission always fully comports with tribal
    points of view. NIGC often finds itself sympathetic to tribal points of
    view, but it is also bound by statutory constraints. For example the
    Indian Gaming Regulatory Act's characterization of a number of gambling
    practices as Class III requires the sanction of tribal-state compacts.
        I am fearful that if legislation such as H.R. 5608 is enacted,
    nearly every policy adopted by the National Indian Gaming Commission
    will be subject to challenge in court by one of the 230 gaming tribes
    on the basis that the regulation was not supported by consultation. I
    am also fearful that the Commission's mission of providing the gaming
    regulation mandated in IGRA will be overwhelmed by such litigation.
        A problem created by the proposed legislation is distinguishing
    ``policies that have tribal implications'' from those that do not. In
    the legislation, the former are defined as:
            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.
        It would seem that this would leave precious little for a
    regulatory agency such as the NIGC to do without first engaging in
    consultation. Determining the extent of the consultation that would be
    adequate likely would be problematic too.
        An example of this would be the agency's position on this
    legislation. The Office of Management and Budget coordinates the views
    of the federal family on legislation that impacts the administration.
    On March 25, 2008, OMB asked the NIGC to provide its views on H.R. 5608
    within the remainder of that week. Needless to say, if H.R. 5608 were
    the law of the land, doing so would have been impossible given the
    requirement that consultations must first occur. Questions that the
    proposed bill also leaves unanswered are: How long would such
    consultation take? How many tribes would have to be consulted? Where
    would that consultation best occur? How would that consultation be best
    documented?
        Next, with respect to the application of consultation requirements,
    I think it is appropriate to draw distinctions between federal agencies
    and their functions. If a federal program will build homes on Indian
    lands for Indian people, certainly extensive consultation ought to
    occur with respect to the implementation of such meritorious programs.
    That federal activity, however, I believe, can be qualitatively
    distinguished from the regulation or oversight that an agency such as
    the National Indian Gaming Commission is mandated to provide.
        While the following example is perhaps too stark, it may have some
    application here. To require that before the basketball referee calls a
    foul or charges a player with ``traveling,'' it would probably be
    impractical and of questionable fairness if on each occasion he or she
    had to first hear the point of view of the player on whom the foul or
    the traveling was called, and of course, in fairness, to hear from the
    opposition, and then the coaches of both teams. As the rules of the
    game are written, those who participate ought to be invited to the
    table to discuss them. However, in the application of those rules,
    consultation is inappropriate and certainly impracticable, and I am
    concerned that similar constraints on regulatory agencies, which might
    be imposed by H.R. 5608, ought to be avoided. The definition found in
    section 2(4), ``Policies that have tribal implications,'' would require
    clarity and need to clearly distinguish the adjudicative functions of
    regulatory agencies from the rulemaking they conduct.
        Similarly, section 6, addressing unfunded mandates, would pose
    great challenges to those who make rules that relate to commercial
    enterprises, such as tribal bingo halls and casinos. If the National
    Indian Gaming Commission imposed a regulation that required
    surveillance cameras to be placed over the counter of the cashiers that
    count the money at the gaming facility, under an enacted H.R. 5608, a
    tribe might argue that such surveillance could not be so required,
    unless the federal government paid for the cameras. First, NIGC does
    not use federal taxpayers' dollars. Instead, the agency's activities
    are supported by fees on the tribes; as a result, requiring federal
    payment of a regulatory cost does not work in the context of NIGC's
    budgetary status. Furthermore, it is not appropriate with respect to
    regulatory requirements for commercial activities such as gaming, which
    the NIGC helps regulate under IGRA.
        Finally, administrative agencies are peculiar in that they exercise
    quasi-executive, quasi-legislative (rulemaking) and quasi-judicial
    (adjudication) functions. Reduced to essentials, rulemaking is the
    adoption of regulations that have the force and effect of law,
    adjudication is the application and further interpretation of those
    rules in particular cases in dispute. Fair process is required for each
    of the processes, but nowhere in the Administrative Procedure Act,
    which is a remarkable and proven body of law by which our federal
    government has successfully operated for over 40 years, are there any
    constraints similar to those which would be imposed by H.R. 5608.
        There is a history to the development of consultation. That the
    United States has trust obligations to Indian tribes is recognized
    explicitly in many treaties. Chief Justice John Marshall, in his famous
    trilogy of opinions written in the 1830s, characterized the
    relationship generally as that of a guardian and ward. While the United
    States is not a common law trustee, the federal-tribal relationship is
    in fact a government-to-government relationship, and as the United
    States fulfills its role in that relationship, it needs to bear its
    obligations in mind. The world has changed much since Chief Justice
    Marshall's time, and not the least of these changes is the positive
    movement by tribes toward self-determination and self sufficiency. In
    recent decades, federal Indian policy has fostered that evolution.
        The United States, of course, needs to consider the needs and
    desires of tribes, and as tribes attain greater political and economic
    stability, the greater the deference the United States ought to afford
    their expressions of need and desire. What this means, of course, is
    that the federal government ought to consult with tribes as it
    formulates and executes policies that impact those tribes.
        President Bush reiterated the Administration's adherence to a
    government-to-government relationship in his Memorandum for the Heads
    of Executive Department and Agencies in September 2004. E.O. 13175
    directs federal agencies to conduct meaningful government-to-government
    consultation with tribes when policies that affect them are formulated.
    Challenges to such policies cannot legally be founded on perceived or
    alleged shortcomings of the consultation process attending those
    policies. This legislation, however, would require a degree of
    collaboration with the regulated community (Indian gaming tribes) that
    is wholly inconsistent with a robust and healthy regulatory mission
    such as NIGC's.
        Thank you for the opportunity to present the Commission's view on
    H.R. 5608. We stand ready to answer any questions.
        [NOTE: Attachments submitted for the record have been retained in
    the Committee's official files.]
                                     ______

        The Chairman. Mr. McSwain?

             STATEMENT OF ROBERT McSWAIN, ACTING DIRECTOR,
                         INDIAN HEALTH SERVICE

        Mr. McSwain. Mr. Chairman and Members of the Committee,
    good morning. I am Robert McSwain, the Acting Director of the
    Indian Health Service. I am pleased to have the opportunity to
    testify on H.R. 5608, a bill to establish regular and
    meaningful consultation in collaboration with tribal officials.
        We are the Indian Health Service, and I think the first
    thing that embodies our relationship with the tribe is our
    mission. The mission of the Indian Health Service, in
    partnership with American Indian and Alaska Native people, is
    to raise their physical, mental, social and spiritual health to
    the highest level possible, so our partnership with tribes is
    embodied in our basic mission.
        Now to H.R. 5608. The IHS strongly opposes this bill
    because it adds unnecessary administration burden that would
    divert resources from the provision of health care services. As
    set forth in my prepared statement, H.R. 5608 is overly broad
    in scope, in defining policies that have tribal implication,
    leaves little or no discretion to the IHS Director by making
    all agency decisions subject to tribal consultation and
    formalizing all contacts between tribes and the IHS, thereby
    diverting limited resources away from the mission of health
    care.
        On the other hand, the bill is too narrow. It only focuses
    on the Department of the Interior, the IHS and the National
    Indian Gaming Commission. I am aware of certainly a lot of
    other departments that are doing great work in consultation
    with tribes, and they are omitted.
        Consultation between the Department of Health and Human
    Services and tribes can be traced back 50 years to Public Law
    83-568, known as the Transfer Act. Several references therein
    require the Secretary of HEW to obtain the consent of the
    governing body of the tribe or its organized council before
    closing a hospital or to contract the provision of services
    with private or other non-Federal health agencies or
    organizations, so we have been duty bound to consult with
    tribes for at least 50 years, 50 plus years.
        DHHS and IHS consultation with tribes has evolved over the
    years and as refinements of consultation policies have occurred
    in consultation and collaboration with tribal leaders. Allow me
    to quote from the current IHS consultation policy:
        ``It is the IHS policy that consultation with Indian tribes
    will occur to the extent practicable and permitted by law
    before any action is taken that will significantly affect
    Indian tribes. Such acts refer to policies that have tribal
    implications and substantial direct effects on one tribe or
    more regarding the relationship between the Federal government
    and the Indian tribes or the distribution of power or
    responsibility between the Federal government and Indian
    tribes.''
        Another excerpt: Nothing in this policy waives the
    government's deliberative process privilege. For example, in
    the instances where IHS is specifically requested by Members of
    Congress to respond to or report on proposed legislation, the
    development of such responses and of related policy is a part
    of the Executive Branch's deliberative process privilege and
    should remain confidential.
        In addition, in specified instances where Congress requires
    the IHS to work with tribes on the development of
    recommendations that may require legislation, such reports,
    recommendations or other products are developed independent of
    an IHS position, the development of which is governed by the
    Office of Management and Budget Circular A-19.
        The IHS consultation policy has been revised on several
    occasions. We regularly update as guided by the following
    statement from the same policy:
        ``This circular considers a wide range of needs and unique
    characteristics in crafting these guidelines. Therefore, it is
    important for the IHS consultation policy to remain dynamic and
    be responsive to changing circumstances that affect Indian
    tribes. The IHS will seek to integrate its efforts with those
    of other Federal departments and agencies. Such
    intradepartmental coordination will benefit the Federal
    departments and agencies, as well as Indian tribes and the
    Indian organization.'' Certainly, the last revision of the IHS
    policy expanded on our current process of consulting on the
    annual budget process.
        The evolution of a tribal consultation in the IHS includes
    the establishment of standing committees. I have listed all
    those committees but, for the record, we have these standing
    committees that advise us on a variety of issues: The Tribal
    Leaders Diabetes Advisory Committee, the Health Promotion
    Disease and Prevention Advisory Committee, Direct Service
    Advisory Committee, et cetera. I won't go through all of them,
    but it is in my statement. These are all made up of either
    tribal leaders or their designees.
        The history of forming tribal-led workgroups, which are
    predominantly tribal people, work on a wide range of policy
    issues such as resource allocation, methodologies and
    organization and structure. The products of these workgroups
    are then consulted with all 562 tribes. On the departmental
    level, HHS also holds regional consultation sessions, in
    addition to a national annual budget and policy consultation
    session, to provide opportunities for Indian tribes and HHS
    officials to discuss various budget and policies issues.
        There are a number of HHS advisory committees throughout
    the Department of Health and Human Services. To name just a
    few, and I know that you will be discussing this a little bit
    more later today on another panel about the Center for Medicaid
    and Medicare services, they have a special technical advisory
    committee group. Centers for Disease Control just established a
    Tribal Consultation Advisory Committee, the HHS American Indian
    and Alaska Native Research Advisory Council.
        The IHS, and certainly the Department, has put considerable
    effort and resources into ensuring that consultation and other
    communication with tribes is accomplished to the largest degree
    practicable. In closing, the provisions of the proposed bill
    clearly are intended to mandate that a high degree of
    consultation with tribes should take place.
        I am here today to state that the IHS and its parent,
    Department of Health and Human Services, routinely undertakes a
    high level of appropriate consultation. As such, we believe the
    legislation would impose an unnecessary burden and limit the
    discretion of the Secretary and the IHS to prioritize health
    care to American Indian and Alaska Native people.
        Thank you for this opportunity to present on behalf of the
    Indian Health Service regarding H.R. 5608. I am pleased to
    answer any questions that you may have. Thank you.
        [The prepared statement of Mr. McSwain follows:]

    Statement of Robert G. McSwain, Acting Director, Indian Health Service,
           U.S. Department of Health and Human Services, on H.R. 5608

        Mr. Chairman and Members of the Committee:
        Good Morning. I am Robert McSwain, Acting Director of the Indian
    Health Service. I am pleased to have the opportunity to testify on H.R.
    5608.
        IHS strongly opposes this bill because it adds unnecessary
    administration burdens that would divert resources from the provision
    of health care services.
        With respect to the scope of the consultation requirements in the
    bill, the section 2(4) definition of ``policies that have tribal
    implications'' is all-encompassing, thus seemingly removing any agency
    discretion from the IHS Director and arguably making all agency
    decisions subject to tribal consultation. Under section 4(3) of the
    bill, IHS would be required to encourage Tribes to develop their own
    policies to carry out IHS programs and IHS would be required to defer
    to such policies if they do not violate other laws. Both of these
    requirements appear to encroach on the authority of the Executive
    Branch. In addition, section 2(1)(D) of the bill requires, without any
    exception, that as part of the proposed accountable consultation
    process, ``any policies that have tribal implications'' shall not
    become effective until at least 60 days after written notification to
    tribal officials. This provision imposes a requirement that fails to
    consider circumstances, including emergencies, in which waiting 60 days
    is not practicable.
        Language in Section 6 of the proposed bill is of great concern
    given our costs to implement much needed improvements to our financial
    systems and the ongoing priority to improve and assure the security of
    our IT systems in the implementation of electronic health records and
    other health management systems beneficial to both the IHS and tribally
    administered health programs. The IHS will not have the funds available
    to make these improvements without negatively impacting services
    provided to the Tribes.
        In the last section of the bill, addressing the process for Indian
    tribes to apply for waivers of statutory and regulatory requirements,
    the language states a decision should be rendered ``not later than 120
    days of receipt of such application by the agency, or as other wise
    provided by Federal law or regulation.'' This proposed change would
    actually increase the current statutory time limit of 90 days and slow
    down the federal response to a tribal request for a waiver.
        The IHS Consultation policy provides for consideration of Tribal
    interests in Federal decision-making policy while assuring that its
    Federally Inherent responsibility is carried out. It also serves all
    Tribes regardless of how Tribes choose to have the IHS funded health
    services administered to its tribal members--by tribal contract or
    compact under the Indian Self-Determination and Education Assistance
    Act for all or portions of their health program, or directly by IHS
    through the federally operated system.
        The IHS provides health services to nearly 1.9 million American
    Indians and Alaska Natives. In carrying out its responsibility, the IHS
    maintains a unique relationship with more than 560 sovereign Tribal
    governments that represent a service population in some of the most
    remote and harsh environments within the United States as well as in
    modern metropolitan locations such as Anchorage and Phoenix. For all of
    the American Indians and Alaska Natives served by these programs, the
    IHS is committed to its mission to raise their physical, mental,
    social, and spiritual health to the highest level possible in
    partnership with Tribes.
        The IHS consultation policy was originally developed in 1997 in
    response to a 1994 Presidential Memorandum to Heads of Executive
    Departments and Agencies, and has been revised in response to the
    subsequent Executive Orders on Consultation and Coordination with
    Indian Tribal Governments, and tribal government requests for
    improvement. The development and revisions of the IHS policy is an
    example of Tribal Consultation in action as it has been the product of
    a workgroup comprised of Tribal Leaders in collaboration with IHS
    federal representatives. The IHS policy on Tribal Consultation was last
    revised and published in January 2006. This revision too was
    accomplished through a workgroup of Tribal Leaders and IHS
    representatives working together to enhance Tribal consultation in
    virtually every facet of our interactions with Indian Tribes. The IHS
    remains committed to carrying out tribal consultation consistent with
    the current Executive Order, Presidential Memorandum, and the
    Department of Health and Human Services (HHS) Tribal Consultation
    policy. We encourage and facilitate increased Tribal participation and
    collaboration at all levels within the IHS system.
        The IHS Tribal Consultation Policy describes our commitment to
    working in partnership on a Government-to-Government basis with Indian
    Tribes. It is designed to enhance collaboration and partnership between
    IHS local operating units, Area Offices, and Headquarters and Indian
    Tribes to ensure that the requirement for Tribal consultation permeates
    the entire IHS system.
        The IHS will consult with Indian Tribes to the extent practicable
    and permitted by law before any action is taken that will significantly
    affect Indian Tribes. This includes policies with Tribal implications
    and that have substantial direct effects on one or more Indian Tribes
    served by the IHS as a result of their special government-to-government
    relationship.
        For example, as partners with the IHS in delivering needed health
    care to American Indians and Alaska Natives, Tribal leaders and health
    program representatives participate each year in an extensive
    consultation process as part of IHS' budget formulation activities.
    This process begins with IHS staff, Tribal leaders and health program
    staff, and Urban Indian health program representatives at each IHS Area
    developing recommendations for budget changes linked to health
    priorities. Then, at a national meeting of Tribal representatives, a
    national set of health priorities and budget recommendations are
    developed based on input from each of the 12 Areas, and which are
    presented by tribal leadership to the Department at its annual Tribal
    budget consultation session. The tribal recommendations guide that
    fiscal year's budget priority setting decisions within the IHS and HHS.
    On other non-budget matters, Tribal consultation also occurs when
    appropriate.
        Currently, the IHS has 8 advisory committees and workgroups
    comprised of Tribal Leaders and/or their representatives established to
    provide input from the Tribal leadership and Tribal community to the
    agency. These advisory committees or workgroups are: Tribal Leaders
    Diabetes Advisory Committee, Health Promotion and Disease Prevention
    Advisory Committee, Direct Service Tribes Advisory Committee, Tribal
    Self Governance Advisory Committee, IHS Budget Formulation Workgroup,
    Contract Support Cost Workgroup, Facilities Appropriations Advisory
    Board. Additionally, a Behavioral Health Advisory Committee is in the
    process of being formed.
        On the Departmental level, HHS also holds regional consultation
    sessions, in addition to the national annual Tribal budget and policy
    consultation session, to provide opportunities for Indian Tribes and
    HHS officials to discuss various budget and policy issues. There are a
    number of HHS advisory committees in which Tribal officials and
    authorized staff participate to communicate their interests and provide
    Tribal input: Center for Medicaid and Medicare Services Tribal
    Technical Advisory Group; Centers for Disease Control's Tribal
    Consultation Advisory Committee; and the HHS American Indian/Alaska
    Native Health Research Advisory Council. The IHS and HHS have already
    put considerable effort and resources into assuring that consultation
    and other communication with Tribes is accomplished to the largest
    degree practicable.
        We believe the IHS Tribal Consultation policy and practices in
    place are an open, collaborative and effective communication process
    that have greatly enhanced the capability of the IHS and Tribally
    operated health programs to work in partnership to make the best
    possible decisions. The bill under consideration by this committee is
    significant and very broad in its scope and, while well intended, would
    place unnecessary burdens and costly undertakings on the IHS that would
    serve to divert resources away from needed health care services to
    implement these activities.
        In closing, the provisions in the proposed bill clearly are
    intended to mandate that a high degree of consultation with Tribes
    should take place. The IHS routinely undertakes a high level of
    appropriate consultation. As such, we believe this legislation would
    impose an unnecessary burden and limit the discretion of the Secretary
    and the IHS to prioritize health care to American Indian and Alaska
    Native people.
        Thank you for this opportunity to present on behalf of the IHS with
    regard to H.R. 5608. I am pleased to answer any questions that you may
    have.
                                     ______

        The Chairman. Thank you.
        No opening statement?
        [No response.]
        The Chairman. Thank you, gentlemen, for your testimony.
        Let me begin with Mr. Cason. You testified that ``formal
    consultation takes place when the Department is considering new
    policies or regulations that would have a substantial, direct
    effect on the tribes.''
        My question is, would you describe in detail the
    consultation process that occurred in the development of the
    January 3, 2008, guidance for taking off-reservation land into
    trust?
        Mr. Cason. Well, Mr. Chairman, we had the consultation
    policy when we adopted the underlying regs, which were the 25
    C.F.R. 151 rules. That went through a formal rulemaking process
    and was adopted.
        The guidance that came out on January 3 was a further
    elaboration of one of the provisions of the rules. I don't
    remember exactly, but I think it was 25 C.F.R. 151.11 or .12,
    somewhere in that, and that basically said that part of the
    rule basically says that as the distance grows away from the
    reservation, the Department will give more consideration to the
    implications of the distance.
        It was unclear in the context of Section 20 of IGRA for
    two-part determination cases or applications how to apply that
    specific regulatory provision, and in the course of months of
    discussing it within the Department and in visiting with
    various Indian tribes, both of whom already have gaming and
    those who don't have gaming, the Department finally settled in
    on guidance that adopted the provision that you referred to
    earlier, which was the commuting rule.
        That basically said as a Department, as a policy, as
    guidance, that we wanted to have more continuity between the
    ability for tribal residents to actually work in casinos
    sponsored by the tribe rather than just approach an income
    stream from anywhere in the country.
        So the result of the process was one that has been over the
    long term looking at the comments on Indian gaming and
    consultation with a lot of individuals and tribes that are in
    the Indian gaming to arrive at a conclusion about how we would
    deal with that aspect of the rules.
        The Chairman. You testified that you think the legislation
    is overly broad. This committee does not want, of course, to
    prevent emergency actions or to disclose confidential
    information. What we want, of course, is to ensure that
    consultation occurs.
        So I would like for you to explain how you think the bill
    should be amended to allow the Department to act in emergency
    situations and to prevent the disclosure of confidential
    information.
        Mr. Cason. Well, Mr. Chairman, my reading of the bill and I
    think in consultation with the various parties within Interior,
    this bill would basically create an impasse in the decision-
    making process because it is laden with a very formal, time-
    consuming approach to deal with the bills.
        As we do consultation, and I personally have been involved
    in many instances which I would call consultation, we basically
    approach consultation from a standpoint of what is involved,
    how material is it, how broad of an impact does it have, how
    many tribes are affected by it, how quickly we have to provide
    answers or make decisions, and all of those factors and others
    will dictate how you approach consultation.
        We currently do a lot of consultation within the
    Department, and on an emergency situation, as you mentioned,
    often you have very little time to deal with that. In an
    emergency situation, you have to make a decision about to whom
    I have to talk, how do I get it done quickly. The formal
    structure in this bill doesn't provide for that.
        I would like to echo a comment made by Chairman Hogen as
    well. It has been my experience in having consultation sessions
    that there is a profound difference in how we view consultation
    versus some in Indian Country, which is--consultation to me is
    basically where we solicit the views of those people we are
    interacting with that would be affected by our rules and that
    we take those views into consideration along with all of our
    statutory and regulatory requirements and statutory
    requirements, but it does not mean that we have consensus on or
    agreement on everything before we move forward.
        It has been my experience in the past dealing with
    consultation, and I will refer the Chairman back to an effort
    we made early in the Administration on consulting on
    organizational proposals for BIA, we spent a year working with
    Indian Country, a tribal group, two representatives from every
    region. We met every month for two or three days for almost an
    entire year, and at the end of that process, when we didn't
    agree on all terms, we were given no credit for consulting at
    all because we hadn't agreed on everything.
        So it doesn't mean agreement on everything. It means
    soliciting views so you are fully informed.
        The Chairman. OK. I understand consultation does not mean
    agreement on everything, but consultation should also be
    meaningful and it should make those tribes with whom you
    consult feel like their input has been heard.
        Mr. Cason. Well, Mr. Chairman, I would agree with you. It
    needs to be meaningful, and I think we do enter into meaningful
    discussions, but there are some limitations on that, again as
    Chairman Hogen mentioned.
        Let me give you an example. I personally have sat with the
    BIA Tribal Budget Committee through many meetings. I probably
    did eight or 10 of those on a quarterly basis and, in the end,
    the Tribal Budget Committee was very frustrated with the
    consultation that we would do over the course of a day or a day
    and a half each quarter to talk about our budget structure.
        The feeling that they had was this isn't real consultation
    because we really don't affect the budget in a material way
    because Congress ultimately sets the budget. The Administration
    asks for a particular budget, and there is a pervasive sense of
    greater need in Indian Country than our budgets really support.
        So we do end up having consultation, but there are
    limitations that are based in statute or regulation or their
    budget structure that doesn't allow us to meet Indians all the
    way to where they want to be, and that is just a reality of the
    system we have.
        The Chairman. OK. Let me ask Chairman Hogen. Does the
    Commission believe that Executive Order 13175 applies to it? If
    not, could you please explain your Commission's consultation
    process?
        Mr. Hogen. The executive order contains an exemption for
    independent regulatory agencies, and I believe at the time it
    was written, the decision or position was taken at NIGC this
    doesn't apply there.
        When I came on the Commission as Chair, together with
    Commissioner Choney and Commissioner Westrin, we decided
    whether it applies or not, we sure should have a consultation
    policy, so we consulted with tribes to develop one and we
    adopted one, as published in the Federal Register. It has been
    provided to the Committee.
        There has never been a legal interpretation--that is a
    court decision, as to whether it does or doesn't apply, but
    there is that exemption for regulatory agencies that I think is
    appropriate, but we have adopted a consultation policy, and so
    I think it is kind of a moot question.
        The executive order of course doesn't give standing. That
    is, we or any Federal agency can't be sued for violating that
    in terms of the impact or the effect of the action that we
    might have taken, but rather it is advisory. It gives guidance.
    That is what our policy does.
        The Chairman. The tribes have indicated that the Commission
    met with tribal advisory groups and tribes on regulations that
    were proposed and rejected in 2006.
        Does the Commission consider the meetings with tribes and
    tribal advisory groups on prior proposed regulations that were
    rejected as consultation on the proposed regulations published
    in November of 2007?
        Mr. Hogen. I think, if I understand what you are talking
    about, is that the regulations we have long been considering
    and have gone forward with, the set of proposed regulations
    then based on the consultation, withdrew them, replaced them
    with a new set. Yes. We look back. We look at the record.
    Everything that was said from day one on this topic is taken
    into consideration.
        Now, as the composition of the Commission changes over the
    years, I expect some of that gets lost, and it shouldn't take
    agencies literally years to adopt regulations if that can be
    avoided, but this ongoing, longstanding effort we have been
    making to try and draw a brighter line between what equipment
    tribes can use to conduct bingo and uncompacted gaming
    activities from MAT that requires a compact, that is casino
    slot machines of any kind, electronic facsimiles of games of
    chance.
        You know, we are still doing that, but we take into
    consideration as we look at what we have before us, what our
    Tribal Advisory Committee that we assembled a number of years
    ago said to us about that, what the tribes said to us on the
    record when we had those 70 or so on-the-record consultations,
    and try to keep those expressed tribal points of view in mind.
        We have in fact made significant changes based on those
    consultations, and we are not done yet. You know, no rule has
    been adopted that flies in the face of what tribes have
    expressed in that connection.
        The Chairman. You indicate that the Commission consults
    with Indian tribes in conjunction with regional and national
    tribal organization meetings. Indian tribes contend that these
    meetings are extremely short, perhaps only 10 minutes long, and
    often several issues are discussed.
        How long is the average one-on-one consultation meeting
    with an Indian tribe?
        Mr. Hogen. I think 45 minutes. Sometimes they extend to an
    hour. It depends on how much----
        The Chairman. With several issues being discussed? Excuse
    me.
        Mr. Hogen. Oh, absolutely. That is, typically what we will
    do is send a letter and say, these are the things that are on
    the front burner at NIGC, and then, as we open the meeting, we
    try to review those because we get a variety of people coming
    to the consultation meetings.
        Sometimes it will be the tribal chair and it will be the
    tribal council, and that is absolutely the best quality
    consultation that we can have, but often we get somebody who is
    just an employee of the tribal gaming commission that is
    sitting there with the full National Indian Gaming Commission
    and four or five members of our staff, and we block out the
    same amount of time for each of those meetings.
        Sometimes the attendees are very conversant with the issues
    and we don't do much of the talking. We try to do most of the
    listening. In other instances, it is educational in that we
    share and kind of educate, so to speak, the tribe with respect
    to what we are doing, how we are spending their money, and the
    discussion then follows.
        They take a variety of forms, depending on the attendees
    and the issues and, in some cases, we will just cut to the
    chase and the tribe will say, ``We don't want to talk about any
    of those things. We want to open this new facility. We have
    these problems with our environmental impact statement. Can we
    talk about that?'' And we do that.
        So one size doesn't fit all, and there is great diversity
    there, as you know, Mr. Chairman.
        The Chairman. So if a tribe sends tribal gaming operation
    staff or tribal gaming commission staff to discuss technical
    issues at the meeting, has the Commission then ever raised
    issues that require tribal consultation with the elected
    leaders?
        That is, after you have gone through those who you say may
    be lesser in rank to the meeting, will you then go and discuss
    issues with the tribal leaders still?
        Mr. Hogen. Well, we don't always immediately then schedule
    a follow-up meeting so to speak, but we do try to convey our
    greetings and what we have said to the folks that attend, to
    take that back to the tribe, and to tell us more if they have
    more to tell us.
        Often we will meet more than once a year on similar issues
    with a tribe, sometimes with those technical people, later with
    the tribal council, sometimes vice versa, but there isn't an
    absolute pattern where after we meet with the technicians, so
    to speak, we get together with the political leadership.
        The Chairman. All right. Let me turn to Mr. McSwain. I
    didn't mean to ignore you.
        You expressed concerns about the costs necessary to
    implement the bill. How much has the Service spent the last
    four years on implementing Executive Order 13175? And then I
    have a second question. How much do you anticipate the
    implementation of this bill will cost?
        Mr. McSwain. We don't have cost figures on what we are
    currently doing.
        I know that all the particular issues that we have posed to
    you, Mr. Chairman, that we are doing, we haven't captured all
    the costs, but we can certainly submit that cost for the record
    because we would have to look at not only our special
    consultation sessions, but also our various advisory groups and
    the costs associated with that, but I can certainly provide
    that for the record.
        The Chairman. We would appreciate it. And your estimate of
    the cost of the implementation of the current bill?
        Mr. McSwain. We are just suggesting that that would in fact
    increase because of the increase of the numbers of contacts.
        It is a matter of how specific and where you draw the line
    in terms of every contact we have because we literally meet
    with patients daily. We meet with tribal leaders just weekly,
    so where do we draw the line in terms of what constitutes
    consultation?
        We have had that discussion internal to the Department of
    Health and Human Services, and in fact even within the IHS, as
    to what constitutes that interaction with the tribe. Is it just
    a simple consultation where we sit down and we talk about some
    issues that they have specific to their tribe? Does that cover
    in terms of accountable consultation?
        We think not, but there needs to be a line drawn as to how
    we define what the scope of the actual consultation is. When we
    know that, then we can calculate what the costs are. Right now,
    if we just simply take it at the outside, every contact will be
    formalized, as opposed to what we do now.
        We have national meetings. I meet with tribal leaders at
    national meetings. At what point do you draw the line in terms
    of what constitutes ``formalized accountable consultation''?
    When we know that, then we can calculate.
        The Chairman. OK. The Chair wishes to thank this panel for
    being with us today. We do have several more questions, but we
    will send them to you. Other Members of the Committee may have
    questions as well, and we would ask that you respond to those
    written questions in a timely manner.
        Mr. Cason. Thank you, Mr. Chairman.
        Mr. Hogen. Thank you.
        The Chairman. Thank you.
        Our next panel is composed of The Honorable Joe Shirley,
    President of the Navajo Nation; The Honorable Buford Rolin, the
    Chairman of the Poarch Band of Creek Indians; The Honorable
    Gerald Danforth, Chairman, Oneida Nation of Wisconsin.
        Gentlemen, we welcome you to the Committee on Natural
    Resources. We do have your prepared testimony. It will be made
    part of the record as if actually read. You may proceed as you
    wish.
        President Shirley?

                STATEMENT OF THE HONORABLE JOE SHIRLEY,
                        PRESIDENT, NAVAJO NATION

        Mr. Shirley. Good morning, Chairman Rahall and Members of
    the Committee. Thank you for the opportunity to testify on H.R.
    5608. That such legislation is needed is beyond question, Mr.
    Chairman.
        Chairman Rahall, your legislation would be a welcome change
    to what has become the standard Washington refrain. If passed,
    H.R. 5608 would for the first time mandate that each agency
    develop a policy to engage in meaningful and accountable
    consultation. More importantly, this legislation would create
    an oversight process to ensure that the Federal agencies comply
    with this consultation policy.
        The legislation would recognize the relationship between
    the Federal government and native nations as one of government-
    to-government, that we as tribal governments have a right to
    sovereignty and a right to self-determination. It would
    recognize that there exists a trust relationship recognizing
    treaties, statutes and executive orders, that the Federal
    government needs to act in our best interests, that the native
    nations need to have a say in the decisions that are made on
    our behalf.
        It appears to be such a simple proposition. Engage those
    who will be affected by policy decisions in the decision-making
    process. Mr. Chairman, I commend you for introducing this
    legislation, and I support its passage.
        The relationship of Native nations to the Federal
    government is supposed to be one between sovereigns with
    government sitting down with its representatives to engage in
    discussions as equals. The concept of the government-to-
    government relationship should mean that the Federal government
    includes tribal governments in the decision-making process,
    that we are heard and listened to and that our opinions and
    concerns have meaning.
        This concept should embrace the belief that Native
    Americans and tribal governments probably understand better
    than someone sitting in an office a thousand or more miles away
    what our needs are, where our money can best be spent and what
    policies would be the most effective.
        Of course, participation through a tribal consultation
    policy does not necessarily equate to meaningful consultation.
    At present there is little meaningful consultation with tribal
    governments. Decisions are made routinely in Washington that
    affect the daily lives of Native Americans. We are left to
    adapt to the vacillating policy choices made by Washington
    bureaucrats, regardless of our individual needs or priorities.
        Unfortunately for most tribal governments, adapting to
    these changes usually means that we make do with less as our
    needs continue to grow. The worst of all situations is when
    tribal delegations are convened to inform us of a decision
    already made just so that the agency can check off its tribal
    consultation box.
        One need only to look to the BIA Tribal Budget Advisory
    Council to see the ineffectiveness of tribal consultation.
    Several times each year, tribal leaders gather around the
    country to discuss our budgetary needs and priorities with BIA
    officials. This process culminates each year with a meeting in
    a Washington area conference facility. Our tribal leaders come
    in to ask the BIA for help to protect our resources, our
    culture, our existence.
        When tribal leaders pour out their hearts talking about the
    needs of their people, BIA bureaucrats listen impassively. All
    the while, these officials know that the budgetary decisions
    have already been made and that consultation is nothing more
    than a pretense to be able to say that they have listened to
    and took notes, but other priorities govern the process. Even
    our people and our culture are threatened.
        It is evident other priorities control the process, not the
    means that tribal governments put forward. In my mind,
    consultation is more than sitting there and listening.
    Consultation is acting on the information.
        Also, in April 2004, President Bush issued Executive Order
    13336. Placed within the context of education, the order
    recognizes the unique status of Native nations with the Federal
    government, a need for government-to-government relationships
    and the right of tribal governments to exercise sovereignty and
    self-determination.
        The order calls for the creation of an interagency working
    group composed of the heads of various Federal agencies to
    develop a plan to implement the order, yet even with this
    commitment to the educational needs of our children, the
    President's budget routinely is not enough for school
    construction and education programs for Native American
    students.
        For decades, American Presidents have paid lip service to
    the idea of tribal sovereignty and self-determination.
    Definitely, Chairman Rahall, more needs to get done to involve
    Native American nations in the decision-making process of the
    Federal government, and that includes the budgetary processes.
        Thank you.
        [The prepared statement of Mr. Shirley follows:]

                 Statement of Dr. Joe Shirley, Jr., President,
                        The Navajo Nation, on H.R. 5608

        Good morning Chairman Rahall, Ranking Member Young and members of
    the Committee. Thank you for the opportunity to testify before you this
    morning concerning H.R. 5608, the Consultation and Coordination with
    Indian Tribal Governments Act.
        As I sit before you today, I am filled with a sense of sadness and
    anger that in 2008, one hundred and forty years after the Navajo Nation
    signed our treaty with United States, we are forced to discuss the
    necessity of legislation that mandates that the federal government
    engage in meaningful discussions with tribal governments. That such
    legislation is needed is beyond question. Decisions are routinely made
    in Washington that effect the daily lives of Native Americans with
    little meaningful consultation with tribal governments. We are left to
    adapt to the vacillating policy choices made by Washington bureaucrats
    regardless of our individual needs or priorities. Unfortunately for
    most tribal governments, adapting to these changes usually means that
    we make do with less as our needs continue to grow.
        The relationship of the Native Nations to the federal government is
    supposed to be one of sovereigns. Each government sitting down with its
    representatives and engaging in discussions as equals. The concept of
    the government-to-government relationship should mean that the federal
    government includes tribal governments in the decision-making process.
    That we are heard and listened to; and that our opinions and concerns
    have meaning. That there is a belief that Native Americans and tribal
    governments probably understand better than someone sitting in an
    office a thousand or more miles away what our needs are, where money
    can best be spent, and what policies would be the most effective. That
    we are so often ignored in the decision-making process is insulting
    enough. However, when we are forced to gather, hat in hand, to parade
    or needs in front of another group of bureaucrats only to have our
    requests tossed aside as inconvenient realties, or just another program
    that fails to meet certain expectations, is both demeaning and
    infuriating. The worst of all situations is when tribal delegations are
    convened to inform us of a decision already made just so the agency can
    check off its tribal consultation box. After more than 200 years of
    failed policies on the part of federal government towards the Native
    Nations, I believe we have earned the right through death of hundreds
    of thousands of my brothers and sisters to have our opinions concerning
    our needs and wishes heard.
        In April 2004, President Bush issued Executive Order 13336. The
    purpose of this Executive Order was to recognize the unique challenges
    faced by Native American students in meeting the demands of the No
    Child Left Behind Act. Placed within the context of education the Order
    recognized the unique status of the Native Nations with the federal
    government, the need for government-to-government relationships, and
    the right of tribal governments to their sovereignty and self-
    determination. The Order called for the creation of an inter-agency
    working group composed of the heads of various federal agencies to
    develop a plan that implements the order. Yet, even with this
    commitment to educational needs of our children, the President's
    budgets routinely give short shrift to school construction and
    education programs for Native American students.
        In September 2004, President Bush issued a memorandum to the heads
    of the executive departments and agencies concerning the government-to-
    government relationship with tribal governments. This memorandum did
    recognize the unique legal and political between the federal government
    and Native Americans, and affirmed the Executive Orders issued by
    Presidents Nixon and Clinton concerning self-determination and the need
    for consultation and coordination with tribal governments. The
    memorandum reiterated a commitment on the part of President Bush to
    work with tribal governments on a government-to-government basis
    reaffirmed a respect for tribal sovereignty and self-determination. To
    that end, the memorandum called for all departments and agencies to
    work with tribal governments based on these principles.
        The effectiveness of these repeated statements of policy on the
    part of the federal government is at best arguable. However, it is
    clear that these repeated statements have not gone far enough.
    Executive Orders and memorandums do not carry the full force of law.
    Presidents for decades have paid lip service to the idea of tribal
    sovereignty and self-determination with little practical effect.
    However, that is not to say that there has been no progress. Some
    departments and agencies have developed tribal consultation policies,
    although they have been uneven in their application or adoption across
    entire departments we have seen some progress. Both the Department of
    Health and Human Services (DHHS) and the Department of the Interior
    (DOI) have developed tribal consultation policies to some degree.
        The DHHS tribal consultation policy, initiated in 2005, mandated
    that all operating divisions within the DHHS develop their own
    policies, but not all have done so. The DHHS policy allows tribal
    governments to formally engage in annual tribal consultation session
    with the DHHS regional offices. The Indian Health Service (IHS) revised
    their consultation policy in 2006 to reflect the new DHHS policy; as a
    result, there has been greater participation within the budget process.
        Of course, greater participation through a tribal consultation
    policy does not necessarily equate to meaningful consultation. One need
    only look to the Bureau of Indian Affairs (BIA)/Tribal Budgetary
    Advisory Council (TBAC) to see the ineffectiveness of tribal
    consultation. Several times each year tribal leaders gather around the
    country to discuss their budgetary needs and priorities with BIA
    officials. This process culminates each year with a meeting in a
    Washington area conference facility where tribal leaders come in to ask
    the BIA for help to protect our resources, our culture, our existence.
    Leader after leader stands before a lectern for their allotted time
    giving a short presentation that seeks to encapsulate the effect of
    hundreds of years of exploitation and injustice. Each presentation
    boils down to the same litany of heartbreaking concerns: a lack of
    healthcare for babies and mothers, a lack of resources, no jobs, high
    crime, drug and alcohol dependence, not enough schools, not enough
    teachers, no water, no food, environmental contamination, the list goes
    on and on. While the tribal leaders pour out their hearts talking about
    the needs of their people, BIA bureaucrats sit there impassively
    listening. All the while, the BIA officials know that the budgetary
    decisions have already been made, and that ``consultation'' is nothing
    more than a pretense to being able to say that we listened and took
    notes but other priorities governed the process. Other priorities. When
    our people and our culture are threatened, other priorities reined.
    Consultation in my mind is more than sitting there and listening;
    consultation is acting on the information.
        Chairman Rahall, your legislation would be a welcome change to what
    has become the standard Washington refrain. If passed, H.R. 5608 would
    for the first time mandate that each agency develop a policy for
    engaging in meaningful and accountable consultation. More importantly,
    this legislation would create an oversight process to ensure that the
    federal agencies are complying with this consultation policy. The
    legislation would recognize the relationship between the federal
    government and the Native Nations as one of government-to-government,
    that we as tribal governments have a right to sovereignty and a right
    to self-determination. That there exists a trust relationship
    recognized in treaties, statues, and executive orders that the federal
    government should act in our best interests. That the Native Nations
    should have a say in the decisions that are made on our behalf. It
    would seem on its face to be such a simple proposition, engage those
    who will be effected by policy decisions in the decision-making
    process. I commend you for introducing this legislation and support its
    passage.
                                     ______

        The Chairman. Chairman Buford?

          STATEMENT OF THE HONORABLE BUFORD ROLIN, CHAIRMAN,
                      POARCH BAND OF CREEK INDIANS

        Mr. Rolin. Good morning, Chairman Rahall and Members of the
    Committee. I am Buford Rolin, Chairman of the Poarch Band of
    Creek Indians. I also chair the Tribal Leaders Diabetes
    Committee and am Vice Chairman of the National Indian Health
    Board.
        It is a pleasure for me to be here today to discuss with
    you H.R. 5608, a bill to establish meaningful consultation and
    collaboration with tribal officials in the development of
    Federal policies by the Department of Interior, the Indian
    Health Service and the National Indian Gaming Commission.
        As Chairman of the Poarch Band of Creek Indians and Chair
    of the TLDC, I have personal knowledge of how important it is
    for Federal agencies to consult with tribes in the development
    of policies that will impact tribal communities. For over 200
    years, the United States has interacted with Indian tribes on a
    government-to-government relationship. Meaningful consultation
    between tribal governments in the United States is an integral
    component of this relationship.
        The IHS, through consultation with Indian tribes, has
    successfully implemented several laws impacting tribal
    communities: Titles I and V of the Indian Self-Determination
    and Education Assistance Act, the Indian Health Care
    Improvement Act and the Special Diabetes Program for Indians.
    It is because of tribal consultation that these programs
    operate successfully both for the benefit of the Federal
    government and the intended tribal communities.
        As Chairman of the TLDC, I have had the unique opportunity
    to work very closely with Dr. Kelly Acton, Director of the IH
    Division of the Diabetes Treatment and Prevention Program, to
    oversee the development of many of the culturally sensitive and
    appropriate diabetes programs throughout Indian Country.
        In 1998, the IHS formally established the TLDC to provide
    advice and input on diabetes-related issues. The IHS recognized
    from the start of this program that it would have to make
    careful choices about the SDPI funding, and knew these choices
    would be best made with input from tribal leaders.
        Through consultation, the IHS, tribal and urban model
    diabetes programs have developed and implemented a variety of
    community and education programs that reflect the specific
    needs of the local communities. The SDPI has made a difference.
        The mean blood sugar level, A1C, in Indian communities has
    decreased from nine percent in 1996 to 7.85 percent in 2007
    after the SDPI. This is a major achievement because scientific
    research shows that a one percent decrease translates to a 40
    percent reduction in diabetes-related complications, such as
    blindness, kidney failure and amputations.
        On December 29, 2007, the SDPI was reauthorized for one
    more year, through Fiscal Year 2009, at a funding level of $150
    million. On February 7 and 8 of this year, the TLDC met to
    discuss and make recommendations to the IHS regarding the new
    SDPI funding for 2009. The TLDC recommended that area tribal
    consultation be held to seek input on the allocation of funds
    for this one year of funding.
        We are just getting the results back from the area
    consultation meeting, and the TLDC is in the process of making
    final recommendations to the IHS as to the distribution of
    Fiscal Year 2009 funding.
        The SDPI has been a tremendously successful program, and I
    believe the major contributing factor to its successes is
    because the program was developed and implemented through the
    extensive and meaningful consultation process. Consultation
    took place at the local tribal level and through close
    collaboration between the TLDC and the IHS Division of
    Diabetes.
        I appreciate that H.R. 5608 has been introduced to
    strengthen the Federal government's responsibility to consult
    with tribal governments. However, with all due respect, I am
    concerned that the legislation as currently drafted only
    applies to DOI, IHS and NIGC.
        Tribal health programs interact with other agencies within
    the Department of Health and Human Services, such as CMS,
    SAMHSA, CDC and HRSA. Under the IHS tribal consultation policy,
    these agencies have established tribal advisory groups that
    provide opportunity for tribal input and advice. However, by
    only including IHS in H.R. 5608 and not all of HHS, if enacted
    this could send a message to other agencies within HHS that
    they are no longer required to consult with tribes.
        As Chairman of our tribe, I know there are other Federal
    agencies that have tribal consultation policies, such as HUD,
    Transportation and EPA to name a few, but H.R. 5608 not
    including Federal agencies, I reiterate my concern that their
    mission might be interpreted as overriding the tribal
    consultation requirement contained in executive orders.
        I respectfully recommend that H.R. 5608 be amended to apply
    to all Federal agencies, but at a minimum apply to all agencies
    in HHS. In the alternative, I recommend a provision be inserted
    to clarify that codification of tribal consultation
    requirements as to DOI, IHS and NIGC does not abrogate the
    responsibility of other Federal agencies to consult with tribal
    governments.
        I appreciate the opportunity to comment on this bill. Thank
    you.
        [The prepared statement of Mr. Rolin follows:]

      Statement of Buford Rolin, Chairman, Poarch Band of Creek Indians,
        Chairman, Tribal Diabetes Leaders Committee, Co-Chairman Tribal
      National Steering Committee, Vice Chairman, National Indian Health
                                     Board

        Good Morning, Chairman Rahall and Ranking Member Young and members
    of the Committee. I am Buford Rolin, Chairman of the Poarch Band of
    Creek Indians, Chairman of the Tribal Leaders Diabetes Committee
    (TLDC), Co-Chairman of the Tribal National Steering Committee (NSC),
    and Vice-Chairman of the National Indian Health Board (NIHB).
        It is a pleasure to be here today to discuss with you H.R. 5608, a
    bill to establish meaningful consultation and collaboration with Tribal
    officials in the development of Federal policies by the Department of
    Interior (DOI), Indian Health Service (IHS), and the National Indian
    Gaming Commission (NIGC). As Chairman of the Poarch Band and as
    Chairman of the TLDC, I have personal knowledge of how important it is
    for Federal agencies to consult with Tribes in the development of
    policies that will impact Tribal communities.
        The United States has a unique legal relationship with Indian
    Tribes as found in the U.S. Constitution and reconfirmed and upheld by
    U.S. Supreme Court decisions, Federal laws, regulations, and policy.
    For over 200 years, the United States has interacted with Indian Tribes
    on a government to government relationship. This special relationship
    between the United States and Tribes is unlike any other relationship
    with other groups of Americans. Meaningful consultation between Tribal
    governments and the United States is an integral component of this
    relationship.
        Pursuant to Presidential Executive Orders, the IHS has a long
    standing policy of consulting with Indian Tribes in implementing
    federal laws, regulations, and policies, see IHS Tribal Consultation
    Policy, IHS Circular No. 97-07. As stated in the IHS policy, one of the
    underlying foundations for Tribal consultation is the United States'
    moral obligation to promote consultation and participation with Tribal
    governments. The IHS, through consultation with Indian Tribes, has
    successfully implemented several laws impacting Tribal communities:
    Titles I and V of the Indian Self-Determination and Education
    Assistance Act (ISDEAA), the Indian Health Care Improvement Act
    (IHCIA), and the Special Diabetes Programs for Indians (SDPI). It is
    because of Tribal consultation that these programs operate successfully
    both for the benefit of the Federal government and the intended Tribal
    communities.
        As Chairman of the Poarch Band, I have first hand experience as to
    how Tribal consultation has contributed to the successful
    implementation of the ISDEAA. The Poarch Band is a Self-Governance
    tribe that operates the Poarch Band Tribal Health Center in Atmore,
    Alabama. The health center provides primary care, pharmacy services,
    mental health, community health and a wide range of other services.
        Currently over 70 Tribes operate health programs under Title V. The
    success of the Tribal Self-Governance program is, in part, due to the
    extensive Tribal consultation in implementing the Title V regulations.
    The IHS established a negotiated rulemaking committee, consisting of
    Tribal leaders and federal officials. Because Tribes sat across the
    table from federal officials to draft regulations, Tribal input was
    provided in the initial development and continued until the final Title
    V regulations were promulgated. Because the Tribes were part of the
    regulatory process, the regulations have been implemented in an
    efficient and effective manner.
        As Co-Chair of the Tribal NSC for the reauthorization of the IHCIA,
    again, I know first hand how important Tribal consultation is in the
    development of legislation impacting Tribal communities. In 1999, the
    IHS formed the Tribal NSC as an advisory group to provide Tribal input
    and advice regarding reauthorization of the IHCIA, set to expire in
    2000. The NSC, consisting of Tribal representatives from each of the 12
    geographic areas of the IHS, drafted the reauthorization bill that
    serves as the basis for the IHCIA reauthorization bills, S. 1200 and
    H.R. 1328, introduced in the 110th Congress. The Tribal NSC continues
    as an effective advisory group providing Tribal input and advice to the
    Administration and Congress regarding the IHCIA.
        As Chairman of the TLDC, I have had the unique opportunity to work
    closely with Dr. Kelly Acton, Director, IHS Division of Diabetes
    Treatment and Prevention Program, to oversee the development of many of
    the culturally sensitive and appropriate diabetes programs throughout
    Indian Country. In 1998, the IHS formally established the TLDC to
    provide advice and input on diabetes-related issues. The TLDC's
    collaborative effort with the IHS has been an important outcome of the
    SDPI. The IHS recognized from the start of this program that it would
    have to make careful choices about where to invest the SDPI funds and
    knew these choices would best be made with input from Tribal leaders.
        Through consultation--the IHS, Tribal and urban diabetes programs
    have developed and implemented a variety of community and education
    programs that reflect the specific needs of their local communities.
    The SDPI has made a difference--the mean blood sugar level (A1C) in
    Indian communities has decreased from 9% in 1996 (before the SDPI) to
    7.85% in 2007 (after the SDPI). This is a major achievement because
    scientific research shows that a 1% decrease translates to a 40%
    reduction in diabetes-related complications, such as blindness, kidney
    failure, and amputations.
        Although the TLDC was established in 1998, it was formally
    chartered in June 2007. The charter outlines the role of the TLDC in
    providing broad-based advice to IHS on diabetes and related chronic
    disease issues. One of the responsibilities of the TLDC is to provide
    advice and guidance to ensure the incorporation of appropriate culture,
    traditions, and values in the development of diabetes programs,
    research and community-based activities.
        The TLDC also makes recommendations regarding the distribution of
    SDPI funds. On December 29, 2007, the SDPI was reauthorized for another
    year--through FY 2009--at a funding level of $150 million. On February
    7-8, 2008, the TLDC met to discuss and make recommendations to the IHS
    regarding the new SDPI funding for FY 2009. The TLDC recommended that
    Area Tribal Consultation be held to seek input on the allocation of
    funds for this one year of funding. We are just getting the results
    back from the Area consultation meetings and the TLDC is in the process
    of making final recommendations to the IHS as to the distribution of FY
    2009 funding.
        The SDPI has been a tremendously successful program--and I believe,
    the major contributing factor to its success is because the program was
    developed and implemented through an extensive and meaningful
    consultation process. Consultation took place at the local Tribal level
    and through close collaboration between the TLDC and the IHS Division
    of Diabetes.
        Chairman Rahall and Congressman Kildee, I appreciate that H.R. 5608
    has been introduced to codify the Federal government's responsibility
    to consult with Tribal governments regarding legislation, regulations,
    and policies having Tribal implications. However, with all due respect,
    I have concerns that the legislation as currently drafted only applies
    to the DOI, IHS, and NIGC.
        Tribal health programs interact with other agencies within the
    Department of Health and Human Services. It is critical that these
    agencies consult with Tribal governments because many of these
    agencies--Centers for Medicare & Medicaid Services (CMS), Substance
    Abuse and Mental Health Services Administration (SAMHSA), Centers for
    Disease Control (CDC), Health Resource Services Administration (HRSA)--
    implement legislation, regulations, and policies that have major Tribal
    implications.
        The Department issued a Tribal Consultation Policy, revised
    February 1, 2008, requiring all HHS agencies to consult with Tribal
    governments. The CMS, SAMSHA, and CDC have established Tribal advisory
    groups to provide advice and input to the agencies in implementing
    policies impacting Tribal communities. The Tribal advisory groups are
    not a substitute for Tribal consultation with over 560 Federally-
    recognized Tribes. The Tribal advisory groups are an effective forum
    for the HHS agencies to obtain preliminary advice and input from Tribal
    leaders with particular expertise.
        I have provided good examples of why Tribal consultation is
    important and how it can lead to the successful implementation of
    Federal programs in Tribal communities. But when Tribal consultation is
    not conducted or not conducted in a meaningful manner--implementation
    of Federal policy impacting Tribal communities can lead to potentially
    devastating results.
        I am concerned that by only including IHS in H.R. 5608, and not all
    of the HHS agencies, that this could send a message to those other HHS
    agencies that they are not required to consult with Tribes. HHS should
    be specifically referenced in H.R. 5608. The HHS Tribal Consultation
    Policy requires all of the agencies to consult with Tribes in the
    development of policies and regulations having Tribal implications--but
    the HHS policy is not always followed. Many of the HHS agencies do not
    have long standing policies of consulting with Tribes and their process
    for obtaining feedback from constituency groups, such as State
    governments, have not been modified to include Tribal governments. Of
    particular concern are CMS policies and regulations that have Tribal
    implications--over 35% of the IHS actives users are Medicare and
    Medicaid eligible. The IHS and Tribal health programs are participating
    Medicare and Medicaid providers. Unfortunately, the CMS recently
    published proposed Medicaid rules, with Tribal implications, without
    first consulting with Tribal governments. I have included as an
    attachment to my written testimony the Tribal comments submitted
    expressing concerns regarding the lack of Tribal consultation in the
    development of one of those proposed rules, CMS-2244-P [State
    flexibility to impose premiums and cost sharing requirements].
        As Chairman of my Tribe, I know there are other Federal agencies
    that have Tribal consultation policies, such as the Department of
    Housing and Urban Development, Department of Transportation,
    Environmental Protection Agency--to name a few. By H.R. 5608 not
    including all Federal agencies, I reiterate my concern that their
    omission might be interpreted as not requiring Federal agencies (other
    than those named in H.R. 5608) to consult with Tribes pursuant to
    Executive Orders.
        I respectfully recommend that H.R. 5608 be amended to apply to all
    Federal agencies, but at a minimum, apply to all agencies in HHS. In
    addition or in the alternative, I recommend a provision be inserted to
    clarify that codification of Tribal consultation requirements as to
    DOI, IHS, and NIGC does not abrogate the responsibility of other
    Federal agencies to consult with Tribal governments.
        I appreciate the opportunity to comment on H.R. 5608 and I am
    available to answer any questions the Committee might have.
        Attachment: CMS TTAG letter commenting on lack of Tribal
    consultation in publication of Medicaid proposed rule--CMS-2244-P.
                                     ______

    Tribal Technical Advisory Group
    To the Centers for Medicare and Medicaid Services
    c/o National Indian Health Board
    1940 Duke Street, Suite 200
    Alexandria, VA 22314
    (703) 486-4706 (703) 486-5717 Fax

    March 24, 2008

    Kerry Weems, Acting Administrator
    Centers for Medicare & Medicaid Services
    Department of Health and Human Services
    Attention: CMS-2244-P
    P.O. Box 8016
    Mail Stop C4-26-05
    7500 Security Boulevard
    Baltimore, MD 21244-1850

    Subject: Proposed Rule: CMS-2244-P

    Dear Mr. Weems:

        As Chair and on behalf of the Centers for Medicare & Medicaid
    Services (CMS) Tribal Technical Advisory Group (TTAG), I write to
    express serious concerns regarding proposed rule implementing sections
    6041, 6042, and 6043 of the Deficit Reduction Act of 2005 (DRA) and
    section 405(a)(1) of the Tax Relief and Health Care Act of 2006
    (TRHCA). These sections amend the Social Security Act (SSA) by adding a
    new section 1916A to provide State Medicaid agencies with increased
    flexibility to impose premium and cost sharing requirements on certain
    Medicaid recipients. These regulations were proposed by CMS without
    first seeking input from the CMS TTAG as to the effect the proposal
    would have on the accessibility of Medicaid services to American
    Indians and Alaska Natives (AI/AN), one of the most fundamental
    purposes for which the TTAG was created.
        The CMS TTAG was established in October 2004 to provide advice and
    input to the CMS on policy and program issues affecting delivery of
    health services to AI/ANs served by CMS-funded programs, including
    Medicaid. For the last four years the TTAG has carried out its
    responsibilities as an advisory group by holding monthly conference
    calls and three face to face meetings each year. The TTAG has full
    participation of its fifteen members, one representative from each of
    the twelve geographic areas of the Indian Health Service (IHS) and one
    representative from three national Indian organizations, National
    Indian Health Board, National Congress of American Indians, and Tribal
    Self-Governance Advisory Group. But the TTAG cannot fulfill its purpose
    of providing advice to CMS where, as here, the agency failed to bring
    the proposed regulations to the TTAG for input and evaluation of the
    likely impact they would have on AI/AN Medicaid-eligible individuals.
        The CMS TTAG is very concerned with the lack of Tribal consultation
    in the development of the proposed rule, CMS-2244-P. The lack of Tribal
    consultation is in contradiction to the Department's Tribal
    Consultation Policy and the CMS TTAG requests that these regulations
    not be made effective until such Tribal consultation consistent with
    Department policy is conducted.
    Background:
        As explained above, the CMS TTAG was established to provide advice
    and input to CMS in the development of policy guidance and regulations
    that could impact AI/AN access to Medicaid services and the IHS and
    tribal programs that participate as providers of Medicaid services
    pursuant to section 1911 of the SSA. In 1976, Congress amended the SSA
    to provide Medicaid participation and reimbursement authority for
    Medicaid services provided in IHS and tribal facilities so that Indian
    people could access Medicaid services entitled to them as citizens of
    the State where they reside. The IHS estimates that nationwide
    approximately 35% of the 1.5 million IHS active users are eligible for
    or are Medicaid beneficiaries--in some locations, for instance with 70%
    unemployment, this percentage is higher. Over 500 health care
    facilities operated by the IHS and tribes and tribal organizations,
    pursuant to the Indian Self-Determination and Education Assistance Act
    (ISDEAA), are Medicaid participating providers.
        In 2007, the CMS TTAG established a Policy Subcommittee to
    specifically provide a forum for tribal input in the development of
    policy guidance and regulations for having potential impact on AI/AN
    Medicaid beneficiaries and IHS and tribal provider of Medicaid
    services. The CMS TTAG Policy Subcommittee is not a substitute for
    tribal consultation but consists of tribal representatives with
    particular knowledge and expertise in Medicaid.
    Department Tribal Consultation Policy:
        The Department's Tribal Consultation Policy, revised on February 1,
    2008, requires each HHS Operating and Staff Division (Division),
    including CMS, to establish a process to ensure meaningful and timely
    input by Tribal officials in the development of policies that have
    Tribal implications. The consultation policy, at Section 4 (B), also
    requires that HHS Divisions, such as CMS, not promulgate regulations
    that have tribal implications or impose substantial direct compliance
    costs on Indian Tribes unless:
        1.  Funds necessary to pay the direct costs incurred by the Indian
    Tribe in complying with the regulations are provided by the Federal
    Government; or
        2.  The Division, prior to the formal promulgation of the
    regulation,
             a.  Consulted with Tribal officials early and throughout the
            process of developing the proposed regulation;
             b.  Provided a Tribal summary impact statement in a separately
            identified portion of the preamble to the regulation as it is
            to be issued in the Federal Register (FR), which consists of a
            description of the extent of the Division's prior consultation
            with Tribal officials, a summary of the nature of their
            concerns and the Division's position supporting the need to
            issue the regulation, and a statement of the extent to which
            the concerns of Tribal officials have been met; and
             c.  Made available to the Secretary any written communications
            submitted to the Division by Tribal officials.
    Tribal consultation required per the HHS consultation policy:
    1.  Proposed rules have tribal implications:
        The proposed regulations have tribal implications because a
    substantial number of AI/AN Medicaid beneficiaries will be subject to
    new cost sharing requirements. Like other low-income groups, cost
    sharing requirements serve as a substantial barrier to AI/AN enrollment
    in the Medicaid program. Imposition of cost sharing requirements on AI/
    ANs undermines Congressional intent of ensuring AI/AN access to
    Medicaid services in IHS and tribal health care facilities located in
    some of the most poor, remote and isolated areas of this country.
    Because of the Federal government's trust responsibility to provide
    health care to AI/ANs, cost sharing requirements have specific tribal
    implications that have not been addressed in the proposed rules.
    Because the impact of these proposed rules on AI/AN participation in
    State Medicaid programs will vary depending on locality, tribal
    consultation with all 561 Indian Tribes is needed to address specific
    tribal concerns.
    2.  Proposed rules could result in compliance costs on Indian Tribes:
        The imposition by States of cost sharing requirements on Medicaid
    beneficiaries will have adverse consequences on IHS and tribally-
    operated health programs in at least three ways: (1) an Indian
    beneficiary who is eligible to enroll in Medicaid may be dissuaded from
    doing so where a cost is imposed on him/her for such enrollment; and
    (2) the IHS or tribal program who services such an Indian patient will
    lose access to Medicaid reimbursements for that patient; and (3) even
    if the eligible Indian does enroll in Medicaid, the IHS/tribal program
    would have to use scarce IHS-appropriated funds to pay the cost-share
    amount. Imposing such barriers to Medicaid participation on Indian
    beneficiaries and Indian health programs violates the Federal
    government's trust responsibility to provide health care to AI/ANs.
        While CMS estimates that the proposed rules will result in cost
    savings to the Medicaid program, the proposed rules will shift costs to
    the IHS--an agency that is currently woefully under funded. It is
    irresponsible for CMS to propose such regulations without providing a
    mechanism to protect access for Indian beneficiaries for whose health
    care needs the United States has full and exclusive responsibility.
    Lack of Tribal consultation in development and promulgation of proposed
            rule:
        Contrary to the HHS Tribal Consultation Policy, the CMS did not
    consult with Tribes in the development of these regulations before they
    were promulgated. The CMS did not obtain advice and input from the CMS
    TTAG even though the TTAG meets on a monthly basis via conference calls
    and holds quarterly face to face meetings in Washington, D.C. The CMS
    did not utilize the CMS TTAG Policy Subcommittee which was specifically
    established by CMS for the very purpose of obtaining advice and input
    in the development of policy guidance and regulations.
        Contrary to the Department's consultation policy, the proposed rule
    does not contain a Tribal summary impact statement describing the
    extent of the tribal consultation or lack thereof, nor an explanation
    of how the concerns of Tribal officials have been met.
    Regulations should not be effective until Tribal consultation is held:
        Because CMS failed to comply with the HHS Tribal Consultation
    requirements in the promulgations of proposed rule, CMS-2244-P, the CMS
    TTAG requests that the proposed rule not be made applicable to AI/AN
    Medicaid beneficiaries until such time as CMS consults with Indian
    Tribes regarding the impact of these proposed rules on their tribal
    members.
        In the event, CMS proceeds to make these regulations effective on
    Indian tribes, the CMS TTAG strongly urges that the proposed rules be
    modified to require State Medicaid programs to consult with Indian
    Tribes prior to the development of any policy which would impose any
    premium or cost sharing requirements on AI/ANs served by IHS or tribal
    health programs.
    Conclusion:
        The CMS TTAG remains concerned about the lack of Tribal
    consultation in the development of other and future proposed
    regulations. The CMS did not consult with Tribes regarding proposed
    rule CMS-2232-P, [State Flexibility for Medicaid Benefit Packages], and
    the TTAG will be submitting comments to these rules as well. A 30 day
    comment period for Tribes to comment on Medicaid regulations, that are
    comprehensive and have a potentially significant impact on Tribal
    communities, is not sufficient. Per the HHS policy, the CMS is required
    to consult with Tribes in the early stages and throughout the
    development of any regulations with Tribal implications.
        Thank you for consideration of our request to delay implementation
    of the proposed rules, CMS-2244-P, until Tribal consultation is held.
    The TTAG is available to assist with the Tribal consultation process.
    The TTAG will continue to work with CMS staff to provide timely and
    substantive advice and input regarding these proposed rules, as well as
    proposed rules currently under development and rules developed in the
    future.

    Sincerely,

    Valerie Davidson
    Chair

    cc:  Secretary Michael Leavitt
        Laura Caliquiri, Director, Office of Intergovernmental Affairs
        Dennis Smith, Director, Center for Medicaid Services
        Dorothy Dupree, Director, Tribal Affairs Group
        Robert McSwain, Acting Director, IHS
        CMS TTAG members
                                     ______

        The Chairman. Chairman Danforth?

              STATEMENT OF THE HONORABLE GERALD DANFORTH,
                  CHAIRMAN, ONEIDA NATION OF WISCONSIN

        Mr. Danforth. Yes. Thank you, Chairman Rahall. Good
    morning. My name is Gerald Danforth. I am the Chairman for the
    Oneida Tribe of Indians in Wisconsin. I am very pleased to be
    here with you today to present our viewpoints on H.R. 5608, the
    Consultation and Coordination with Indian Tribal Governments
    Act.
        Since before the formation of the United States, leaders
    from the Oneida Tribe have actively engaged in consultation of
    our affairs with leaders from other governments--tribal and
    nontribal. In one instance, our tribal leaders engaged in
    consultation with George Washington during the Revolutionary
    War. The outcome of that consultation was favorable to
    everybody in the United States.
        However, shortly after, that our leaders were engaged in
    consultation with some state officials in New York. The outcome
    of that consultation was not very favorable to us and is still
    yet pending in litigation in the court systems. Since those
    early times, we feel the United States has had kind of a rocky
    relationship with tribal nations.
        Now, more recently, Presidents have begun the issuing of
    executive orders--the executive order that is currently in
    effect today is an example of that--directing that tribal
    governments be consulted with on matters that are being
    considered that have an impact on them. We believe that in
    light of that, in light of some of the progress that has been
    made, that it is proper and it is fitting that Congress move
    forward to institutionalize this process.
        Well, we think that there are many agencies--Federal
    agencies I will say particularly--that do recognize the primacy
    of tribal governments, and they interact with Indian nations
    accordingly. The measure of effectiveness and the end result of
    consultation often has some high and low results. Maybe I
    should say perhaps moderate to low results of effectiveness. I
    have addressed some of those specific examples in my written
    testimony.
        I need to be frank. In some of the more recent sessions
    that I have participated in with the National Indian Gaming
    Commission, too often I have felt that I was there facing a
    foregone conclusion. I was expressing concerns when I didn't
    feel as though those concerns were being taken as they should
    have been.
        Now, I don't want to say that suggesting that Chairman
    Hogen and the other Commissioners or other staff did not give
    due diligence and did not give time and work to those sessions.
    They did endlessly, but I think the outcome is what is of
    concern.
        I don't necessarily fault the Commission for that outcome
    because I think it is a process matter. I know that the
    consultation that we experience today and involve ourselves in
    is up and down the scale, and it depends on who the person is
    there consulting that gives you a relevant end result of the
    value or effectiveness of that consultation session.
        But those negative attributes, those negative things, are
    not what I wanted to dwell on here this morning. I really
    wanted to focus more on what we think consultation should be.
    First of all, tribal governments and matters that affect tribes
    are very wide ranging and very unique, most often to the point
    where one policy or one rule or one law won't fit every
    occasion and every instance but, at a minimum, we think
    consultation should begin with the notice of an issue. The
    notice of an issue.
        Right now we come to the table often with a predrafted
    plan, and we are staged at the table almost from the beginning
    as adversaries, where we should be looking at the problem and
    the issue from the same side of the table. I think effective
    consultation would drive us there.
        There needs to be meetings following that notice of the
    issue to consolidate and gather those impacts from all the
    tribes affected. Those things need to be followed up with
    discussion, written follow-up and meeting follow-up. The
    follow-up from gathering the information, I believe, needs to
    then be brought forward to the tribal leaders and is done
    currently. It is done in conjunction often with NCAI, with
    NIGA, with USET, with the MAST Association, where consultation
    sessions get scheduled concurrently with those.
        So even though it would be long and it would be kind of
    cumbersome to do, the end result is a raised level and raised
    value and raised effectiveness of good faith consultation. And
    even though that process perhaps seems long and protracted,
    which I accept that it is, it is far more better than to have
    lengthy and costly litigation.
        We believe this bill is an important step forward in moving
    us in that direction. This is an important step forward in
    building sound government-to-government relationships,
    relationships that are ongoing on a recurring basis--I am
    checking my time here--and relationships so that when an issue
    does come up, we have a process to turn to that is a well-
    lubricated working process and it is not something we are
    discovering as we are en route to it, a process that produces a
    consistent measure and a consistent level of end result.
        For example, in Wisconsin, Governor Doyle in Wisconsin five
    or six years ago introduced a similar executive order mandate
    to all his Secretaries. They have to consult with tribes on
    matters that affect them. We do that on a recurring basis every
    year, every Secretary. Now, the first couple years were a
    little shifty, but eventually these sessions are proving
    workable. We are putting the same amount of time into the work.
    The end result is better.
        Elected leaders come and go. Elected leaders come and go,
    so without some consistent framework for a process the measure
    of effectiveness goes up and down with those elected leaders.
    In fact, this year I will retire this year from my job as
    Chairman in Oneida and, in the process, I will be conveying to
    my successor things such as what is the status of the Indian
    health care bill, NIGC regulations, IHS issues.
        Those are all very, very important matters, but in my
    estimation nothing--absolutely nothing--is more important than
    this process and this bill that is being suggested in this
    consultation process. I applaud you, Chairman Rahall, for
    taking the initiative to move this bill forward, and
    Congressman Kildee as well, for your work.
        We have some concerns that have been mentioned already. I
    won't repeat them. We have concerns about some of the
    litigation and some other things in the bill, but we are
    willing to work with it.
        We are willing to put whatever work and effort is necessary
    to pushing this bill forward and to establishing what we think
    will be beneficial for all of the United States and for all
    tribes in the United States.
        Yawa go.
        [The prepared statement of Mr. Danforth follows:]

     Statement of The Honorable Gerald Danforth, Chairman, Oneida Business
         Committee, Oneida Tribe of Indians of Wisconsin, on H.R. 5608

        On behalf of the Oneida Tribe of Indians of Wisconsin, I am pleased
    to be with you today to present our views concerning H.R. 5608, the
    ``Consultation and Coordination with Indian Tribal Governments Act''.
    Since before the formation of the United States of America leaders from
    the Oneida Tribe have been actively engaged in the consultation of our
    affairs with leaders from other governments.
        The United States has had a rocky relationship with Tribal nations
    since the beginning of development of the federal government and
    executive agencies. Only recently, the first Executive Order was issued
    directing that consultation with Tribal governments be made respecting
    the government to government relationship between the federal
    government and Tribes. Each following President has renewed this call
    to government-to-government relationships with Tribal governments. It
    seems fitting that Congress move to institutionalize this process.
        I am very pleased to report that many agencies recognize the
    primacy of tribal governments within Indian Country. Most interact with
    Indian nations in ways that recognize the roles and authorities
    exercised by those nations in service to their citizens and their
    environments. We believe that H.R. 5608 takes the next logical step by
    clarifying and codifying the true intergovernmental nature of our
    relationship consistent with treaty, federal policy, and the intent of
    Executive Orders issued by Presidents representing both parties. We
    applaud this much needed recognition.
        To support my belief that this legislation is merited, I will focus
    on recent events that demonstrate that current consultation initiatives
    do not consistently function effectively. I point to an issue of Indian
    gaming regulation and a federal agency. Had H.R. 5608 been in force, I
    am confident that the federal agency would have come to very different
    decisions.
        Last October, the National Indian Gaming Commission (NIGC)
    published a series of five proposed regulations and asked tribes to
    provide their comments within 45 days of publication. While there had
    been meetings between NIGC commissioners and representatives of
    interested tribes, most tribes would agree that the NIGC failed in its
    effort to meet its obligations under the government-to-government
    consultation policy set forth under Executive Order #13175.
        Executive Order #13175 directs that agencies of the Federal
    government shall ``respect Indian tribal self-government and
    sovereignty'', that the agencies of the Federal government ``shall
    grant Indian tribal governments the maximum administrative discretion
    possible'' and those agencies of the Federal government shall
    ``encourage tribes to develop their own policies; [and]...defer to
    Indian tribes to establish standards.'' (E.O. 13175, Sec. 3).
        President Bush issued an Executive Memorandum that reiterated this
    commitment by directing that the Federal government is, ``...committed
    to continuing to work with federally recognized tribal governments on a
    government-to-government basis and strongly supports and respects
    tribal sovereignty and self-determination[; and,] that all departments
    and agencies adhere to these principles and work with tribal
    governments in a manner that cultivates mutual respect and fosters
    greater understanding to reinforce these principles.'' Exec. Mem.,
    September 23, 2004.
        While I understand that this bill's mandate extends beyond the work
    of the NIGC, it is useful to consider the actions of this Commission in
    order to demonstrate the need for this legislation.
        To begin, the NIGC's own consultation policy recognizes that Tribes
    are the primary regulator in Indian gaming, whether as sole
    responsibility under Class II, or Compact negotiated responsibilities
    through Class III gaming. The Oneida Tribe believes that respecting
    these responsibilities requires and demands consultation. The NIGC
    itself has committed to the following standard on consultation.
            (III)(D) The NIGC will initiate consultation by providing early
            notification to affected tribes of the regulatory
            policies...that it is proposing to formulate and implement,
            before a final agency decision is made regarding their
            formulation or implementation.
        Tribal governments have created associations to better identify
    technical and policy matters that arise in Indian gaming and Indian
    country such as National Indian Gaming Association, National Congress
    of American Indians, United South and Eastern Tribes Midwest Alliance
    of Sovereign Tribes, we also recognize that meeting with these entities
    is not consultation. NIGC also recognizes this in its consultation
    policy.
            (III)B) ...Consultation with authorized intertribal
            organizations and representative intertribal advisory
            committees will be conducted in coordination with and not to
            the exclusion of consultation with individual tribal
            governments...
        Further, individuals with expertise in Indian gaming have
    participated in working groups created by the NIGC to help the NIGC
    understand the technical nature of Indian gaming activities. However,
    these working groups are not Tribal working groups, and do not purport
    to have the authorization of tribal governments to act on our behalf.
        Finally, the Oneida Tribe does not believe that consultation
    regarding proposed regulations developed beginning in 2004, published
    in the Federal Register in 2006, and withdrawn in early 2007, can be
    considered consultation when publishing ``new proposed regulations'' in
    October of 2007. Consultation, as defined by the NIGC, means meetings
    and discussions, ``before a final agency decision is made regarding
    their formulation or implementation.'' Although notice may have been
    presented regarding these proposed rules in ``Dear Leader''
    correspondence, that type of notice is insufficient to meet the
    requirements of NIGC's consultation policy, does not respect our mutual
    roles in regulating Indian gaming, and does not respect tribal
    government role in regulating activities occurring within their
    jurisdiction.
        Now that I have spent some time explaining what we believe is not
    consultation, I think it would be constructive to consider what
    consultation should include. We believe that clarifying the
    expectations regarding consultation will assist NIGC, the Department of
    Interior, the Indian Health Service and tribes in developing mutual and
    cooperative working relationships regarding regulation and oversight of
    Indian activities.
        It is our position that legislation considered by this body should
    begin with the foundation that Tribal governments have the primary
    responsibility for acting within Indian country and that any action
    should be considered in a perspective of providing assistance in
    carrying out that responsibility. Indian country, Tribal governments,
    and matters affecting Tribes are unique, and a single regulation or
    policy decision cannot take into account this unique aspect. As a
    result, beginning with the premise that Tribal governments are
    responsible will recognize that we have taken into account appropriate
    governing responses addressing the needs within our reservations.
        If regulation or policy is needed, specifically, we believe there
    should be--
          Notification to tribes that the federal Department,
    agency or Commission is considering promulgating rules regarding a
    subject matter.
          Meetings with tribal leaders scheduled to discuss this
    consideration and the parameters of those proposed rules.
          Meetings with tribal leaders to identify how those
    proposed rules will impact individual tribal governments.
          Notification to tribes of the result of those meetings
    and recommendations on how to proceed.
          Meetings with Tribal leaders to explain and/or discuss
    those recommendations.
        It may appear that I have suggested a route that leads to endless
    delays. But I would urge you to consider that tribal governments are
    not idly waiting for agencies to promulgate regulations regarding
    protection of Indians and our lands. Our tribal governments work to
    identify policy and technical matters at all levels. Tribal leaders
    have formed associations to look at national issues, and we have the
    capacity to respond quickly to the call of the federal government. In
    fact, the failure of proper consultation is what leads to a delay in
    implementing new regulations due to an assortment of legal challenges
    that might otherwise be avoided under true consultation processes.
        What I have suggested is a consultation process that recognizes
    tribal government's front line exposure and response to a host of
    issues facing our people and our lands. The Oneida Tribe of Indians of
    Wisconsin believes that the proposed consultation process will result
    in recognition of the roles and responsibilities of tribal governments
    and the federal agencies impacted by this legislation.
        We would note that the Indian Health Service is part of the
    Department of Health and Human Services, and that many of the agencies
    in this Department provide programs and services that significantly
    impact Indian tribes. Further, tribes have become more capable of
    managing their own affairs and administering programs under contracts
    with departments and agencies of the federal government that are not
    included in this bill. Our last request regarding consultation would be
    that Congress considers expanding this bill to include the entire
    Department of Health and Human Services and other federal agencies that
    have a profound impact on our affairs, including at least the
    Departments of Justice, Defense, Energy, Housing and Urban Development,
    Commerce and the Environmental Protection Agency.
        This bill is an important step forward regarding recognizing the
    government to government relationship. However, we are concerned that
    the language in the proposed legislation could result in increased
    litigation challenges where Tribe's find that the agency has not
    addressed Tribal government concerns. As a result, this may place
    tribes and agencies in adversarial positions. We look forward to
    working with your Committee to identify alternative language which
    would address this concern and return to positive working
    relationships.
        As a final note, the bill contains provisions which would lessen
    the burden on Tribes of unfunded mandates. We agree with these
    provisions and urge the final bill to include all federal departments,
    agencies, and commissions which have the authority to promulgate rules
    and regulations that significantly affect Indian self-determination and
    self-governance.
        Thank you for your time and I would be pleased to answer any
    questions you might have regarding our views on this bill.
                                     ______

        The Chairman. I thank each of you for your testimony this
    morning.
        The Chair would like to note with pleasure that all three
    of the previous witnesses have remained to hear your testimony,
    and I wish to commend them for that.
        Let me ask President Shirley. The legislation requires that
    the agencies develop an accountable consultation process. Do
    you think that is adequate or that more criteria is needed to
    better define the process?
        Mr. Shirley. I think it is a beginning. I think it is a
    beginning, Mr. Chairman. I think as leaders of the different
    native nations get together to talk about what is adequate, we
    will get there, but for now I think it is OK.
        The Chairman. All right. Other witnesses have indicated a
    desire to see this extended to other Federal agencies. Would
    you agree with that?
        Mr. Shirley. I agree with that. I think it should be across
    the board. I mean, the U.S. Government is a humongous
    government, but it is an entity that we deal with. I think it
    should be across the board. Yes.
        The Chairman. Thank you.
        Chairman Rolin, let me ask you, in your testimony, you
    provide several examples of how tribal consultation by the
    Indian Health Services work. If IHS is complying with Executive
    Order 13175, is it necessary to include the agency in this
    bill? If so, why?
        Mr. Rolin. I think so because IHS is only a portion of the
    HHS, and our concern is to make sure, Mr. Chairman, that all
    the agencies get included. IHS is complying at this point in
    working with tribes in the consultation process, as my
    testimony indicated, but certainly there is always room for
    improvement.
        As we have heard from both of the other witnesses here,
    they don't always agree that the appropriate consultation has
    taken place, so therefore I do think that they should be
    included in this bill.
        The Chairman. OK. Let me ask you. Would you still support
    this legislation if it is not extended to all Federal agencies?
        Mr. Rolin. That is a good question, sir. I would hope not,
    but I would want it as this legislation. My testimony just
    mentioned the three, the IHS, NIGC and DOI. I would certainly
    want it extended to all other agencies. Yes, sir.
        The Chairman. OK. You mentioned a concern that by not
    including other Federal agencies, Congress is sending a message
    that the other Federal agencies do not need to comply with the
    executive order. So if we do not extend it to other Federal
    agencies, how would you propose to amend the bill?
        Mr. Rolin. Well, certainly we need to make sure that this
    is codified to the effect that all the other agencies are
    required to conform.
        The Chairman. OK. That would be your amendment then?
        Mr. Rolin. That would be my amendment.
        The Chairman. All right. Let me ask Chairman Danforth. In
    your written testimony, you specify steps that you believe
    should be performed if a regulation or policy is needed. Do you
    think that these steps should be incorporated into the bill?
        Mr. Danforth. Yes, I do.
        The Chairman. And are the five steps currently used in any
    of the consultation processes employed by the Administration
    under Executive Order 13175?
        Mr. Danforth. Some of those steps are incorporated, but I
    believe generally the steps are spelled out more in the
    Department's consultation policy.
        I think that to standardize consultation across all of
    Indian Country and standardize consultation across the full
    breadth of the agencies that we interact with, that these steps
    and perhaps others should be incorporated into the bill so that
    there is that consistency.
        The Chairman. All right. You indicated a concern that the
    proposed bill could lead to increased litigation where a tribe
    does not find that an agency has addressed the tribe's
    governmental concerns.
        What provision in the bill do you believe will result in
    increased litigation, and how would you address this issue?
        Mr. Danforth. I can't recall the specific section instantly
    and I would like some more time to provide you some written
    follow-up to that, but I do know that the bill contains some
    components of it that could be perceived for a tribe or an
    entity to move too quickly to try to litigate an issue before
    even the consultation was completed.
        So what my recommendations would be specifically, I would
    ask for more time to provide that to you.
        The Chairman. Yes. We would like to receive that too.
        I want to ask you to bear with the Committee just one
    minute. We have another Member on his way. I think he is just
    outside the door. He had some questions that he would like to
    ask.
        [Pause.]
        The Chairman. We recognize the gentleman from Wisconsin,
    Mr. Kind.
        Mr. Kind. I was trying to take care of a little business
    out in the hall.
        First of all, I do want to thank you, Mr. Chairman and Mr.
    Kildee, for bringing what I think is a very important and
    worthwhile piece of legislation, and certainly appreciate the
    witnesses' testimony here today. I understand Director Gidner
    will have a chance to respond in the next panel.
        I have a special welcome to Chairman Danforth of the Oneida
    Nation in Wisconsin and wish him all the best in his
    retirement. I know that is coming up very fast, but he has
    worked tirelessly on behalf of the members of the Oneida
    Nation, and we really appreciate his assistance.
        I guess, Chairman Danforth, let me ask you, and of course
    this is relevant to all the witnesses as well, but getting to
    the basic need for this legislation. You would think it is
    intuitive that the Federal agencies would be not only
    notifying, but consulting with various groups and entities in
    our country where their decisions are going to impact them, and
    yet we have been getting a variety of reports that that hasn't
    always been the case or merely it was notice that served as
    consultation and not really a back and forth conversation.
        I guess my question for you is, is this a matter of process
    that is breaking down or is it personalities that haven't found
    the value in sitting down and consulting with the various
    nations in the country before decisions are made? If it is
    personality, how does the legislation get to that then, other
    than setting up a new kind of requirement or mandate trying to
    force these conversations?
        Chairman Danforth, do you have any thoughts on that?
        Mr. Danforth. Yes. Thank you, Congressman Kind. Good to see
    you again.
        Mr. Kind. Yes.
        Mr. Danforth. And thank you for being here. The way
    consultation occurs, it does lend itself to personalities. I am
    not going to suggest that that is always the case, but I do
    think that legislation has a tendency to take into
    consideration and eliminate, to the greatest extent possible,
    personalities from influencing the process.
        For example, I agree consultation does not mean unanimous
    agreement at the end of the process but, at a minimum,
    consultation should mean that if there is something that I am
    not in agreement with, I should at least understand the reasons
    why and vice versa for the other parties at the table. If there
    is something that they are not agreeable with, then at a
    minimum I owe it to give reasons and understanding as to my
    reasons, my logic behind the issue.
        I forgot the first part of your question. I am sorry.
        Mr. Kind. Well, I was just trying to get at whether or not
    this is necessary in regards to the process that is already in
    place and that, but I think some of you have already testified
    that it makes a lot more sense to have these conversations take
    place upfront in order to allay any misperceptions or
    misunderstandings that might be made.
        Therefore, at the back end, we might be able to avoid some
    of the litigation expenses that might inevitably arise out of a
    lack of a consultation process. Do you think with this
    legislation that is pending that that would help substantially
    in trying to reduce potential litigation in the future?
        Mr. Danforth. I think it would. Absolutely. It is worth the
    time.
        If we look at some examples of consultation that occurred
    in the beginning--and differences during the process which
    ended up in litigation--if we couple all that time and expense
    and work, I think we would find that by being more deliberate
    and exact with the consultation upfront, the whole process
    would be shortened, less costly and more standard.
        Mr. Kind. And finally, let me just ask each of you. It is
    one thing passing legislation requiring consultation to take
    place. It is another thing getting good faith negotiations or
    good faith consultations to take place.
        Is that something that can be dealt with effectively in the
    legislation? Do any of you have any thoughts on how we can
    foster a better working relationship and good faith
    conversations to take place in the future?
        Mr. Danforth. If I can start with that, I would say that I
    think there needs to be a clarification of what the
    expectations are upfront, and I think defining the expectations
    and clarifying them would be very helpful in the process.
        Mr. Kind. Yes.
        Mr. Rolin. Mr. Kind, I would certainly concur with the
    Chairman that we definitely need to know what the expectations
    are and what is expected of us.
        As I mentioned in my testimony, I gave a couple examples of
    how the consultation does work with the Tribal Leaders Diabetes
    Committee and the reauthorization of the Indian Health Care
    Improvement Act. That is just two good examples. We know that
    it works, so definitely I think it could.
        Mr. Kind. Yes. President Shirley, do you have anything?
        Mr. Shirley. Yes.
        [Away from microphone.]
        Mr. Shirley. I don't know if you can do that in the
    legislation, but I think it would help to define what we mean
    by meaningful because certainly we have conversations, but it
    seems that oftentimes it doesn't go anywhere. That is where the
    concern is.
        Mr. Kind. Yes.
        Mr. Shirley. If the tribes are going to be talking to the
    Bureau of Indian Affairs, the Department of Interior Secretary,
    DHHS, it would help to know what the meaning of ``meaningful''
    means.
        Mr. Kind. Yes. I think the point as far as what the
    expectations should be is a very valid one because I am sure
    that the Director, who is soon going to testify, will be
    stating that while they believe in their own mind that there
    has been effective consultation, but sometimes at the end of
    the day the answer is no, and sometimes people view that as
    lack of consultation or lack of a good faith effort, so I think
    some of those things just can't get resolved through
    legislation.
        Thank you all again. Thank you, Mr. Chairman.
        The Chairman. Thank you, Mr. Kind.
        The gentleman from Arizona, Mr. Grijalva?
        Mr. Grijalva. Thank you, Mr. Rahall, and thank you for the
    legislation. I think the President said it well with the issue
    of meaningful consultation.
        Implicit in that definition is being treated government-to-
    government and as equals in that discussion, and that is not
    occurring. The example, a very current example that affects
    President Shirley's nation, has to do with the uranium
    exploration and potential mining around the Grand Canyon.
        The lands, whether ancestral or whether bordering the
    nation, that would have been the requirement, I think, for
    meaningful consultation advice. That did not occur. You know,
    inviting the tribe to an public meeting where they show maps
    and graphs is not meaningful consultation. I don't care how you
    define it.
        So, Mr. Rahall, just a comment. I am very appreciative of
    the legislation. I think it will go a long ways to returning
    that government-to-government that we all seek.
        The Chairman. Thank you.
        Gentlemen, again we thank you for being with us today and
    your very insightful testimony.
        Our next witness is Mr. Jerry Gidner, the Director of the
    Bureau of Indian Affairs, who will be testifying on all the
    bills under consideration today, H.R. 5680, H.R. 3522, H.R.
    3490 and S. 2457.
        Director Gidner, we welcome you to the Committee. We have
    your prepared testimony, and it will be made a part of the
    record as if actually read. You may proceed as you desire.

                 STATEMENT OF JERRY GIDNER, DIRECTOR,
                        BUREAU OF INDIAN AFFAIRS

        Mr. Gidner. Thank you, Mr. Chairman. Mr. Chairman and
    Members of the Committee----
        The Chairman. Hold on just a minute until we clear.
        [Pause.]
        The Chairman. Would somebody close that back door, please?
    Thank you.
        OK. You may proceed.
        Mr. Gidner. Is it something I said? Thank you, Mr.
    Chairman, Members of the Committee.
        I am Jerry Gidner. I am the Director of the Bureau of
    Indian Affairs at the Department of the Interior, and I am
    going to provide the Department's testimony on a series of
    bills today. With your permission, I will just run through
    those in order.
        The first is H.R. 3522, which is a bill to ratify a
    conveyance of a portion of the Jicarilla Apache Reservation to
    Rio Arriba County. This bill would provide congressional
    ratification of a settlement to a longstanding dispute between
    the tribe and the county. The Department supports this
    legislation.
        This land can only come out of trust through congressional
    action. Congressional action would remove the lands from trust
    and realign a portion of the tribe's reservation, resolving a
    jurisdictional dispute over a road. Both the county and the
    tribe have performed their duties under a settlement agreement,
    and this issue is now ready for congressional action.
        We do not believe that removing land from trust is always
    an appropriate solution to problems, but in this case, given
    the negotiated settlement and the proactive dispute resolution
    between the tribe and the county, we believe that it is
    appropriate.
        The next bill, H.R. 3490, the Tuolumne Me-Wuk Land Transfer
    Act of 2007, would transfer to the tribe lands currently
    administered by the Bureau of Land Management to be held in
    trust by the United States for the tribe. We support this bill
    with one slight amendment.
        There is a 180 day timeline to complete the survey of three
    tracts to determine if they are ready for transfer. We don't
    believe this time period is sufficient to allow completion of
    this survey field work.
        I understand that the tribe will be having meetings and is
    going to propose a solution to that, but we suggest the
    language be changed to ``as soon as practicable'' or, if a date
    is necessary, to ``90 days following completion of the required
    field work.''
        S. 2457 is a bill to provide extensions of leases for
    certain land of the Mashantucket Pequot Tribe. This would allow
    the tribe to lease restricted fee land for a period of time or
    with extensions for a period of time exceeding that currently
    set forth by statute. There is precedent for this. Other tribes
    have received extensions. This bill would provide an extension
    for 75 years, and we support this legislation.
        H.R. 5680 is a bill to amend certain laws. It has 10
    sections, which I will go through in order. Section 2 provides
    for an annual disbursement to the Colorado River Indian Tribes,
    provides the Secretary discretion to make an annual
    disbursement to the Colorado River Tribes from revenues
    deposited into the Treasury Department from power operations.
        The Department of Interior opposes this section. We believe
    it would divert funds intended for the BIA's Colorado River
    Agency. These funds are also not held in trust and are
    necessary to maintain and operate the power system. These funds
    are also subject to litigation that is pending that was
    recently initiated by the Colorado River Indian Tribe. Again,
    we oppose Section 2 of H.R. 5680.
        Section 3 of 5680 inserts new language into 25 U.S.C.
    415[f] regarding the Gila River Indian Community, and we do not
    have any objection to that section, Section 3.
        Sections 4 and 5 allow the Sault Ste. Marie Tribe of
    Chippewa Indians--which with full disclosure, I am a member of
    that tribe--and the Lac du Flambeau Band of Lake Superior
    Chippewa Indians to transfer or convey without further
    authorization all or any part of each tribe's interest in land
    that is not held in trust.
        We believe they already have that authority, as does any
    person or entity who owns fee land within the United States.
    Sections 4 and 5 would provide important clarification of that.
    We have one concern about subsection [d] of Section 4, which
    makes the effective date of the section January 1, 2005. We are
    not sure why there is that effective date, but we support those
    sections with that one concern.
        Section 6 of H.R. 5680 would allow the Morongo Band of
    Mission Indians to enter into nonagricultural leases for the
    tribe's restricted fee land with lease terms of not more than
    50 years. As with the prior section, there is precedent for
    this, and we support that section.
        Section 7 involves the Cow Creek Band of Umpqua Indians. As
    similar to the other sections, it would allow them to enter
    into leases of restricted fee land for terms up to 99 years,
    subject to the Secretary's approval. For the reasons above, we
    support that. We would point out there is a typographical error
    in the name of the tribe in the bill.
        Section 8 of 5680. We have concerns with it and we seek
    clarification of its meaning. It proposes elimination of
    certain rights of a class as defined in 43 U.S.C. Sec. 1606.
    Just to be honest, we are not sure exactly the effect of that
    or what that means, and we would seek the Committee's
    clarification of that.
        Section 9 of H.R. 5680 lifts the restriction requiring
    funds to be invested in low earning, Federally backed
    instruments regarding the Columbia River Treaty fishing access
    sites. Instead of requiring the funds to be invested in
    Federally backed securities, it would allow the use of the
    prudent investment standard. We have concerns about this and
    would like to have further discussions.
        Our concerns. In the past we have opposed the use of the
    prudent investment standard, and the reason basically is if
    that is a standard that is allowed to be used, there could be
    loss of funds. The Federal government could be required to
    replace those funds. We may, in essence, have to pay twice for
    the same project. So we would support the use of the same
    standard, the existing standard, which is that the funds must
    be invested in Federally backed securities.
        Section 10 of H.R. 5680 provides the Secretary shall take
    lands into trust for the benefit of the Miccosukee Tribes of
    Florida and include those lands as part of the tribe's
    reservation. We recognize Congress' authority to legislatively
    act on taking lands into trust. However, we prefer the
    administrative process in Section 151 of our regulations. That
    is a process we prefer that we usually use.
        That concludes my testimony. I would be glad to take any
    questions you may have.
        [The prepared statement of Mr. Gidner follows:]

      Statement of Jerry Gidner, Director, Bureau of Indian Affairs, U.S.
    Department of the Interior, on H.R. 3522, H.R. 3490, S. 2457, and H.R.
                                      5680

        Mr. Chairman and Members of the Committee, my name is Jerry Gidner.
    I am the Director for the Bureau of Indian Affairs at the Department of
    the Interior (Department). I am here today to provide the Department's
    testimony on H.R. 3522, a bill to ratify a conveyance of a portion of
    the Jicarilla Apache Reservation to Rio Arriba County, State of New
    Mexico, pursuant to the settlement of litigation between the Jicarilla
    Apache Nation and Rio Arriba County, State of New Mexico, to authorize
    issuance of a patent for said lands, and to change the exterior
    boundary of the Jicarilla Apache Reservation accordingly, and for other
    purposes; H.R. 3490 the Tuolumne Me-Wuk Land Transfer Act of 2007; S.
    2457, a bill to provide for extensions of leases of certain lands by
    the Mashantucket Pequot (Western) Tribe; and H.R. 5680, a bill to amend
    certain laws relating to Native Americans, and for other purposes.
        H.R. 3522, a bill to ratify a conveyance of a portion of the
    Jicarilla Apache Reservation to Rio Arriba County, State of New Mexico,
    pursuant to the settlement of litigation between the Jicarilla Apache
    Nation and Rio Arriba County, State of New Mexico, to authorize
    issuance of a patent for said lands, and to change the exterior
    boundary of the Jicarilla Apache Reservation accordingly, and for other
    purposes.
        H.R. 3522 would provide Congressional ratification of a settlement
    to a long-standing dispute and court case between the Jicarilla Apache
    Nation (Tribe) and Rio Arriba County, New Mexico (County). The
    settlement reached by the parties requires Congressional action. The
    Department supports this legislation.
        This legislation centers around a dispute between the Tribe and
    County regarding the ownership status of a road on a parcel of land in
    Rio Arriba County, known as the Theis Ranch. The Jicarilla Apache
    Nation acquired title to the Ranch in 1985. The United States acquired
    the property in trust for the benefit of the Tribe in March 1988 and
    proclaimed it part of the Tribe's reservation in September 1988. In
    October 1987, the County filed a lawsuit in District Court for the
    State of New Mexico, asking the court to determine which entity owned
    the road. On December 10, 2001, the District Court determined that the
    Jicarilla Apache Nation was the proper owner of the portions of the
    road traversing the Tribe's reservation. The County appealed this
    decision and the matter is currently pending before the Court of Appeal
    of the State of New Mexico, although it has been stayed pending outcome
    of a Settlement Agreement reached by the parties during mediation.
        The Settlement Agreement was executed by the Tribe and County on
    May 3 and 15, 2003, respectively, and approved by the Department on
    June 18, 2003. It would settle all claims in the appeal by removing
    certain lands within the Theis Ranch from trust and reservation status
    and conveying them to the County. The transferred lands would be
    subject to restrictive covenants limiting their use to governmental
    purposes and prohibiting their use for prison, jail or incarceration
    facility.
        In order for the Tribe and County's jurisdictional plan to work,
    the parcels at issue would be removed from trust and reservation
    status. Land can only come out of trust status through Congressional
    action. Congressional action would remove the lands from trust status
    and realign the Tribe's reservation boundaries, thereby resolving which
    entity has jurisdiction over the road. Both the County and Tribe have
    performed their respective duties under the Settlement Agreement and it
    is ready for Congressional action to remove the subject lands from
    trust and reservation status.
        The Department supports this bill because it encourages cooperation
    and proactive solutions to resolve jurisdictional and land conflicts
    between Indian tribes and their neighbors. While the Department does
    not believe that removal of land from trust status or diminishment of
    reservation boundaries may be an appropriate solution in all future
    cases, the Department applauds the work of the parties in reaching this
    settlement and supports enactment.
    H.R. 3490, the Tuolumne Me-Wuk Land Transfer Act of 2007.
        H.R. 3490, the ``Tuolumne Me-Wuk Land Transfer Act of 2007''
    transfers to the Tuolumne Band of Me-Wuk Indians of the Tuolumne
    Rancheria lands currently administered by the Bureau of Land Management
    (BLM) to be held in trust by the United States for the benefit of the
    Tribe. The Department supports the bill with an amendment.
        The Tuolumne Me-Wuk Land Transfer Act represents years of
    cooperative effort between the Tuolumne Band of Me-Wuk Indians of the
    Tuolumne Rancheria (Tribe) and the BLM.
        This bill would transfer three parcels of BLM land to the Tribe.
    The Tribe seeks the first tract, an approximately 50-acre parcel, to
    establish a cultural center. The second tract, of approximately 15.35
    acres, would help meet the Tribe's agricultural, housing, and open
    space needs. The third tract, of approximately 0.4 acres, contains a
    cemetery where tribal members and other Indians are buried. These
    scattered tracts of public lands are adjacent to the current Tuolumne
    Indian Rancheria, located just north of the small community of
    Tuolumne, in rural northwest Tuolumne County.
        The land in question has been managed by the BLM pursuant to a 1983
    Management Framework Plan (MFP) for the Tuolumne River Management Area.
    The MFP was replaced by the Sierra Resource Management Plan (SRMP)
    through a Record of Decision on February 15, 2008. The SRMP clearly
    identifies these scattered tract parcels as potentially available for
    disposal based on current land uses. Transfer of the three parcels to
    the Tribe would therefore conform to the SRMP.
        The Department is pleased that H.R. 3490 addresses valid and
    existing rights and gaming. However, we are concerned with the 180-day
    timeline to complete the survey of the three tracts to determine it
    they are ready for transfer. This time period is not sufficient to
    allow completion of survey fieldwork. We suggest the language be
    changed to ``as soon as practicable'' or, if a date is determined
    necessary, perhaps ``90 days following completion of the required
    fieldwork'' since such fieldwork is not currently scheduled. The timing
    of completion will depend on funding availability.
        In summary, the Department has had a cooperative working
    relationship with the Tuolumne Band of Me-Wuk Indians on this requested
    land transfer and supports H.R. 3490 with the above amendment.
    S. 2457, a bill to provide for extensions of leases of certain land by
            the Mashantucket Pequot (Western) Tribe.
        S. 2457 would allow the Mashantucket Pequot Tribe or a Tribal
    corporation chartered pursuant to 25 U.S.C. Sec. 477 to lease the
    Tribe's restricted fee land with options for extensions of the lease
    term of more than the time period currently set forth by statute at 25
    U.S.C. Sec. 477.
        Section 477 allows certain tribal corporations to lease tribal land
    for a term of 25 years. This legislation would allow the Mashantucket
    Pequot Tribe to enter into leases for a 25-year term with options to
    extend the lease for not more than two additional terms of up to 25
    years each. Approval of the lease extensions would not be subject to
    Secretarial approval and would only require approval of the
    Mashantucket Pequot Tribal Council. The Department would not be liable
    for any losses resulting from the lease renewals. Gaming would also not
    occur on any land leased with an option to renew pursuant to this
    legislation.
        There is precedent for this bill's attempt to lengthen the lease
    period as several tribes have already received specific exemptions from
    similar lease limitations in Section 415(a); those tribes may enter
    into leases with 99-year terms with the Secretary's approval. The
    Mashantucket Pequot Tribe seeks lease terms that may, with optional
    extensions, reach 75 years and has demonstrated sound business judgment
    in its economic ventures. The Department therefore, supports this
    legislation.
    H.R. 5680, a bill to amend certain laws relating to Native Americans,
            and for other purposes.
        The Department has concerns with many of the provisions in H.R.
    5680 as currently drafted.
         annual disbursement to the colorado river indian tribes (crit)
        Section 2 of H.R. 5680 provides the Secretary of the Interior
    discretion to make an annual disbursement to the Colorado River Indian
    Tribes (CRIT) from revenues deposited into the Treasury pursuant to 25
    U.S.C. 385c from power operations on the CRIT reservation. The
    Department of the Interior opposes this section. Section 2 could divert
    appropriated funds intended for the Bureau of Indian Affairs' (BIA)
    Colorado River Agency to the CRIT. Such a diversion would be
    inappropriate because the funds are not held in trust by the United
    States and are necessary to maintain and operate the BIA's power
    system. In addition, the funds are the subject of pending litigation
    recently initiated by CRIT in federal district court.
        The BIA's Colorado River Agency owns and operates irrigation
    facilities and a power system along the Colorado River which serves the
    CRIT reservation and also provides power to users off the reservation.
    Headgate Rock Dam is the centerpiece of this irrigation and power
    system. The BIA sells electricity generated by the dam's powerhouse to
    users of the power system and sends the revenue it collects to the
    United States Treasury. These funds may then be appropriated to BIA for
    use on the power system, or other purposes, as authorized by 25 U.S.C.
    385c.
        It would be inappropriate to disburse these power funds to CRIT, or
    any other Indian tribe, because the funds are not a trust asset and
    neither CRIT, nor any other tribe, has a beneficial interest in them.
    Funds appropriated to the BIA for the Colorado River Agency power
    system by 25 U.S.C. 385c should not be decreased because they allow BIA
    to operate and maintain its power system. Further, section 385c
    identifies certain general purposes for which power revenues may be
    expended, none of which involve disbursement to a tribe. CRIT has also
    filed a lawsuit against BIA in federal court. Section 2 could deplete
    the power fund contrary to CRIT's claims in court. For these reasons,
    the Department opposes section 2 of H.R. 5680.
    Construction Contracts inclusion to 25 USC 415f, Gila River Indian
            Community
        Section 3 of H.R. 5680 inserts new language ``or construction
    contract'' into 25 U.S.C. 415f, where any contract affecting land
    within the Gila River Indian Community Reservation may contain a
    provision for the binding arbitration of disputes arising out of such
    contracts. This new language identifies that ``construction contracts''
    are included within the meaning of 25 U.S.C. 415f. The Department
    raises no objection to this amendment to 25 U.S.C. 415f.
       sault ste. marie tribe of chippewa indians of michigan and lac du
          flambeau band of lake superior chippewa indians of wisconsin
        Sections 4 and 5 of H.R. 5680 would allow the Sault Ste. Marie
    Tribe of Chippewa Indians of Michigan and the Lac du Flambeau Band of
    Lake Superior Chippewa Indians of Wisconsin, respectively, to transfer,
    lease, encumber, or otherwise convey, without further authorization or
    approval, all or any part of each Tribe's interest in any real property
    that is not held in trust by the United States for the benefit of the
    Tribe.
        The Non-Intercourse Act, based on a 1763 proclamation of King
    George III and originally passed in 1793 by Congress, prohibits the
    conveyance of an interest in Indian land from any Indian tribe without
    the approval of the United States. There is some dispute whether fee
    land owned by a tribe would fall under this prohibition. We urge
    Congress to clarify this issue. Clarification will remove obstacles to
    economic development opportunities and it will enhance tribal
    sovereignty.
        While we believe each Tribe identified in sections 4 and 5 has the
    authority to lease and convey its fee property as anyone else does who
    owns land within the United States, sections 4 and 5 of H.R. 5680, as
    they speak to the Sault Ste. Marie Tribe of Chippewa Indians of
    Michigan and to the Lac du Flambeau Band of Lake Superior Chippewa
    Indians of Wisconsin, would provide important clarification. We do
    however, express concern with section 4, subsection (d), which makes
    the effective date of the section January 1, 2005 without reason or
    purpose or other background information.
                         morongo tribe lease extension
        Section 6 of H.R. 5680 would amend 25 U.S.C. Sec. 415(a) to allow
    the Morongo Band of Mission Indians to enter into non-agricultural
    leases for the Tribe's restricted fee land with lease terms of not more
    than 50 years. As noted above, Section 415(a) requires the Secretary of
    the Interior to approve leases of restricted land for public,
    religious, educational, recreational, residential, business and farming
    purposes. Leases of restricted land for non-agricultural purposes are
    generally required to contain a lease term of not more than 25 years
    with the possibility of an extension for an additional 25 years.
        This legislation would insert a provision into Section 415(a)
    through which the Morongo Band would be able to enter into leases with
    an initial term of up to 50 years upon the Secretary's approval.
    Several tribes have already received specific exemptions from these
    lease limitations in Section 415(a); those tribes may enter into leases
    with 99 year terms with the Secretary's approval. The Department
    supports this section.
                        cow creek band leasing authority
        Section 7 of H.R. 5680 would amend 25 U.S.C. Sec. 415(a) to include
    the Cow Creek Band of Umpqua Indians in the list of tribes that may
    enter into leases of their restricted fee land for terms of up to 99
    years subject to the Secretary's approval. There are already several
    tribes that are authorized to enter into leases with such a term in
    Section 415(a), and the Department supports the inclusion of the Cow
    Creek Band into this group. The Department supports this section of the
    legislation if amended to remedy a typographical error in the name of
    the Tribe.
                       new settlement common stock issued
        Section 8 of H.R. 5680 provides for specific new language that
    eliminates existing language that allowed, as an exception, ``the
    issuance of such Settle Common Stock by a majority of the class of
    existing holders of Settlement Common Stock carrying such rights
    separately approve[d] the granting of such rights. Further, the new
    language would eliminate current language that speaks to ``the articles
    of incorporation of the Regional Corporation,'' which ``shall be deemed
    to be amended to authorize such class vote'' consistent with the
    preceding granting of such rights, which is provided in the current
    chapter in the Alaska Native Claims Settlement Act (ANCSA) 43 U.S.C.
    Section 1606(g)(1)(B)(iii).
        Additionally, the specific new language would eliminate the
    authority of transferring Settlement Common Stock as a gift ``to a
    Native or a descendant of a Native (iii) as an inter vivos gift from a
    holder to his or her child, grandchild, great-grandchild, niece,
    nephew, or ``brother or sister,'' which is currently allowed in 43
    U.S.C. 1606(h)(1)(C)(iii).
        The Department expresses concern with Section 8 of H.R. 5680 and
    seeks clarification. Section 8 proposes elimination of certain rights
    of a ``class,'' as defined in 43 U.S.C. Section 1606(g)(1)(B)(iii), and
    its proposed elimination of a gift transfer currently authorized for
    Settlement Common Stock under 43 U.S.C. 1606(h)(1)(C)(iii), without
    reason or purpose or other background information. In addition, we are
    concerned with the potential effect of this section on ANCSA
    corporations as business corporations under state law.
                   columbia river treaty fishing access sites
        Section 9 of H.R. 5680 lifts a restriction that requires funds to
    be invested in low earning federally-backed instruments. These
    investments tend to yield a lower percentage of earnings, which may be
    inadequate for the Tribe's annual Operation and Maintenance needs. This
    legislation would allow investment of operation and maintenance funds
    for the Columbia River treaty fishing access sites using the prudent
    investment standard. Under this provision, the funds might be invested
    in stocks that could yield a higher rate of return or that could cause
    the funds to lose a significant part of their value. On November 8,
    2007, the Department testified before this Committee on H.R. 3994, the
    ``Department of the Interior Tribal Self-Governance Act of 2007''. In
    that statement, the Department testified in opposition to use of the
    prudent investment standard. We expressed our concern that if there is
    a loss to an investment, services may cease and the federal government
    may need to provide more funding and, in essence, pay twice for the
    program or project. Current law requires that these funds be invested
    in obligations or securities of the United States or securities that
    are guaranteed or insured by the United States. The Department has been
    working with the Committee staff on this issue and looks forward to
    continuing discussions with the Committee.
                     miccosukee tribe of indians of florida
        Section 10 of H.R. 5680 provides that the Secretary shall take
    certain lands into trust for the benefit of the Miccosukee Tribe of
    Indians of Florida (Tribe) and include it as part of the Tribe's
    reservation. The land is described as Tracts A and B of the Kendale
    Lakes North Section One, consisting of 229.3 acres in Miami-Dade
    County, Florida. The land is currently under consideration as an off-
    reservation trust land acquisition by the Eastern Regional Office in
    accordance with 25 CFR 151, Land Acquisitions. The proposed acquisition
    is a discretionary trust land acquisition authorized by Section 5 of
    the Act of June 18, 1934 (48 Stat. 984, 25 USC 465), as amended.
        The Department recognizes Congress' authority to legislatively act
    on taking land into trust for the benefit of an Indian tribe. However,
    the Department prefers the administrative process for taking land into
    trust authorized by Section 5 of the Indian Reorganization Act of 1934
    (IRA), which authorizes the Secretary to acquire land in trust for
    Indians ``within or without existing reservations.'' Under these
    authorities, the Secretary applies his discretion after consideration
    of the criteria for trust acquisitions in our ``151'' regulations (25
    CFR Part 151), unless, of course, the acquisition is legislatively
    mandated.
        This concludes my prepared testimony. I am happy to answer any
    questions the Committee may have.
                                     ______

        The Chairman. Thank you very much. The Committee does
    appreciate your views on all the pending bills.
        I am going to turn my time over to Mr. Grijalva but, before
    I do that, I want to recognize Mr. Kildee, a cosponsor with me
    on 5608. He has already been thanked numerous times this
    morning, so I will recognize him for any comments he wishes to
    make.

    STATEMENT OF THE HONORABLE DALE E. KILDEE, A REPRESENTATIVE IN
                  CONGRESS FROM THE STATE OF MICHIGAN

        Mr. Kildee. Thank you very, very much. I was at the
    Education and Labor Committee markup over there.
        I think we have done a great job on 5608. I appreciate
    being an original co-sponsor on the bill. What we have done, we
    have told the Interior Department in general that consultation
    with these sovereign tribes means real consultation, not
    telling them what one side has decided to do. I think we made
    that very, very clear. And also with the National Indian Gaming
    Commission, the fact that consultation really means
    consultation.
        This committee is probably the best guardian of that
    sovereignty. Mr. Chairman, I appreciate your constant
    guardianship in that area. Thank you very much.
        The Chairman. Thank you. The Chairman certainly welcomes
    and thanks you for your leadership on Native American issues
    over decades in this body.
        Mr. Grijalva, I will yield you such time as you may want.
        Mr. Grijalva. Thank you, Mr. Chairman. I appreciate that.
        Mr. Director, just a couple of questions for clarification.
    In your testimony you state that Section 385[c] identifies
    certain general purposes for which power revenues may be
    expended. None of these involve disbursement to a tribe.
        The question I have is, does Congress have the authority to
    authorize the funds be used for the purposes provided in this
    legislation? Is that a congressional authority issue as well?
        Mr. Gidner. I believe you do.
        Mr. Grijalva. Then the question that I would like to follow
    up with is, I think you mentioned that the funds are the
    subject of a pending litigation recently initiated by the tribe
    in the Federal District Court.
        The question is, is the issue before the court the type and
    amount of funds or the manner in which the BIA is expending
    those funds?
        Mr. Gidner. I don't know the answer to that, Congressman. I
    would have to find out.
        Mr. Grijalva. I think that is an important distinction. I
    think the Committee would appreciate that information.
        Mr. Gidner. All right.
        Mr. Grijalva. Let me talk a little bit about the precedent
    and your comments. I think in this legislation, particularly
    Section 2, there already is a fact precedent on what the CRIT
    seeks to do with the legislation under Section 2.
        There seems to be some inconsistency on how BIA approaches
    the use of funds from other similar projects. An example: In
    response to a very critical need for irrigation water on
    another Indian irrigation project in Arizona, Congress
    authorized the BIA to use funds derived from power trust funds
    to purchase irrigation water. That was with the San Carlos
    Irrigation Project.
        There was also legislation that conveyed to BIA BIA's
    irrigation project to the Salt River Pima Maricopa Indian
    Community that included a provision allowing the community to
    collect and disburse the fees collected, pursuant to the 1946
    Act.
        In addition, the Fiscal Year 1984 Interior Appropriations
    Act. That public law directs the BIA to invest Indian power
    trust accounts and to apply the investment proceeds for use in
    connection with projects where the funds were collected. In
    particular, the 1984 Act provides for the use of the interest
    for operation and maintenance expenses, to use the interest for
    that purpose.
        And so the position today on the issue is also, I believe,
    inconsistent with the Department's brief of February 20 in the
    suit which the CRIT brought against the BIA on the use of the
    funds for this project. In the government's response, in their
    brief on page 8, it stated, ``Consequently, Congress can use
    these funds for any purpose.''
        Now it kind of sounds like the government is taking the
    position that the funds can only be used more restrictively.
    Any explanation on that inconsistency?
        Mr. Gidner. I would say, under the current framework, we
    would need to use it more restrictively but, in response to
    your previous question, I think Congress has the right and
    authority to dictate differently through legislation.
        We oppose that legislation. We don't disagree with your
    ability to pass it.
        Mr. Grijalva. So Congress has the authority to authorize
    the use of these funds for other purposes.
        Since the Department does not support this particular
    legislation, do you have any suggestions for the tribe as to
    how they may obtain funding to establish that Office of Energy
    or with other Federal funds to establish that office? Your
    position on that question?
        Mr. Gidner. I think we would have to discuss that with the
    tribe and get more facts, and we could respond to that in
    writing. I don't know today, sir.
        Mr. Grijalva. It is my understanding this is just
    opposition to the tribe having an Office of Energy, correct, or
    am I wrong?
        Mr. Gidner. I wouldn't say that. Again, I will have to get
    more facts.
        Mr. Grijalva. OK. Well, hopefully as a consequence to
    getting more facts, we can do it expeditiously because I think
    the questions that are being asked are important.
        Mr. Chairman, it goes to what I think our colleague, Mr.
    Kildee, has mentioned many, many times that I have heard him
    that the Congress does have the authority to make decisions. I
    think Section 2 is a well thought out and important
    contribution to the tribe, and I would suggest that we get
    those answers to some of the questions back, and I will also
    submit some additional in writing.
        With that, Mr. Chairman, I don't have any additional
    questions. Thank you.
        The Chairman. Thank you.
        Let me ask Mr. Inslee from Washington if he has any
    questions and thank him for agreeing this morning to be a co-
    sponsor of Mr. Kildee's and my consultation bill.
        Mr. Inslee. I appreciate it. I just want to thank you for
    something that has been a frustration for years and years and
    years, and if we get some statutory improvement, I am very
    appreciative of what is going on here. Thank you.
        The Chairman. OK. The gentleman from Maryland, Mr.
    Sarbanes?
        [No response.]
        The Chairman. The gentleman from California, Mr. Baca?
        [No response.]
        The Chairman. OK. We thank you. Thank you, Mr. Gidner, for
    your testimony, and we look forward to receiving the
    information that Mr. Grijalva has requested in writing from
    you.
        Mr. Gidner. Yes, sir.
        The Chairman. Thank you.
        Our final panel is composed of The Honorable Valerie Welsh-
    Tahbo, the Secretary of the Colorado River Indian Tribes, on
    H.R. 5680; The Honorable Kevin Day, the Chairman of the
    Tuolumne Me-Wuk Tribe, on H.R. 3490; Ms. Fidelia Andy,
    Chairwoman, Columbia River Inter-Tribal Fish Commission, on
    H.R. 5680; and Mr. Dennis Lee Forsgren, Jr., Consultant,
    Miccosukee Tribe of Indians of Florida, on H.R. 5680.
        Ladies and gentlemen, we welcome you to our Committee on
    Natural Resources. We have your prepared testimony. It will be
    made part of the record as if actually read. You are encouraged
    to testify, and you may proceed in the order I introduced you.
        Oh, yes. Let me first recognize--excuse me--the gentleman
    from Arizona, Mr. Grijalva.
        Mr. Grijalva. Thank you very much. It is my honor to
    welcome Madam Secretary from the CRIT Nation here. Welcome.
        I have worked with her and tribal leadership on many
    issues, and I am proud to extend this welcome to her and to her
    Nation, and look forward to her testimony.
        Thank you.

      STATEMENT OF THE HONORABLE VALERIE WELSH-TAHBO, SECRETARY,
                      COLORADO RIVER INDIAN TRIBES

        Ms. Welsh-Tahbo. The Colorado River Indian Tribes, or CRIT,
    appreciates the opportunity to testify in favor of Section 2 of
    H.R. 5680, a bill to amend certain laws relating to Native
    Americans. I ask that my written testimony be made part of the
    record.
        CRIT would also like to thank Congressman Grijalva for his
    sponsorship of H.R. 5680 and for his support for CRIT's effort
    to achieve greater energy independence. Enacting Section 2 of
    this bill provides essential support for making the Federal
    policy of tribal energy self-determination a reality on CRIT's
    reservation.
        CRIT would like to propose some amendments to this
    provision to avoid unnecessary delays in implementing the new
    law. Before addressing these amendments, it may be helpful to
    summarize CRIT's proposal and to provide some background
    information.
        Federal law strongly encourages Indian tribes to develop
    their respective energy resources. The Energy Policy Act, or
    2005 Energy Act, provides the regulatory and policy framework
    for tribal energy self-determination. To date, however,
    Congress has not appropriated the necessary resources for
    Indian tribes to realize this new law's intended benefits.
        For example, Title V of the 2005 Energy Act authorizes
    tribes to create tribal energy resource agreements, or TERA,
    but developing and obtaining Federal approval for a TERA is
    likely to cost hundreds of thousands of dollars. In addition,
    the 2005 Energy Act requires an Indian tribe to demonstrate the
    institutional capacity to implement a TERA before the Secretary
    can approve the TERA.
        CRIT has identified an appropriate funding source to
    establish the capacity CRIT needs to implement the 2005 Energy
    Act under Federal law. The revenue derived from operating BIA's
    power system is held in a special account under 25 U.S.C.
    Sec. 385[c]. This revenue may only be expended for the project
    where it was generated.
        The law already authorizes the Bureau of Indian Affairs, or
    BIA, to expand these power proceeds and the related investment
    income on a revolving fund basis for the BIA's power system at
    CRIT. CRIT seeks legislation providing that the Secretary of
    Interior may disburse some of these proceeds directly to CRIT
    for the purpose of developing CRIT's institutional, managerial
    and technical capacity envisioned by the 2005 Energy Act.
        The Department raises three objections to the provisions of
    Section 2 of H.R. 5680. First, the Department asserts that such
    a diversion would be inappropriate because the funds are not
    held in trust by the United States and are necessary to
    maintain and operate the BIA power system.
        CRIT does not agree. The funds CRIT seeks to access consist
    of excess revenues, the annual revenues that are greater than
    the annual cost of operation and maintenance from the BIA power
    utility on the Colorado River Indian Reservation. H.R. 5680
    therefore does not take funds necessary from the operation and
    maintenance of the power system away from the BIA power
    utility.
        Second, the Department asserts, in addition, that the funds
    are the subject of pending litigation recently initiated by
    CRIT in Federal District Court.
        CRIT does not agree. CRIT initiated action in Federal
    District Court to challenge the purposes for which the BIA was
    expending funds from the power account. The funds are not
    themselves the subject of pending litigation initiated by CRIT.
    Instead, it is attempting to assure that BIA expenditures of
    these funds are both proper and lawful under 25 U.S.C. 385[c].
        Third, the Department further asserts that Section 385[c]
    identifies certain general purposes for which power revenues
    may be expended, none of which involve the disbursement to a
    tribe.
        CRIT does not agree. While the Code does identify purposes
    for which the power revenues may be expended, as the Department
    stated in its briefs in Federal District Court, Congress may
    authorize the use of these funds for other purposes, at least
    in instances where the relevant tribal beneficiary grants its
    consent.
        In response to a critical need for irrigation water on an
    Indian irrigation project in Arizona, Congress authorized BIA
    to use the funds held in the power account to purchase
    irrigation water. There is also precedent for making these
    funds directly available to the respective tribal beneficiary.
        The legislation that conveyed the BIA's irrigation project
    to the Salt River Pima Maricopa Indian Community included a
    provision allowing the community to collect and disburse the
    fees collected pursuant to the 1946 Act. Similarly, in this
    case CRIT is asking Congress to authorize the expenditure of a
    small portion of these excess revenues made up primarily of
    interest from the power account to enable CRIT to develop a
    tribal department of energy to oversee the power system.
        CRIT has significant but unrealized potential for energy
    development. CRIT has a sizable amount of undeveloped land in
    both Arizona and California and, perhaps most important, our
    reservation is strategically located at a crossroad of several
    major interstate energy transmission corridors for both
    electricity and natural gas and in a high solar radiation belt.
        These major resources invite CRIT electric energy
    developments, including renewable solar and other forms of
    renewable electricity generation, as well as more conventional
    thermal and pump storage installations. Opportunities also
    exist for alternate fuels, namely biofuel and compressed
    natural gas production.
        The only thing missing is the funding that CRIT needs to
    develop a TERA and to establish the administrative and
    regulatory structure that Congress envisioned when it passed
    the 2005 Energy Act. Enacting Section 2 of H.R. 5680 is an
    essential step in making the shared Federal/tribal vision of an
    energy future a reality.
        Once again, we would like to thank Chairman Rahall for
    holding this hearing and Congressman Grijalva for his
    leadership in introducing this legislation. Thank you.
        [The prepared statement of Ms. Welsh-Tahbo follows:]

         Statement of Valerie Welsh-Tahbo, Secretary, Tribal Council,
            Colorado River Indian Tribes, on Section 2 of H.R. 5680

    I. Summary
        The Colorado River Indian Tribes (``CRIT'') appreciates the
    opportunity to testify in favor of Section 2 of H.R. 5680 (Grijalva) (a
    Bill to Amend Certain Laws Relating to Native Americans). CRIT would
    also like to thank Congressman Grijalva for his sponsorship of H.R.
    5680 and for his support for CRIT's effort to achieve greater energy
    independence. Enacting Section 2 of this bill provides essential
    support for making the Federal policy of tribal energy self-
    determination a reality on CRIT's Reservation. CRIT would like to
    propose some amendments to this provision to avoid unnecessary delays
    in implementing the new law. Before addressing these amendments, it may
    be helpful to summarize CRIT's proposal and to provide some background
    information.
    II. Summary of CRIT's Proposal
        Federal law strongly encourages Indian tribes to develop their
    respective energy resources. The Energy Policy Act of 2005 (``2005
    Energy Act'') provides the regulatory and policy framework for tribal
    energy self-determination. To date, however, Congress has not
    appropriated the necessary resources for Indian tribes to realize this
    new law's intended benefits. For example, Title V of the 2005 Energy
    Act authorizes Tribes to create Tribal Energy Resource Agreements
    (``TERA''). But developing and obtaining Federal approval for a TERA is
    likely to cost hundreds of thousands of dollars. In addition, the 2005
    Energy Act requires an Indian tribe to demonstrate the institutional
    capacity to implement a TERA before the Secretary can approve the TERA.
        CRIT has identified an appropriate funding source to establish the
    capacity CRIT needs to implement the 2005 Energy Act. Under Federal
    law, the revenue derived from operating the BIA's power system is held
    in a special account under 25 U.S.C. Sec. 385c. This revenue may only
    be expended for the project where it was generated. The law already
    authorizes the Bureau of Indian Affairs (``BIA'') to expend these power
    proceeds and the related investment income on a ``revolving fund''
    basis for the BIA's power system at CRIT. CRIT seeks legislation
    providing that the Secretary of Interior may disburse some of these
    proceeds directly to CRIT for the purpose of developing CRIT's
    institutional, managerial, and technical capacity envisioned by the
    2005 Energy Act.
    III. Background
        The BIA's management of the funds collected from the BIA power
    system at CRIT (and on other Indian irrigation and power projects) is
    dictated by laws enacted in 1946, 1951, and 1983.
        In 1946 Congress granted ``permanent appropriations'' status to
    allow ongoing disbursements of Indian electrical power accounts
    proceeds on a revolving fund basis ``in connection with the respective
    projects from which such revenues are derived,'' for the following four
    purposes: (1) payment of the expenses of operating and maintaining the
    power system; (2) creation and maintenance of reserve funds to be
    available for making repairs and replacements to the power system; (3)
    amortization of power system construction costs; and (4) payment of
    other expenses and obligations chargeable to power revenues to the
    extent required or permitted by law. The BIA has indicated, and CRIT
    agrees, that the last two purposes are not applicable to the CRIT power
    system.
        The Fiscal Year 1952 Appropriations Act further clarified the BIA's
    authority to expend revenue from these special power accounts, such as
    CRIT's.
            There is hereby appropriated...the amount of power revenues
            covered into the Treasury during the current and each
            succeeding year to the credit of each of the [Indian] power
            projects...to remain available until expended for the purposes
            authorized by [the 1946 Act]...in connection with the
            respective projects from which such revenues are derived.
        The BIA's authority to expend these Indian power revenues for the
    four authorized purposes is not dependent on annual appropriations
    legislation. Nevertheless, Congress may authorize the use of these
    funds for other purposes, at least in instances where the relevant
    tribal beneficiary grants its consent. In response to a critical need
    for irrigation water on an Indian irrigation project in Arizona,
    Congress authorized the BIA to use the funds held in a power account to
    purchase irrigation water. 1 There is also precedent for
    making these funds directly available to the respective tribal
    beneficiary. The legislation that conveyed the BIA's irrigation project
    to the Salt River Pima-Maricopa Indian Community (``Community''),
    included a provision allowing the Community to collect and disburse the
    fees collected pursuant to the 1946 Act. 2
    ---------------------------------------------------------------------------
        \1\ Public Law 101-301, section 13 (1990).
        \2\ Public Law 106-568, section 102(a) (2001).
    ---------------------------------------------------------------------------
        The Fiscal Year 1984 Interior Appropriations Act, Public Law 98-146
    (``1984 Appropriations Act''), provides for the BIA to invest Indian
    power accounts and to apply the investment proceeds for use in
    connection with the project where the funds were collected. In
    particular, this law provides for the use of these interest accruals to
    cover operation and maintenance expenses on the power system where the
    funds were collected. CRIT believes that is also appropriate to make
    these investment proceeds immediately available to allow CRIT to
    address its energy development opportunities.
        Several years ago CRIT insisted that the BIA evaluate and update
    its electrical rate structure to ensure that the project would generate
    a sufficient annual surplus to capitalize the power system's critical
    infrastructure needs. The BIA reports that the current balance of the
    power fund is approximately $11 million. As a result of CRIT's effort,
    the fund's annual growth is approximately $1.5 million. Based on the
    information available to CRIT, this appears to constitute an
    appropriate level of growth, even taking into account the direct
    disbursement to CRIT. In fact, after factoring in the investment
    proceeds that accrue to this fund pursuant to the 1984 Appropriations
    Act, it is clear that an annual disbursement to CRIT of $350,000 is
    appropriate. CRIT urges the Committee to amend H.R. 5680 to authorize
    the immediate disbursement of this amount. In CRIT's view, the best way
    to ``invest'' the power fund is to ensure that CRIT has the technical
    and managerial expertise to help develop and use its significant energy
    resources. In addition, there is no reason to limit CRIT's access to
    this fund to this annual disbursement. There are other policies and
    programs established by the 2005 Energy Act that might also be funded
    from the power fund. CRIT encourages the Committee to amend Section 2
    to allow greater flexibility to direct the funds proceeds for purposes
    that are otherwise authorized by the 2005 Energy Act.
        CRIT has significant, but unrealized potential for energy
    development. CRIT has a sizable amount of undeveloped land in both
    Arizona and California, and--perhaps most important--our Reservation is
    strategically located at the cross-road of several major interstate
    energy transmission corridors for both electricity and natural gas and
    in a high solar radiation belt. (Solar energy production on our
    Reservation is without question a year-round proposition.) These major
    resources invite major CRIT electric energy developments, including
    renewable solar and other forms of renewable electricity generation, as
    well as more conventional thermal and pumped storage installations.
    Opportunities also exist for alternate fuels, namely biofuel and
    compressed natural gas production. Moreover, CRIT and its members can
    save money and energy by learning and adopting proven energy efficiency
    practices. The only thing missing is the funding that CRIT needs to
    develop a TERA and to establish the administrative and regulatory
    structure that Congress envisioned when it passed the 2005 Energy Act.
    Enacting Section 2 of H.R. 5680 is an essential step in making this
    shared Federal-Tribal vision of an energy future a reality.
        With a few changes to Section 2 of H.R. 5680, CRIT is ready to hit
    the ground running and serve as a flagship effort to implement the 2005
    Energy Act. CRIT is hopeful that its effort to implement the 2005
    Energy Act and achieve energy self-determination will provide other
    Indian tribes will valuable insights and ideas for use on their
    reservations.
        Once again we would like to thank Chairman Rahall for holding this
    hearing and Congressman Grijalva for his leadership in introducing this
    legislation.
                                     ______

        The Chairman. Thank you.
        Mr. Day?
        Mr. Day. Good morning, Mr. Chair and Committee.
        The Chairman. Excuse me. Excuse me just a second. Let me
    introduce our colleague and a former Member of our committee,
    The Honorable George Radanovich from California.
        Mr. Radanovich. Thank you, Mr. Chairman. Mr. Chairman,
    thank you so much for the time.
        I just wanted to welcome my constituent, Chairman Kevin
    Day, who is Chairman of the Tuolumne Me-Wuk Tribe in Sonora,
    California, here to speak on H.R. 3490, a land transfer bill in
    the area. It is well put together. It is for good purposes.
        I want to welcome you, Kevin, to Washington and look
    forward to your testimony.
        Again, thank you very much, Mr. Chairman, for the
    opportunity.
        The Chairman. Thank you, George.
        Chairman Day, you may proceed.

    STATEMENT OF THE HONORABLE KEVIN DAY, CHAIRMAN, TUOLUMNE ME-WUK
                                 TRIBE

        Mr. Day. Thank you. Again, good morning to the Chairman and
    the Committee. My name is Kevin Day. I am the Chairman of the
    Tuolumne Band of Me-Wuk Indians. I want to thank you for
    holding this hearing.
        They wrote me this big, old speech thing here, but I am
    just going to spit out what is good here.
        The Chairman. That sounds great.
        Mr. Day. I couldn't remember it anyway. I will give you a
    little background of our tribe. We are a small tribe in central
    California about an hour north of Yosemite. We have
    approximately 400 members. One hundred and fifty of those
    members reside on the reservation, and that is the importance
    of this bill--more housing for our tribal members.
        I think if I were to invite you out to our reservation to
    see our situation, you would understand the need for more
    housing on our reservation. Right now, we have approximately 64
    homes on the reservation, and it is just not adequate enough.
    We have people standing in line trying to move back home, my
    family included.
        I think this piece of legislation is pretty
    straightforward. It basically transfers the BLM land into BIA,
    which would in turn hold it in trust for our tribe to do the
    things we need to do.
        I will talk a little bit about the three parcels that mean
    a lot to the tribe. The first piece is the small piece, Parcel
    No. 1. It is approximately a half acre. That is our burial
    ground for our tribal members. Right now, it is really hard to
    maintain those properties when BLM has basically control over
    that. We would just like to have the opportunity to maintain
    that properly so we can have our people rest there.
        The second piece is approximately 15 acres. There is a need
    for emergency services buildings on our reservation, where now
    we don't have any room. What we would propose there is our
    tribal security and our fire department would be housed there,
    along with other tribal infrastructures. The biggest concern is
    a place to put our cultural center.
        Then our third piece is about 50 acres, where we propose to
    do more housing for the tribe. We have 350 acres in trust now,
    which isn't a lot, but most of it is not buildable, just based
    on the terrain in our area.
        It is just a huge need for us to get this done. Like I said
    before, I appreciate you hearing us here, and I appreciate Mr.
    Radanovich for introducing this bill. He has been to our area,
    and he understands the need there.
        I want to make one thing clear. There is absolutely no
    gaming attached to this at all. We have a small casino on our
    reservation, and it provides us a sufficient amount of revenue
    to run our programs we have there. We have a compact with the
    state, and we will honor that compact to the utmost.
        If there is any other information you need, and I am trying
    to make this short because I don't like to do this very much.
        The Chairman. You are doing very well.
        Mr. Day. But if there is any other information you need or
    any questions, we will make sure we get them back to you. Thank
    you.
        [The prepared statement of Mr. Day follows:]

                   Statement of Kevin Day, Tribal Chairman,
                 Tuolumne Band of Me-Wuk Indians, on H.R. 3490

        Good Morning Mr. Chairman:
        My name is Kevin Day and I am the Chairman of the Tuolumne Band of
    Me-Wuk Indians of the Tuolumne Rancheria. Thank you for holding this
    hearing on H.R. 3490.
        I'd like to start by giving you some background; the Tuolumne Band
    of Me-Wuk Indians is a small federally recognized California Tribe with
    an approximate membership of around 400 people. Our modern tribal
    government was organized under the Indian Reorganization Act in January
    of 1936. As you can see on the California State map (attached as
    Exhibit A) our small reservation is located in the western foothills of
    the Sierra Nevada, approximately one hour north of Yosemite National
    Park and two hours east of Sacramento. We operate a successful casino
    under a compact with the State of California, a new and very successful
    health clinic that serves both, native and non-native customers, a
    native plant nursery business, and numerous governmental service
    programs.
        While we are proud of our success, our current tribal land base has
    presented us with some serious problems that we need your help to
    overcome. Presently, only 150 of our members are actually able to
    reside on our tribal lands, because all of our existing trust land is
    currently used for administrative offices or housing, or it is not well
    suited for new construction. In fact, a study of our unused lands has
    found that their rocky and hilly terrain is best suited for the grazing
    of livestock.
        Lack of available housing for tribal members is one of our most
    serious problems. Today, we have approximately 64 on-reservation homes,
    which are fully occupied. Many of these homes are seriously
    overcrowded, and we are constantly finding ourselves addressing health
    and safety issues within them. Many of our off-reservation members wish
    to return to the reservation, but our lack of housing sites makes those
    moves impossible. To make matters worse, many of our children, who were
    raised on the reservation, are being forced to leave when they reach
    adulthood in order to find their first home. That is why the early
    passage of H.R. 3490 is so important to us.
        H.R. 3490 is a very straightforward piece of legislation. It
    transfers three small parcels of surplus land from the Bureau of Land
    Management (BLM) to the Bureau of Indian Affairs (BIA) to be held in
    trust for the benefit of our Tribe. It also extends the boundaries of
    our reservation to encompass those new BLM lands as well as the other
    lands our Band has acquired in recent years. This reservation boundary
    extension is very important to us because many federal programs,
    including some Indian housing programs, draw a clear distinction
    between on and off-reservation assistance. While the Secretary of
    Interior has the legal authority to extend the boundaries of most
    existing reservations, he lacks that authority in our case because our
    reservation, like many in California, was established by Executive
    Order. Thus, we need your help to accomplish this simple goal.
        If you will turn now to the map which is attached to my testimony
    and labeled as Exhibit B, I would like to describe the parcels we are
    requesting to transfer. This map has parcels that are color coded in
    yellow, blue and green. The light and dark Yellow parcels are lands
    which are currently held in trust for the Tuolumne Band. The star in
    the light yellow parcel is our tribal headquarters and the star in the
    dark yellow parcel shows you where our tribal casino is located. This
    casino is operated pursuant to an existing compact with the State of
    California and in accordance with an existing Memorandum of
    Understanding with Tuolumne County. The Blue parcels are the BLM lands
    we are seeking to acquire, and the green parcels are lands which the
    Tribe currently owns in fee simple. Those lands are pending tribal
    trust acquisition under the normal fee-to-trust process.
        All of the blue BLM parcels have been listed as ``potentially
    available for disposal'' on recent BLM land reports. The first parcel,
    identified as # 1, is located less than 1/2 mile from our existing
    tribal trust lands. That parcel contains a historic Tuolumne Me-Wuk
    cemetery. Because of the site's cultural and religious significance,
    the BLM has, for all intended purposes, simply allowed the Tribe's use
    and maintenance of the parcel for many years. This cemetery is still in
    use today. In fact, one of our Tribal Members was buried there less
    than three years ago. We have always sought to acquire this parcel in
    trust because of its deep cultural significance to our people, but our
    efforts have become even more desperate since the BLM has listed it as
    ``potentially available for disposal.'' Simply put, we cannot lose
    control of the graves of our people and of our ancestors.
        The BLM parcel identified as # 2 is a small site of around 15-16
    acres. As you can see on that map, this site is contiguous to lands
    already held in trust and in fee simple by the Band This is a vacant
    parcel which was originally set aside by BLM, in accordance with the
    Federal Recreation and Public Purpose Act, for the establishment of an
    inter-tribal health facility and a tribal cultural center. Due to
    unforeseen circumstances, the intertribal health facility was never
    developed and the Tribe is no longer apart of the intertribal health
    consortium. We have located our health facility on other tribal fee
    land; however, we have notified BLM that we are still pursuing the use
    of this land for our cultural facility. Our goal is to use this parcel
    for a tribal fire and emergency center, a tribal cultural center and
    perhaps some tribal government buildings, none of which are related to
    gaming in any way.
        The third BLM parcel, identified as # 3, is a slightly larger site
    of around 50 acres. Like parcel #2, it is vacant and it is also
    contiguous to our existing tribal land holdings. This parcel has been
    totally unused by the BLM for many years and our goal is to put it to
    use for tribal housing and tribal infrastructure buildings. Like I
    noted above, we cannot bring our people home to their own tribal lands
    unless we can provide them with a place to live.
        The parcels identified in green are lands which the Tribe owns in
    fee simple. All of these parcels are currently awaiting a final
    transfer into trust. The Tribe submitted a standard 151 fee-to-trust
    application for these parcels and received the Secretary's approval of
    that application on January 12, 2007. Unfortunately, that transfer of
    title has been held up by a frivolous appeal filed by a contiguous
    landowner who is seeking leverage to force the Tribe to buy their
    property at an inflated price. The BIA and the Tribe are both fighting
    that appeal vigorously and we have every reason to believe that the
    Interior Board of Indian Appeals (IBIA) will simply dismiss the case
    and order the land taken into trust as soon as it gets the time to read
    the case files. The IBIA is seriously understaffed and it has taken an
    average of two to four years for it to issue a final decision on any
    appeal brought before it, regardless of the merits. Anything that you
    can do to help speed that process along in our case would be greatly
    appreciated.
        With the exception of a small home-site of around 3 acres, which is
    surrounded by BLM Parcel #2, and which we are in friendly negotiations
    to acquire from its current non-Indian owner, every parcel of land
    encompassed within the new reservation boundaries drawn by H.R. 3490 is
    owned by the Tuolumne Band, either in trust or in fee. We are located
    in a Public Law 83-280 state, so the re-designation of our reservation
    boundaries will not alter the criminal jurisdiction over these parcels.
    Additionally, the fee properties at issue were already zoned
    residential when we acquired the title, and we have maintained that
    zoning under our tribal laws and started to prepare our housing
    development plans. The BIA has conducted a full environmental review
    under NEPA for the fee to trust acquisition, including our proposed
    uses for the parcels.
        Finally, the Tribe and Tuolumne County have developed and executed
    a Memorandum of Understanding (MOU) which sets forth protocols for all
    interaction between the County and the Tribe. That Agreement, which was
    executed on January 16, 2001, has allowed us to maintain a good faith
    working relationship with our local governments. The MOU sets forth a
    process for the County and the Tribe to follow concerning any impacts
    that the County may experience when lands are taken into trust for the
    benefit of the Tribe. Our fee to trust application addresses potential
    tax impacts the County may experience. Thus, our future trust
    acquisition will have nothing but a positive impact on the County's tax
    base. We therefore believe that all of our local jurisdictional issues
    have already been resolved. In fact, Tuolumne County has signed written
    statements of support for the transfer of the BLM lands to the Tribe
    and for the Tribe's fee to trust application of the parcels codes in
    green. Those letters are attached to this testimony as Exhibits C.
    Finally, we have been working with our local Tuolumne Fire Protection
    District and they have also supported our fee to trust application by
    the letter found at Exhibit D.
        In closing, I would like to make it very clear that this bill has
    nothing to do with gaming. Under Section 3 (a) the bill makes it clear
    that the BLM lands we are seeking to transfer shall be ``held in trust
    by the United States for the benefit of the Tribe for non-gaming
    purposes''. Additionally, as I just noted, the fee parcels being added
    to the reservation are already zoned residential and our housing and
    infrastructure development plans are already underway.
        Mr. Chairman, I hope that I have provided you with all of the
    information that you require to report this bill to the House floor in
    the immediate future. I will be happy to answer any questions that you
    may have or provide you with any additional information that you need.
    Again, thank you for taking the time to entertain this very important
    bill for the Tuolumne Band of Me-Wuk Indians.

    EXHIBIT A
    [GRAPHIC] [TIFF OMITTED] T1818.001

    EXHIBIT B
    [GRAPHIC] [TIFF OMITTED] T1818.002

    EXHIBIT C
    [GRAPHIC] [TIFF OMITTED] T1818.003

    [GRAPHIC] [TIFF OMITTED] T1818.004

    EXHIBIT D
    [GRAPHIC] [TIFF OMITTED] T1818.005

                                     ______

        The Chairman. Thank you, Chairman Day.
        Chairwoman Fidelia?

     STATEMENT OF THE HONORABLE FIDELIA ANDY, CHAIRWOMAN, COLUMBIA
                   RIVER INTER-TRIBAL FISH COMMISSION

        Ms. Andy. Good morning. Chairman Rahall, thank you for this
    opportunity to testify. I also want to thank Congressman
    Grijalva for sponsoring this bill, which includes a much needed
    amendment of the Columbia River Treaty fishing access sites.
        My name is Fidelia Andy. I am an elected leader of the
    Yakama Nation and also chair of the Columbia River Inter-Tribal
    Fish Commission, which we call CRITFC for short. CRITFC
    consists of my tribe and the Warm Springs, Nez Perce and
    Umatilla tribes. Jaime Pinkham from the CRITFC staff is also
    here to assist in answering any questions.
        We need to recall a history of promises and setbacks to
    understand the significance of our technical amendment. Fish,
    especially salmon, is important to our tribes. In 1855, our
    treaties committed the U.S. to assure our right to take fish in
    perpetuity across our ancestral homelands, as well as usual and
    accustomed places.
        Before the settlers arrived, a tribal fishery thrived on
    the Columbia River. You could find villages and camping sites,
    structures to care for our fish and equipment, spots to launch
    our boats and platforms for fishing. In the 1880s, non-Indian
    encroachment began restricting access to our usual and
    accustomed fishing grounds.
        In the 1930s, traditional fishing sites were flooded after
    the Corps of Engineers built the first of four dams. In 1939,
    the U.S. agreed to provide sites in lieu of those lost and
    built facilities to support our fisheries. The result was only
    five sites on 40 acres.
        More dams inundated more fishing grounds. In 1988, Congress
    authorized new sites and facilities through Public Law 100-581,
    the Act required to transfer the completed sites from the Corps
    to the Bureau of Indian Affairs. Today 29 sites are scattered
    along roughly 130 river miles of development with boat launches
    and docks, fish cleaning stations, sheds for curing fish and
    camping facilities.
        In 1995, a memorandum of understanding facilitated the
    transfer from the Corps to the BIA, both the sites and funding
    for operation and maintenance, O&M. BIA was expected to invest
    the funds to earn extra income to support O&M for 50 years, to
    2045. BIA also agreed to contribute $250,000 per year for the
    first eight years of the MOU.
        Unfortunately, the BIA didn't contribute their share and,
    although they received the O&M funds from the Corps, they
    lacked authority to invest them. Instead, the BIA spent almost
    $2 million of the principal from 1996 to 2003, thereby reducing
    the term of the fund to less than 50 years. In 2003, under a
    Self-Determination Act agreement, BIA transferred the remaining
    O&M balances to CRITFC so that we could begin earning interest.
    We also assumed O&M responsibility for the sites.
        However, the Self-Determination Act restricts investment to
    Federally backed instruments with typically low yields of two
    to six percent. This restriction, on top of the BIA's lack of
    contribution per the MOU, coupled with their depleting
    principal rather than investing, will exhaust the O&M account
    before 2025, leaving no funding in the final 20 years.
        While the investment of the principal is restricted, the
    subsequent interest earnings are not. In the 30 months ending
    last December, the restricted principal yielded 4.5. However,
    our investment of the unrestricted interest account earned over
    13 percent. CRITFC worked closely with a reputable fund manager
    on prudent investment standards for both the principal and
    interest accounts.
        On average, we spend about $450,000 per year for O&M. Using
    current estimates of the investment restriction remaining
    unchanged, an additional $4.6 million in principal is required
    to receive O&M through 2045. However, if we lift the
    restrictions to afford returns close to eight percent, we
    estimate $2.3 million of new principal is needed, an amount
    that would even satisfy BIA's commitment in their MOU.
        Last year we asked the Interior Department to find a
    solution to the restriction imposed by the Self-Determination
    Act. They were unable to find a fix. Therefore, without
    objection, the staff at the time began working with the House
    and Senate on a technical amendment to Public Law 100-581. This
    is the amendment found in Section 9 of H.R. 5680 exclusively
    for the Columbia River fishing sites.
        Rest assured that we are sophisticated and capable of
    making prudent investments. Section 9 of H.R. 5680 can extend
    the current O&M funds by eight to nine years. It began to
    overcome past shortcomings by enabling us to achieve better
    yields than we are currently allowed. To complement this
    amendment, we continue to seek the funds pledged by BIA.
        We wish this amendment wasn't necessary, but now it is. We
    are meeting our responsibilities, but our Federal partner
    struggles to meet. They are casting a short-term fate for the
    O&M funds. We hope our Federal trustee understands the need for
    this amendment by offering unqualified support. We also expect
    them to satisfy their commitment in the MOU.
        This amendment protects the Federal investment established
    by the construction of the treaty fishing sites. It is also
    crucial to the tribal commercial, ceremonial and subsistence
    fisheries, and it honors overdue commitments when the dams were
    built and our treaties signed.
        Thank you for this opportunity to testify. I would be happy
    to answer any questions. Thank you.
        [The prepared statement of Ms. Andy follows:]

             Statement of The Honorable Fidelia Andy, Chairwoman,
           Columbia River Inter-Tribal Fish Commission, on H.R. 5680

        Chairman Rahall, on behalf of the Columbia River Inter-Tribal Fish
    Commission, thank you for inviting me to testify on H.R. 5680. I also
    want to thank Congressman Grijalva for sponsoring this legislation
    which includes a much needed technical amendment under Section 9 for
    the Columbia River Treaty Fishing Access Sites.
        I am Fidelia Andy, Chairwoman of the Columbia River Inter-Tribal
    Fish Commission and an elected leader of the Confederated Tribes and
    Bands of the Yakama Nation. I am a descendent of the signers of the
    1855 treaty between the Yakamas and the United States Government. I
    fished the Columbia River and I clearly understand the impact that the
    construction of the dams has caused to the tribal way of life.
        The Columbia River Inter-Tribal Fish Commission (CRITFC) was formed
    in 1977 by resolutions from the four Columbia River treaty tribes:
    Confederated Tribes of the Umatilla Indian Reservation, Confederated
    Tribes of the Warm Springs Reservation of Oregon, Confederated Tribes
    and Bands of the Yakama Nation, and Nez Perce Tribe. CRITFC's mission
    is to ensure a unified voice in the overall management of the fishery
    resource and to assist in protecting reserved treaty rights through the
    exercise of the inherent sovereign powers of the tribes. CRITFC
    provides coordination and technical assistance to the tribes in
    regional, national and international efforts to ensure that outstanding
    treaty fishing rights issues are resolved in a way that guarantees the
    continuation and restoration of our tribal fisheries into perpetuity.
        To understand the significance of our technical amendment for the
    Columbia River Treaty Fishing Access Sites, we need to take into
    account our history that stretches beyond 10,000 years ago to time
    immemorial. And we need to review the history over the last two
    generations that included more promises yet repeated delays and
    setbacks resulting from federal inaction.
        The combined ancestral homelands of our four tribes cover roughly
    one-third of the entire Columbia River Basin in Washington, Oregon and
    Idaho. Salmon has always been a unifying figure providing both physical
    and cultural sustenance. Collectively, we gathered at places like
    Celilo Falls to share in the harvest, forging alliances that exist
    today. The importance of fish, especially salmon, to our tribes cannot
    be overstated. In 1855 when our four sovereign tribes and the United
    States collaborated and negotiated treaties, our tribal leaders
    explicitly reserved--and the U.S. agreed to assure--our right to fish
    in perpetuity within our ancestral homelands as well as ``at all usual
    and accustomed places''. We kept our word by ceding about 40 million
    acres of our homelands to the U.S. and the U.S. pledged to honor our
    ancestral rights.
        In 1905 in the famous case of U.S. v. Winans, the U.S. Supreme
    Court stated that fishing was ``not much less necessary to the
    existence of the Indians than the atmosphere they breathed.'' This
    statement, from the highest court in the land over a century ago,
    symbolizes salmon as an integral part of our cultural, economic and
    spiritual well-being.
        Before the arrival of non-Indian settlers a tribal fishery thrived
    on the Columbia River. By the late 1880's, non-Indian encroachment
    blocked access to many of our usual and accustomed fishing grounds. In
    the late 1880s, Special Indian Agent George Gordon investigated the
    Columbia River tribal fisheries and found that Indian fishers were
    being excluded from many of their traditional fishing grounds. Agent
    Gordon submitted his findings and recommended that the U.S. secure
    approximately 2,300 acres along the river for use by tribal fishers.
    Although the government never acted on his recommendations, the U.S.
    did file several lawsuits seeking to protect the tribes' right to take
    fish at usual and accustomed fishing grounds (e.g., U.S. v. Taylor,
    U.S. v. Winans, U.S. v. Seufert Brothers, and U.S. v. Brookfield
    Fisheries). These lawsuits firmly established as a matter of law the
    tribes' treaty-protected right of access to usual and accustomed
    fishing grounds.
        During the 1930's, the Army Corps of Engineers (COE), responding to
    congressionally mandated studies, proposed that a series of dams be
    built along the Columbia River. The Bonneville Dam was the first to be
    built inundating approximately 37 tribal fishing sites. In 1939, a
    settlement agreement between the tribes and the U.S. was made to
    furnish sites in lieu of those lost. The agreement provided for the War
    Department to acquire approximately four hundred acres of lands at six
    sites along the Columbia River and install ancillary fishing facilities
    to be used by the treaty tribes. The agreement was approved by the
    Secretary of War in 1940 and by Congress in 1945 (Public Law 79-14).
    However, it took the COE nearly twenty years to acquire five sites,
    totaling only slightly over 40 acres. These sites are commonly referred
    to as ``in lieu'' sites.
        As more dams were built more tribal fishing grounds disappeared. In
    1973, in a settlement order entered by the U.S. District Court for
    Oregon in CTUIR v. Calloway, the Secretary of the Army and the
    Secretary of the Interior agreed to propose legislation to provide
    acquisition and improvement of additional sites and the upgrading of
    all sites to National Park Service standards. Legislation was forwarded
    to Congress in 1974, but no action was taken.
        During the late 1970's and 1980's tensions continued to grow.
    Increased fish runs in mid-1980 increased the use and pressure on the
    existing in lieu sites resulting in the need for improvements and
    additional fishing access sites. Conflicts also grew with increased
    non-Indian use of the treaty sites for recreational activities along
    the Columbia River. From 1982--1986, legislation to establish a
    Columbia Gorge National Scenic Area was considered by Congress. During
    consideration of this legislation, the tribes once again brought
    attention to the fact that the federal government still owed
    significant acreage for fishing sites per the 1939 agreement. Although
    Congress did not address the in lieu site issue in the passage of the
    Gorge Act, they indicated they would consider providing additional
    fishing access sites in the future.
        In 1987 and 1988, at the request of the Senate Select Committee on
    Indian Affairs, the tribes identified a number of locations that could
    be suitable for additional sites. During hearings in 1988,
    representatives from the COE testified that they required new
    legislation before they could provide additional sites. Congress
    responded with P.L. 100-581 (Title IV, Columbia River Treaty Fishing
    Access Sites) in November 1988. This legislation authorized new sites
    and facilities and required an interagency transfer of the properties
    from the COE to the Interior Department ``for the purpose of
    maintaining the sites.'' This included sites behind Bonneville, The
    Dalles and John Day Dams on the Columbia River in Oregon and
    Washington. As sites were completed they were transferred to the Bureau
    of Indian Affairs (BIA) within the Interior Department. The Act also
    authorized the rehabilitation of the original ``in lieu sites''
    constructed under the P.L. 79-14. To date 29 sites have been completed
    and one site is undergoing planning leaving one, possibly two sites
    remaining.
        Subsequent amendments have been enacted to modify the legislation.
    These amendments provide the COE with flexibility on technical boundary
    adjustments, increases of authorization for appropriations, authorizing
    the transfer of funding for operations and maintenance to the BIA, and
    authorization to make improvements at Celilo Village.
        In 1995, the COE and BIA agreed to a Memorandum of Understanding
    (MOU) to effectuate the transfer of facilities and lands and to provide
    operations and maintenance (O&M) funding. The COE agreed to provide a
    lump sum of monies for each set of sites and then transfer those monies
    to the BIA for O&M when the sites were completed. The amount of O&M
    needed was calculated under a capitalized cost basis relying on a 7.75%
    discount rate with the assumption that the BIA would invest the funds
    in an interest bearing account to create a steady O&M funding stream
    for 50 years (to 2045). In the MOU the BIA also agreed to provide at
    least $250,000 per year for the first eight years beginning in 1996.
        Unfortunately, the BIA never contributed their share and they
    lacked authority to invest the O&M funds provided by the COE. Instead,
    BIA spent about $2 million of the principal from 1996 to 2003 to cover
    O&M thereby reducing the term of the fund to less than 50 years. The
    tribes repeatedly indicated their desire to get the COE-provided funds
    into an interest bearing account.
        In a July 1999 letter from the COE District Engineer to the
    Chairman of Confederated Tribes of the Umatilla Indian Reservation, the
    COE even committed to increasing their contribution under the 1995 MOU
    with the BIA by $1.2 million if BIA satisfied three conditions. Those
    conditions were: ``First, the funds need to be invested in an interest
    bearing account. Second, the BIA needs to continue to provide their
    contributions under the agreement. Third, there needs to be strong
    technical justification for the increase.'' Unfortunately, this was
    another lost opportunity since BIA never met any of these conditions
    which were quite simply the BIA's commitments in the first place. The
    additional money from the COE has never been provided.
        Later, it was determined that the best way to accomplish investment
    of the funds was for the tribes to take over the funds. In 2003, under
    a Self-Determination Act agreement, BIA transferred the O&M balance
    (approximately $5.5 million) to CRITFC so the funds could begin earning
    interest. CRITFC also assumed O&M responsibilities for the sites on
    January 1, 2004.
        However, under 25 USC Sec. 450e-3 of the Self-Determination Act,
    investments are restricted to low earning federally-backed instruments
    that typically yield 2 to 6%. With the BIA's lack of contribution per
    the MOU and the fact they spent principal instead of investing the
    funds, these investment restrictions add to the inadequacy of O&M
    funding needs. Under these restrictions with the current fund balance
    we estimate that the O&M account will be depleted before 2025 leaving
    no funding over the final 20 years.
        While the investment of principal is restricted, the subsequent
    interest earnings are not. Over the 30 months ending December 2007, the
    restricted principal account yielded a 4.51% return compared to
    CRITFC's investment of the unrestricted interest account which earned
    13.16%. CRITFC works closely with a reputable fund manager on prudent
    investment standards for both the principal and interest accounts.
    CRITFC also meets at least quarterly with the fund manager and
    presentations are provided by the manager to the CRITFC Commission. In
    accordance with the Self-Determination Act agreement, CRITFC prepared
    and submitted to BIA, an investment policy for both the restricted
    account and the unrestricted interest account.
        Starting in early 2007 CRITFC met with the Interior Department to
    find a solution to the investments restrictions. Interior staff was
    unable to find a solution to the restrictions imposed under the Self-
    Determination Act. Therefore, without objection by the Interior staff
    at the time, CRITFC began working with the House and Senate on a
    technical amendment to P.L. 100-581 to provide an exemption to the
    restriction specifically for the in lieu and treaty fishing access
    sites on the Columbia River.
        The four-year average for O&M is approximately $449,900 per year
    for the 29 existing sites. If the investment restrictions are left in
    place, an additional $4.6 million of principal is needed to revive O&M
    to cover the 50 year time frame. However, if we are able to lift the
    restrictions to afford returns closer to a historical market rate of
    8%, we estimate that we would need an additional $2.3 million in
    FY2009. This amount would also satisfy BIA's commitment in the MOU. If
    funding is delayed until FY2010 we estimate $2.5 million will be
    needed.
        We support Section 9 of H.R. 5680. This technical amendment is
    narrow and applies only to the Columbia River Treaty Fishing Access
    Sites. The amendment would have a significant impact by extending the
    current O&M fund by another 8-9 years and help us begin to overcome
    past disruptions with the O&M funds by enabling CRITFC to apply prudent
    investment standards to achieve higher yields than is now permitted. To
    complement this effort we will continue to seek funding to fulfill the
    BIA's commitment under the 1995 MOU with the COE.
        On January 16, 2008, the Columbia River Gorge Commission wrote a
    letter supporting our efforts to secure an amendment to P.L. 100-581 to
    provide us ``greater investment flexibility'' for these sites. The
    Gorge Commission was established in 1987 to develop and implement
    policies and programs that protect and enhance the scenic, natural,
    cultural and recreational resources of the Gorge. The Gorge Commission
    noted that these fishing sites are part of the Columbia River Gorge's
    ``vital cultural, historical and legal infrastructure.'' The Gorge
    Commission further supports funding through the U.S. House and Senate
    to satisfy BIA's funding commitment. The Gorge Commission has 13
    members: three appointed by each of the governors of Oregon and
    Washington, one appointed by each of the six Gorge counties, and a non-
    voting representative from the U.S. Forest Service.
        CRITFC is prudent in spending funds for routine O&M of the sites in
    an attempt to stretch the funding out as long as possible, but this
    carries a long term consequence. First, being frugal does not allow
    maintenance of the sites to conform to the required National Park
    Service standards. Secondly, keeping maintenance costs low means the
    sites and facilities will deteriorate faster requiring O&M funds to be
    redirected towards major capital expenditures.
        CRITFC has met our responsibilities. Our federal partner and
    trustee struggled in meeting theirs. The dilemma of the operation and
    maintenance funding for the Columbia River Treaty Fishing Access Sites
    are not the result of the tribal effort. The current fate of the long
    term O&M funding is the result of federal inaction and therefore we
    would hope that our federal trustee would understand the need for this
    amendment and offer their unqualified support. In addition, we would
    hope that they would support the appropriation of funds necessary to
    meet the commitment they made in the 1995 MOU with the Army Corps of
    Engineers.
        It is our hope that this Committee will act favorably on the
    technical amendment as written in H.R. 5680 to lift the investment
    restrictions for the Columbia River Treaty Fishing Access Sites. This
    would protect the federal government's investment in the in lieu and
    treaty fishing sites and also continue to satisfy the long overdue
    commitments made by the U.S. to our tribes over 75 years ago when the
    dams were built and over 150 years ago when our treaties were signed.
        Again, thank you for this opportunity to express our support for
    this legislation.

                  ,--                                   ,

            CRITFC Contact:         Columbia River Inter-Tribal Fish
            Jaime A. Pinkham         Commission
            pinj@critfc.org         729 NE Oregon, Suite 200
            503-238-0667            Portland, OR 97232
            Fax: 503-235-4228       www.critfc.org

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                                     ______

        The Chairman. Thank you.
        Mr. Forsgren?

     STATEMENT OF DENNIS LEE FORSGREN, JR., CONSULTANT, MICCOSUKEE
                      TRIBE OF INDIANS OF FLORIDA

        Mr. Forsgren. Mr. Chairman, my name is D. Lee Forsgren. I
    am here on behalf of the Miccosukee Tribe of Florida.
        I was hoping to be able to take the advice of former
    Chairman Udall about be brief, be sincere and be seated, so
    with that I would ask that my full statement be placed in the
    record.
        The Miccosukee Tribe is testifying in support of H.R. 5680,
    particularly Section 10, which is about a statutory application
    into trust. I would like to thank Mr. Grijalva for his efforts
    on behalf and also would like to thank Representative Meeks for
    his tireless efforts.
        The lands in Section 10 are in the Kendal Lakes area in
    Miami-Dade County. The tribe has been seeking to have these
    lands placed into trust for over five years. We would have
    hoped that the administrative process could have been
    successful during that excruciating long period. Unfortunately,
    it has not.
        Just for your information, these lands are well within the
    traditional ancestral land areas of the tribe in south Florida
    and is a short distance from the existing reservation.
        Like I said, we have been waiting for over five years for
    the application. We have made every effort to clarify all
    actions with the Department, so we have been forced to seek a
    legislative remedy. The tribe does not intend to use these
    lands for any gaming, and we do not intend to change the usage
    of these lands.
        With that, Mr. Chairman, if you have any questions, I would
    be happy to answer them.
        [The prepared statement of Mr. Forsgren follows:]

              Statement of Dennis Lee Forsgren, on Behalf of the
                   Miccosukee Tribe of Florida, on H.R. 5680

        Good morning Mr. Chairman, I am Dennis Lee Forsgren Jr. and I am
    testifying today on behalf of the Miccosukee Tribe of Florida in
    support of H.R. 5680, A bill To amend certain laws relating to Native
    Americans, and for others purposes, introduced by Rep. Grijalva (AZ-7)
    on April 2, 2008.
        The Miccosukee Tribe is especially supportive of Section 10 of H.R.
    5680 which would place certain lands currently owned by the Tribe in
    Miami-Dade County Florida into Trust. We would like to express our
    thanks to Mr. Grijalva for including this provision and to thank
    Representative Kendrick Meeks for his tireless efforts on behalf of
    this provision.
        These lands located in the Kendal Lakes section of Miami-Dade
    County Florida near Miami. The legal description of the parcel that the
    Tribe seeks to put into trust are well within the Tribes traditional
    ancestral area of South Florida. The land is only a few miles from
    existing reservation, and would make a highly rational addition to the
    Tribe's trust lands
        The Miccosukee Tribe of Indians of Florida has been seeking to have
    this land, Miccosukee Golf & Country Club enterprise, placed in trust
    since 2003. Unfortunately, no final action has been taken by the
    Department of the Interior, even though the Tribe long ago clearly
    fulfilled all the requirements in law, and there is no sign that final
    agency action will be taken in the foreseeable future.
        Given the unreasonable period of time that the Bureau of Indian
    Affairs has taken regarding the Tribe's request that the Miccosukee
    Golf & Country Club enterprise lands be taken into Trust, the Committee
    can understand why the Tribe has felt compelled to seek legislative
    relief.
        For the record the Miccosukee Tribe does not intend to use these
    lands for any gaming purpose, and this provision would not permit
    gaming in any event. Also the Tribe does not intend to make any
    substantive change in land use from their existing use as a golf
    course.
        Thank you Mr. Chairman and the other members of this committee for
    your hard work on H.R. 5680 and I would be happy to answer any
    questions that you are the Committee might have regarding Section 10.
                                     ______

        The Chairman. Thank you very much.
        Let me recognize Mr. Radanovich for questions.
        Mr. Radanovich. Mr. Chairman, I thank you again for holding
    this hearing and for allowing my bill to be heard on this.
        Mr. Day, I do have just a couple of brief questions. One
    that I wanted to reiterate is that this land exchange and
    increased land into the reservation comes with the caveat that
    there is no gambling on those lands. Do you want to kind of
    state that again for me, if you would?
        Mr. Day. That is correct. Even if we wanted to, which we
    don't, the market in our area is pretty much absorbed now. We
    don't want to expand anything with our casino. It serves us
    well now.
        Like I said before, it serves all our services and programs
    that we need. This absolutely has nothing to do with gaming.
    This is for housing and some infrastructure.
        Mr. Radanovich. And there was an issue of a survey, I
    think. Do you want to kind of explain that?
        Mr. Day. Yes. What we would like just before we amend this
    bill to exclude the 180 days, we would like a little time to
    work with our local agency.
        We think that we can work with those folks to use a local
    surveyor who is familiar with the parcels. We would like the
    opportunity to talk to those folks first.
        Mr. Radanovich. And you have received no objection to that
    at this point?
        Mr. Day. No, not at all.
        Mr. Radanovich. Yes. And there is some demonstrated local
    support for this as well, isn't there?
        Mr. Day. Oh, yes. Our local county board of supervisors
    support it, our local fire department supports it, surrounding
    neighbors support it. We have no opposition at all.
        Mr. Radanovich. Very good. All right. Again, thank you, Mr.
    Day, for testifying.
        Mr. Day. Thank you.
        Mr. Radanovich. Thank you, Mr. Chairman.
        The Chairman. Thank you.
        Mr. Kildee?
        Mr. Kildee. Thank you very much, Mr. Chairman. Thank you in
    general for the hearing this morning.
        The panel that we have before us right now and the other
    panels that have testified today illustrate that over the last
    32 years that you and I have served here in this Congress--we
    came here together--that the tribes have become more assertive
    of their sovereignty, and I encourage that.
        You have become more aware of that sovereignty, become more
    assertive of that sovereignty, and Congress has become more
    aware of their obligation to recognize and defend that
    sovereignty. Hearings like this illustrate that.
        In the Constitution when they refer to your sovereignty,
    they put it in Article I, which is the legislative body. We are
    the prime ones with the responsibility. We assign certain tasks
    to the Interior Department, but we read here in Article I that
    the Congress shall have the power to regulate commerce with
    foreign nations and among the several states and with the
    Indian tribes.
        There, in one sentence, they talk about the three types of
    sovereignties. Every time you testify, including this panel
    right here today, you illustrate your deep belief in the
    reality of your sovereignty.
        Today, Mr. Chairman, we have seen tribes referring to
    tribes of various size in this country. Size does not determine
    sovereignty. We list three sovereignties--several states,
    foreign nations and the Indian tribes--here in the
    Constitution. Probably one of the smallest nations we recognize
    among the category of foreign nations is going to have its
    sovereign here soon, the Vatican City.
        The Vatican City is 108.7 acres, but its sovereignty is as
    high in that category of foreign nations as is Russia, which is
    6.6 million square miles. So size does not determine your
    sovereignty.
        The Constitution doesn't grant you your sovereignty. The
    Constitution recognizes it because John Marshall in his famous
    decision says you have a retained sovereignty. We didn't give
    it to you. It was retained. It was here before the first
    European settlers came here.
        I think the hearing you have had today, which I really
    appreciate, really illustrates that we here in the Congress,
    our obligation is to respect, protect and defend that
    sovereignty, and I thank you for the hearing, Mr. Chairman.
    Thank you.
        The Chairman. Thank you, Mr. Kildee.
        Mrs. Napolitano?
        Mrs. Napolitano. Thank you, Mr. Chair, and I apologize for
    my lateness. I also had a 10:00 hearing in Transportation.
        I am so happy to see that you are holding a hearing in
    regard to our Native American issues that have so long been
    ignored. In fact, I am holding a water hearing on Indian water
    rights coming up soon because we feel it is very apropos, very
    important.
        As my colleague was indicating, you need to be recognized.
    You have rights in this House and in this Congress, and you
    need to be more assertive in being able to state that you are
    fighting for those rights and the recognition for them.
        One of the questions I would have is--in the Department's
    testimony apparently they did state it in here--I understand it
    is stated that the legislation could divert appropriated funds
    intended for the BIA Colorado River Agency to the tribe. How
    would you like to respond to that?
        And then if you obtain that funding from the Department,
    would the tribe assume some of the BIA's Colorado River Agency
    responsibility? Are they prepared as a tribe to assume those
    responsibilities? I believe that is a question for Ms. Valerie
    Welsh-Tahbo, The Honorable Valerie Welsh.
        Ms. Welsh-Tahbo. Yes. Thank you for the question. The
    Colorado River Indian Tribe is looking at the excess amount.
    What is already acquired off the generation and the funds that
    we have will go to the repairs, but also to include
    congressional oversight.
        When there were repairs that started in 2003, the Bureau
    did not alert the tribes and we were not involved. In fact, we
    saw a crane there and that is what alerted us to one of our
    dams.
        Mrs. Napolitano. Have you asked them why they are not
    allowing you to be part of or advising you what they are doing
    in those areas?
        Ms. Welsh-Tahbo. If I can confer to my counsel, he can
    answer that more directly.
        He is telling me yes, we did ask. In fact, that is where we
    went with the lawsuit and that is how that occurred.
        Mrs. Napolitano. Thank you.
        Ms. Welsh-Tahbo. In the testimony that I gave, we are not
    so much looking at the funds because the excess revenue that we
    draw off of that is what we want oversight over, but it is the
    process. We are not after the funds. It is the process.
        Eventually we want to go into our own utility systems and
    using our own resources and our waterways, our Headgate Dam,
    and go into hydroelectricity.
        Mrs. Napolitano. Hydroelectricity.
        Ms. Welsh-Tahbo. But in order to do that under the 2005
    Energy Act, we need those funds and access to it.
        Mrs. Napolitano. OK. And the BIA said the land being put
    into trust is 229 acres. Will all of that land be used, it
    says, for a golf course? If not, what are the purposes intended
    for that land?
        I am sorry. This is for Mr. Dennis Lee Forsgren.
        Mr. Forsgren. Yes, Congresswoman.
        Mrs. Napolitano. I am sorry.
        Mr. Forsgren. The land currently is a golf course. We plan
    to continue to use it as such.
        Mrs. Napolitano. All of it?
        Mr. Forsgren. Yes. We plan no change in land use.
        Mrs. Napolitano. And not for sale? Not for casinos?
        Mr. Forsgren. Absolutely no gaming. We don't believe the
    law would permit it anyway. We have no intention for casinos or
    gaming.
        Mrs. Napolitano. Thank you. Thank you, Mr. Chair. Those are
    the questions that I did have.
        Again, thank you for coming and testifying before this
    subcommittee, and thank you for holding the subcommittee
    hearing. Thank you.
        The Chairman. Thank you.
        Let me continue with Mr. Forsgren. Many tribes have
    outstanding land into trust applications. Why is this situation
    unique?
        Mr. Forsgren. Mr. Chairman, we believe that, I guess I
    would come back, and I understand we have multiple land into
    trust applications.
        I guess I would say the unreasonable duration of the
    pending application would be the best answer I could give you.
    We have been trying to work with the Department for over five
    years, and we see no progress at all.
        The Chairman. So you have had this pending for five years?
        Mr. Forsgren. Yes. Over five years.
        The Chairman. OK. Could you provide the Committee with a
    map of the lands that are subject to this bill?
        Mr. Forsgren. Yes, sir.
        The Chairman. And also a summary of any environmental
    studies that have been done on these lands?
        Mr. Forsgren. Yes, sir.
        The Chairman. OK. We would appreciate receiving that.
        Chairwoman Andy, let me ask you. In your testimony you
    state that you met with the Interior Department in 2007 to
    discuss solutions to the investment restrictions. Were any
    solutions developed at this meeting?
        Ms. Andy. No.
        The Chairman. None? Zero? I am sorry. I didn't hear you.
        Ms. Andy. No, and that is basically why I am here today.
    There were no solutions.
        The Chairman. OK. To your knowledge, what has the
    Department done to contribute to a solution?
        Ms. Andy. Nothing.
        The Chairman. All right. And aside from this technical
    amendment, do you know of any alternative solutions to solve
    the problem?
        Ms. Andy. Well, yes. If we can invest the way we want to,
    that would bring some of that earnings up; and we can get some
    of that money to last as long as we want to, as I have
    testified to.
        One of the things I would like to make a comment on about
    the BIA is concern that they may have to pay twice. Well, the
    problem here is that they haven't offered their share of funds
    on the MOU. Also, they took on the Corps of Engineers funds and
    spent down principal without investing the money as intended.
        You know, when they didn't do that, we took it on and did
    that for them, and now we want to go to a higher investment
    type and they are saying we can't because they are afraid we
    will lose the money, while in the past I have witnessed BIA
    losing tremendous amounts of money for tribes.
        We are well aware that we can handle this situation in the
    manner that we have handled it when we took it over, so with
    that, Mr. Chair, I would leave it at that.
        The Chairman. OK. I appreciate it.
        Chairman Day, let me ask you about the provision in the
    legislation that provides that non-BLM lands will be subject to
    the same laws as other lands currently held in trust.
        Could you explain why this provision is needed and why the
    lands would not automatically be subject to the same laws if
    they are placed into trust?
        Mr. Day. Can I consult with my attorney here real quick?
        The Chairman. Sure.
        [Pause.]
        Ms. Marks. Mr. Chairman, this is Patty Marks. The intent
    of----
        The Chairman. I am sorry. Would you identify yourself again
    for the record?
        Ms. Marks. Certainly. Sliding in, my name is Patty Marks.
        The intent in drafting the legislation was----
        The Chairman. And you are a legal attorney for?
        Ms. Marks. Legal attorney for Tuolumne Me-Wuk.
        The Chairman. OK.
        Ms. Marks. The intent of drafting the bill was to follow
    something that had been acceptable and used as a precedent by
    this committee, and that was the California Land Transfer Act.
    In fact, there will be no change in jurisdiction here. It is a
    280 state. Criminal jurisdiction will remain the same.
        I don't believe that it is absolutely necessary to include
    that language. I think it was more in a drafting situation of
    following a precedent established by the Committee in the past
    for writing bills of this nature in California.
        The Chairman. OK. Are the lands referenced in Section 3[c]
    being placed into trust pursuant to this legislation?
        Ms. Marks. No, sir. The FETA trust process is on appeal at
    this point at the Interior Board of Indian Appeals.
        We had thought initially about asking the Committee to take
    the lands into trust, but we didn't want to be accused of
    interfering with the rights of the non-Indian people involved
    in that litigation, even though we consider their case to be
    totally frivolous.
        So the tribe owns the land in fee. We will simply extend
    the boundaries around land exclusively owned by the tribe and
    used exclusively by the tribe and let the IBIA process run its
    course.
        The Chairman. OK. Chairman Day indicated that most, but not
    all, of the land affected by this bill will become part of the
    tribe's reservation. Has the tribe informed the individual
    landowners that their land will become a part of the
    reservation because of this legislation?
        Mr. Day. Yes. Actually, the one couple is right in the
    middle of it. They actually go down the highway and clean the
    highway for us. They are really respectful to us and we are
    respectful to them. We have their full support also.
        The Chairman. OK.
        Ms. Marks. We have the support of both non-Indian families,
    and one is actually working toward a purchase agreement with
    the tribe, which will provide this elderly couple with a life
    estate to allow them to live on the property until such time as
    title will pass to the tribe.
        The Chairman. OK. My last question. Will deeming non-Indian
    fee land to be within the boundaries of the reservation provide
    the tribe with an advantage in the ongoing litigation on the
    pending fee to trust application?
        Ms. Marks. No, sir, we do not believe so. It is legally
    arguable right now that the tribe owning those lands and having
    them contiguous to the reservation is already exercising
    governmental authority over the property so, no, there will be
    nothing.
        In fact, if you note in the legislation itself what is
    happening here is there is an easement situation. An easement
    preexisted the tribe's acquisition of the parcel. When the
    Secretary rendered his decision to take the lands into trust,
    the couple involved did not believe that their easement was
    adequately described and protected in the Secretary's FETA
    trust approval decision.
        This legislation actually recognizes that easement in the
    bill itself so, if anything, it will help the plaintiffs in
    that case by giving them a Federal recognition of an existing
    easement.
        In addition to that, you will note on the map here, if I am
    correct, this is the parcel in question. Since the suit was
    filed, the Bureau of Indian Affairs has constructed a permanent
    road running straight onto their property, so we believe that
    the only reason they are extending the appeal is to try to get
    leverage to encourage the tribe to buy their parcel at a highly
    inflated rate, but you can't have a much better reason than a
    public road that runs to your driveway. That is why we are
    convinced that the IBIA will dismiss that case as soon as it
    gets time to read the briefs.
        We can respect their rights this way, and we included their
    easement in this bill to show Congress that we are not
    attempting to tread on anybody's property rights, and the
    relationship will remain positive.
        The Chairman. Thank you.
        Do any other Members wish additional questions?
        Mrs. Napolitano. Good luck.
        The Chairman. Mr. Kildee?
        Mr. Kildee. I appreciate Patty Marks' explanation. It was
    very clear in clarifying to the Committee.
        Just kind of an addition to what I have said before--I have
    no bill to do this, but I think both you at the panel and we up
    here can take comfort in the fact that we know that we could--I
    have no bill for this--abolish the BIA, but the BIA could not
    abolish the Congress.
        [Applause.]
        Mr. Kildee. Thank you, Mr. Chairman.
        The Chairman. Thank you, Mr. Kildee.
        With that, the Chair will thank the panel for their
    patience and testimony before us today. We will continue to
    consult with you. We again thank you, especially for traveling
    the distances that you have to be with us.
        No further business to come before the Committee, the
    Committee stands adjourned.
        [Whereupon, at 12:20 p.m., the Committee was adjourned.]

        [Additional material submitted for the record follows:]

        [A statement submitted for the record by The Honorable Dan
    Boren, a Representative in Congress from the State of Oklahoma,
    on H.R. 5608 follows:]

        Statement submitted for the record by The Honorable Dan Boren,
     a Representative in Congress from the State of Oklahoma, on H.R. 5608

        Mr. Chairman:
        I would like to thank you for holding this hearing today, and
    particularly for the leadership you have shown on the issue of tribal
    consultations.
        In recognition of this unique government-to-government
    relationship, the Federal Government has enacted laws ``in accordance
    with treaties, statutes, Executive Orders, and judicial decisions,
    recognizing the right of Indian tribes to self-government.'' Conducting
    meaningful consultation when enacting policies that have tribal
    implications serves to aid the federal government in fulfilling its
    trust responsibility and respects tribe's inherent sovereign powers
    over their own members and territory.
        Recently, however, I met a number of tribal representatives who
    uniformly expressed great concern over what they felt was a lack of
    consultation in developing policies that affect their tribes. In light
    of these concerns, I feel Congress has a responsibility to look into
    these matters and the guidelines that govern how consultations should
    be conducted, as well as how those discussions come into play when new
    policies and regulations are drafted.
        The second Congressional district, which I represent, encompasses
    jurisdictional areas of 17 federally recognized tribes, all of whom
    have a tremendous impact on their communities. These tribes provide
    resources that benefit both tribal and nontribal citizens, and help
    better the way of life in these rural areas of Oklahoma. Changes that
    would significantly affect these tribes deserve careful consideration
    and should warrant meaningful consultation. Without proper discussions,
    these actions could have profound negative implications on both tribal
    communities and those they affect. Again, I would like to thank the
    committee for their careful consideration of this issue. I look forward
    to working with my colleagues as we seek to bring resolution to this
    important issue. Thank you.
                                     ______

        [A letter submitted for the record by the Jicarilla Apache
    Nation on H.R. 3522 follows:]

    [GRAPHIC] [TIFF OMITTED] T1818.013

    [GRAPHIC] [TIFF OMITTED] T1818.014

        [A statement submitted for the record by the Lummi Indian
    Nation on H.R. 5608 follows:]

         Statement submitted for the record by Henry Cagey, Chairman,
                  Lummi Indian Business Council, on H.R. 5608

        Dear Chairman Nick Rahall:
        The Lummi Indian Nation has been an active member of the various
    local, regional, national, and international organizations that have
    sought to improve the status of the Indian peoples and the government-
    to-government relationship the ``treaty tribes'' have with the United
    States. We fully support our national organizations in their advocacy
    for Indian Country. However, like most Indian Nations, we believe that
    the Indian Tribes must maintain a direct dialogue with the
    Administration and the Congress, and work to assure that the Supreme
    Court decisions that impact our sovereignty are subjected to
    congressional review and reversal when appropriate.
        We were an original member of the Alliance of American Indian
    Leaders that sought to secure the introduction and enactment of Senate
    Concurrent Resolution 76 (via Senator Inouye, then Chairman of the
    Senate Select Committee on Indian Affairs, 1987), and then the
    companion HCR #331 (hearing presided over by then Rep. Nighthorse
    Campbell, 1988). The House measure passed first. These are known as the
    Iroquois Resolution. It was used to proclaim, during the 200 Year
    Celebration of the Constitution, that the government-to-government
    relationship between the Indian Tribes and the United States was
    founded directly upon the U.S. Constitution, and that the Iroquois
    Confederacy played a modeling part of constitutional history.
        We were actively involved in the development of the original tribal
    self-governance amendments to P.L. 93-638, the Indian Self-
    Determination and Education Assistance Act (ISDEAA), and have become a
    self-determining and self-governing Indian Nation thereafter. But, we
    will always remain critical of the United States ability to stabilize
    their federal Indian policy in positive light of the needs and
    sovereignty of Indian Nations.
        We firmly believe that the U.S. Constitution was a political
    miracle that came from the Founding Fathers at the Constitutional
    Convention. We believe that ``Population Sovereignty'' shall always be
    the foundation of national governance. We recognize that all member
    states of the Union have been required to develop a ``Republican Form
    of Government.'' The dream of constitutional government, that is
    accountable to the people, has spread around the world, as predicted by
    the Iroquois Vision of the Tree of Peace.
        The United States can and should play a pivotal role in the
    development of constitutional popular sovereign governments, wherever
    the demands of the resident populations call for it. However, to be a
    role model requires the United States to live in accordance to the
    canons of construction of written constitutions. It is a mandate of the
    People's dream of fair, honorable, and accountable national government.
        Our testimony is based on our review of the history and intent of
    the U.S. Constitution, as pertains to the regulation and management of
    Indian Affairs by the national government, and recognition by the state
    governments that they do not inherently have this type of jurisdiction.
    The historic relationship of the Indian Tribes to the United States is
    definitely constitution based. But, the whole constitution must be
    taken into consideration and not just the standard, if not habitual,
    reference to the ``treaty powers'' or the powers to govern ``Indian
    commerce.''
        We believe that there is a theory of balanced governance within the
    constitution that has been ignored for the enrichment of the ``Common
    Good'' at the expense of the Indian tribes. Continuation along this
    path shall ultimately lead to weakening of constitutional foundations.
    Thomas Jefferson believed that this constitution ``shall last a
    thousand, thousand generations.'' It is up to us to prove him right. We
    should not cheapen the vision of the constitution for immediate
    economic gains of private interests. The United States is a nation
    first. All of its powers derive from the constitution. At one time,
    states rights held a paramount influence under the Articles of
    Confederation, that theory proved unacceptable and was drastically
    weakened in the Popular Constitution. Since then, the amendments that
    have been secured have made the constitution even more ``Popular'' and
    placed national governance way above state rights theory.
        We thank you for receiving our written statement and testimony
    (attached herewith).
        [NOTE: The attachment has been retained in the Committee's official
    files.]
                                     ______

        [A letter submitted for the record by Paul McIntosh,
    Executive Director, California State Association of Counties,
    follows:]

    April 8, 2008

    The Honorable Nick J. Rahall II
    Chairman
    House Committee on Natural Resources
    1324 Longworth House Office Building
    Washington, DC 20515

    Dear Chairman Rahall:

        On behalf of the California State Association of Counties (CSAC), I
    am writing to urge you to include in the Consultation and Coordination
    with Indian Tribal Governments Act (H.R. 5608) provisions that would
    require the U.S. Department of Interior and the National Indian Gaming
    Commission to consult with local governments when formulating,
    amending, implementing, or rescinding policies that have tribal-local
    governmental implications. Additionally, CSAC urges you to include
    language in H.R. 5608 that would require the aforementioned agencies to
    provide local governments with notification of any federal
    administrative or tribal actions that occur under existing regulatory
    authority that would impact local communities.
        As you know, H.R. 5608 in its current form would strengthen
    requirements related to government-to-government dialogue between
    federal agencies and Indian tribes. However, there are no provisions
    that would ensure that local governments--including counties--are
    notified or provided the opportunity to comment on federal policies
    that have a direct impact on counties' ability to provide services to
    their citizens.
        In California, there are over 100 federally recognized tribal
    governments. Incidentally, 54 of those tribes have operational casinos,
    which have created a myriad of significant economic, social,
    environmental, health, safety, and other impacts on surrounding local
    communities. As the level of government that has a legal responsibility
    to provide for the health, safety, and general welfare of all citizens,
    counties strongly believe that the formulation or proposed modification
    of federal tribal policies--whether directly related to gaming or not--
    should be developed in such a way that county governments are a
    meaningful part of the process.
        In addition, while we understand that H.R. 5608 is tailored to
    address issues surrounding the development or modification of federal
    regulations, rules, or policies, we urge you to include language that
    would provide local governments with notification of any agency or
    tribal actions under existing procedures or processes that could affect
    localities. As you know, under current practices, no notification is
    provided to local governments with respect to Indian Lands
    Determination requests. Additionally, notice of fee-to-trust
    applications is inadequate, with many local governments not provided
    any type of notification when such applications are filed. Accordingly,
    CSAC urges you to include provisions in H.R. 5608 that would require
    the Department of Interior to notify local governments of any actions--
    including, but not limited to the aforementioned examples--that would
    have an appreciable impact on local communities.
        We appreciate your consideration of our concerns and would welcome
    the opportunity for further dialogue on this issue of importance to
    county governments across the nation.

    Sincerely,

    Paul McIntosh
    CSAC Executive Director

    cc:  California Members of the House Natural Resources Committee
                                     ______

        [A statement submitted for the record by Chris E. McNeil,
    Jr., President & CEO, Sealaska Corporation, on H.R. 5680
    follows:]

           Statement submitted for the record by Chris McNeil, Jr.,
             President and CEO, Sealaska Corporation, on H.R. 5680

        Mr. Chairman and Members of the Committee:
        Thank you for the opportunity to submit written testimony on behalf
    of Sealaska Corporation (``Sealaska'') regarding H.R. 5680, A Bill to
    Amend Certain Laws Relating to Native Americans. In particular, I am
    submitting written testimony in support of Section 8 of H.R. 5680,
    which provides a technical amendment to the Alaska Native Claims
    Settlement Act (``ANCSA''). This amendment is important for purposes of
    shareholder votes to issue new settlement common stock to elders,
    shareholder descendants, or left-outs.
        Sealaska is the Alaska Native Regional Corporation for Southeast
    Alaska--one of 12 Regional Corporations established pursuant to ANCSA.
    Our shareholders are descendants of the original inhabitants of
    Southeast Alaska--the Tlingit, Haida and Tsimshian people. Sealaska
    currently has roughly 20,000 shareholders.
        Pursuant to ANCSA, Alaska Natives born before December 18, 1971,
    enrolled to one of thirteen Regional Corporations as shareholders, and
    to the Villages in which they lived or to which they had an historical,
    cultural, and familial tie. All shareholders enrolled to one of the
    Regional Corporations received original settlement common stock that
    carried with them certain rights, such as the right to allocate the
    shares through inheritance or gift, or to vote in Board elections or on
    corporate resolutions at annual meetings.
        In 1988, ANCSA was amended to allow a Regional Corporation to
    authorize the issuance of additional shares of settlement common stock
    to: 1) Natives born after December 18, 1971 (``Shareholder
    Descendants''); 2) Natives eligible for enrollment but who were not so
    enrolled (``Left-Outs''); and 3) Natives who have attained the age of
    65 (``Elders''). To issue new stock pursuant to the 1988 amendment, a
    Regional Corporation was required to have a favorable vote from a
    majority of ALL shares of the Corporation. Therefore, if only 70
    percent of all shares of the Corporation voted on a resolution, more
    than 73 percent of the voting shares had to be in favor of a
    resolution--a supermajority. In 2006, the ANCSA voting standard was
    amended, in Public Law No. 109-221, to allow ANCSA Corporations to
    adopt a resolution to issue settlement common stock to Shareholder
    Descendants, Left-Outs and Elders through an affirmative vote of a
    majority of those shares present or represented by proxy at an annual
    meeting--a simple majority. See 43 U.S.C. Sec. 1629b(d)(3).
        Several ANCSA Regional Corporations would like to now bring the
    issue to a vote, but would like to have the option of issuing new
    settlement common stock with voting limitations and limitations on the
    ability to transfer the stock by gift (particularly if the new stock is
    ``life estate'' stock). The current law as written in ANCSA is not
    clear regarding the ability to limit voting rights or transfer rights
    with regards to issuance of new stock pursuant to section 7(g)(1)(B) of
    ANCSA. See 43 U.S.C. Sec. 1606(g)(1)(B). Section 8 of H.R. 5680 would
    clarify that an ANCSA Regional Corporation could issue additional
    settlement stock to Shareholder Descendants, Left-outs, and Elders,
    with certain limitations on voting rights and the right to transfer by
    gift. The amendment merely provides ANCSA corporation shareholders the
    flexibility to determine the type of new settlement common stock that
    could be issued.
        Sealaska Corporation has utilized the new voting standard to put
    forth corporate resolutions to issue new settlement common stock to
    Shareholder Descendants and Left-Outs pursuant to section 7(g)(1)(B) of
    ANCSA, without limitations on voting rights. The resolutions passed
    under the new voting standard (simple majority), and the settlement
    common stock has been issued.
        Sealaska has also sought a corporate resolution to issue additional
    stock to Elders, but the stock would not include voting rights, as the
    elders already have voting rights as original shareholders born before
    December 18, 1971. The purpose of the additional stock would be the
    provision of additional dividend distributions. Because of the voting
    right limitation, the resolution would have to be considered under a
    different section of ANCSA that is not subject to the new ``simple
    majority'' standard, Section 7(g)(2). See 43 U.S.C. 1606(g)(2).
    Utilizing the ``super majority'' voting standard makes it difficult to
    pass any resolution.
        Based on the foregoing, Sealaska supports the amending language in
    Section 8 of H.R. 5680, as it would clarify that a resolution to issue
    new settlement common stock under Section 7(g)(1)(B) of ANCSA may
    provide that the settlement common stock is subject to certain
    limitations--life estate (already provided in existing law); voting
    limitations; or limitations on the ability to transfer stock by gift.
    The issuance of new settlement common stock with certain limitations
    would, of course, remain subject to the approval of the shareholders of
    the ANCSA Corporation.
        We appreciate the opportunity to submit written testimony in
    support of Section 8 of H.R. 5680. If you have any questions regarding
    this matter, please do not hesitate to contact me.
        Gunalcheesh. Thank you.
                                     ______

        [A statement submitted for the record by the National
    Congress of American Indians, follows:]

      Statement of the National Congress of American Indians on H.R. 5608

        On behalf of the National Congress of American Indians, I would
    like to thank Chairman Rahall and Representative Kildee for introducing
    this important legislation, and thank the Committee for this hearing.
    NCAI strongly supports the principle of this legislation, which is to
    require federal agencies to take seriously their responsibility to
    consult and coordinate with Indian tribal governments on matters that
    will affect the tribes. We sincerely thank you for your efforts to
    develop a stronger intergovernmental relationship between Indian tribes
    and the federal government.
        Your attention to the issue of consultation is particularly
    important at this time. Consultation is at the cornerstone of the
    federal-tribal relationship and the federal policy of tribal self-
    determination. It is the primary mechanism through which the federal
    government's authority under the trust responsibility is reconciled
    with the tribal inherent right of self-government. In recent years,
    however, tribal leaders have witnessed a breakdown in effective
    consultation with the federal government that has undermined federal
    policy-making and frustrated tribal leaders. NCAI adopted Resolution #
    SAC 06-026 (attached) in 2006 calling for a re-evaluation of the
    federal consultation policy and consideration of recommendations for
    improving consultation.
        Although the NCAI membership has not yet had an opportunity to take
    a formal position on H.R. 5608, the NCAI Executive Board, which is
    composed of regional representatives from across Indian Country, has
    considered the legislation and has several initial concerns that we
    encourage the Committee to resolve before moving forward with this
    legislation. First, we urge the Committee to expand the scope of this
    legislation to apply equally to all executive agencies. Second, we
    strongly recommend that the Committee consult widely with Indian tribes
    about the substance of the legislation.
        NCAI has a long history of experience in facilitating policy
    negotiations between tribal leaders and federal agencies. We share some
    of the lessons we have learned from these experiences in this testimony
    in order to provide context for the Committee as it considers H.R.
    5608.
    ``Consultation and Coordination''
        H.R. 5608 refers to ``consultation and coordination'' with Indian
    tribal governments about proposed Federal actions that will impact
    tribal interests. Inherent in the notion of true government-to-
    government coordination is the idea that the tribal governments will be
    a partner in developing federal policies that will impact them.
    Consultation and coordination is not an empty procedure where the
    agency first talks to the tribes and then does whatever it wants. In
    our view, this is the most fundamental misunderstanding of the
    consultation policies. Consultation is the necessary precursor to
    federal decisions that are in the best interests of tribes and that
    support tribal self-government. The federal policy has substance and
    requires accommodation of tribal views.
        In particular, the federal government has a trust responsibility to
    Indian tribes, to make decisions that are for the benefit of tribes.
    The federal government must be in communication with the tribes to be
    able to make beneficial decisions, and must assume that the tribes
    themselves are the best judge of their own interests. Secondly, tribal
    governments are sovereigns recognized under the U.S. Constitution. The
    relationship with tribes must respect the governmental status because
    the tribe performs important governmental functions like law
    enforcement that require intergovernmental coordination.
    Intergovernmental relationships require consultation to ensure comity
    and there is preference for negotiated resolutions rather than
    authoritarian decrees.
        Consultation first became a part of federal Indian policy as tribes
    sought a means to resolve the problems caused by the federal policy of
    tribal termination in the 1950's and 1960's and federal policy shifted
    towards a policy of Indian self-determination. During the Termination
    Era, the proponents of terminating the federal-tribal relationship
    relied on the argument that Indian tribes would be better off if they
    were freed from the domination of the Bureau of Indian Affairs and
    released from federal oversight. Tribes were not consulted on this
    point, of course, and termination was a disaster for tribes both
    culturally and economically. In 1954, in the middle of the
    Congressional hearings on the termination bills, NCAI launched an
    offensive to stop termination. NCAI's ``Declaration of Indian Rights''
    established the principles that tribes must first be informed of
    federal policies that would affect their rights, that tribes themselves
    were the best judge of their own interests, and that the federal
    government must consult with tribes and obtain their consent before
    implementing federal policies affecting tribal rights. These principles
    galvanized opposition to termination, educated Congress and the
    Administration, and were successful in first slowing and then stopping
    the efforts to terminate tribes.
        As the alternative to termination, NCAI advocated instead for
    tribal self-determination and a review of federal policies. The 1961
    ``Declaration of Indian Purpose'' called for the ``right to choose our
    own way of life'' and the repeal of the federal termination policy. The
    termination policy was repealed by Congress in 1968, and in 1970
    President Nixon announced the policy of Self-Determination that created
    dual goals of maintaining the federal government's trust responsibility
    and promoting tribal self-government. Self-Determination has proven to
    be the most successful and stable tribal policy in U.S. history.
        Congress and the Executive Branch both recognized the need for
    consultation with tribal leaders in the implementation of the Self-
    Determination policy:
            Congress...recognizes the obligation of the United States to
            respond to the strong expression of the Indian people for self-
            determination by assuring maximum Indian participation in the
            direction of...Federal services to Indian communities so as to
            render such services more responsive to the needs and desires
            of those communities.
            -- Public Law 93-368, Indian Self-Determination and Education
            Assistance Act, 1975
        In 1994, President Clinton issued a memorandum to formalize
    consultation entitled Government-to-Government Relations With Native
    American Tribal Governments. Congress also addressed consultation in
    the mid-90's in the Unfunded Mandates Reform Act of 1995 (UMRA). The
    UMRA requires each agency to ``develop an effective process to permit
    elected officers of State, local, and tribal governments (or their
    designated employees with authority to act on their behalf) to provide
    meaningful and timely input in the development of regulatory proposals
    containing significant Federal intergovernmental mandates.'' UMRA, P.L.
    104-4, Sec. 204.
        President Clinton further articulated the consultation policy for
    the Executive branch in Executive Order (EO) 13084, Consultation and
    Cooperation with Indian Tribal Governments, in 1998. Ironically, EO
    13084 and an accompanying Executive Order concerning consultation of
    state and local governments, were developed without consultation with
    either group. EO 13084 was replaced in 2001 by EO 13175. This Executive
    Order continues to be in effect today and was reaffirmed by President
    Bush in 2004.
        EO 13175, which is binding on all executive branch agencies,
    acknowledges the federal government's trust responsibility to tribal
    governments and requires each federal agency to develop ``an
    accountable process to ensure meaningful and timely input by tribal
    officials in the development of regulatory policies that have tribal
    implications.'' The EO extends beyond formal agency rule-makings and
    includes:
            ``regulations, legislative comments or proposed legislation,
            and other policy statements or actions that have substantial
            direct effects 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.''
        Section 7 of the EO, ``Accountability,'' requires the agencies to
    certify that the requirements of the order have been complied with
    whenever an agency submits final draft regulations to Office on
    Management and Budget (OMB). This section does not, however, create any
    mechanism for tribal recourse if the federal government fails to
    adequately consult on a matter. During the development of EO 13175,
    NCAI and many tribal governments recommended that an accountability
    mechanism be included in Section 7 of the EO. Specifically, NCAI
    recommended including the following language:
            ``If the agency fails to meet the consultation requirements,
            the objecting tribe shall report to OMB and OMB shall review
            the tribe's concerns. If the concerns are warranted, the draft
            final regulations shall be returned to the offending agency to
            follow the prescribed consultation policy with the necessary
            tribe(s).''
        This language was not, however, included in the Executive Order.
        The federal policy-making criteria set forth in Section 3 of the
    Executive Order provide some insight into the very active role that
    tribes are expected to play in the consultation process and the high
    level of deference that the federal government is expected to give to
    tribal policy decisions. Section 3 states that:
            ``When undertaking to formulate and implement policies that
            have tribal implications, agencies shall:
            (1)  encourage Indian tribes to develop their own policies to
            achieve program objectives;
            (2)  where possible, defer to Indian tribes to establish
            standards; and
            (3)  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.''
        Under EO 13175, each agency was given 30 days to designate an
    official with the primary responsibility for implementation of the
    Executive Order. That official was directed to submit the agency's
    consultation process to OMB within 60 days of the effective date of the
    Executive Order. The consultation processes developed by the federal
    agencies vary widely and play an important part in giving meaning to
    the policy established in the Executive Order. The agencies with
    substantial activities in Indian Country, like the BIA and IHS, have
    much more detailed and formalized consultation policies than agencies
    who deal with tribal issues less frequently.
    Consultation In Practice
        As a matter of practice, consultation has taken many different
    forms depending on the issue to be discussed. The scope of the
    consultation frequently correlates with the breadth of the proposal,
    and timelines may vary. Consultation can be more or less formal and may
    involve a core group of tribal representatives, a period of written
    comments, a one-time national meeting, region or area specific
    meetings, a series of large-scale national consultation meetings, or
    some combination of any of these. This flexibility allows tribes and
    the federal government to develop a process that is appropriately
    tailored for a given issue.
        The federal government has held more than 30 consultation sessions
    in the past year alone on topics ranging from the development of a rule
    on government contracting to a major overhaul of the Bureau of Indian
    Affairs. These sessions have varied widely in their scope and
    effectiveness. NCAI has participated in or observed many of these
    consultation sessions and has informally and formally collected
    feedback from tribal leaders participating in many of these sessions.
    An analysis of this feedback reveals that while consultation sessions
    are happening in significant numbers, the impact of these sessions is
    unclear.
        On some of the most important and controversial issues, tribal
    leaders have repeatedly raised concerns that there is no consultation,
    or that consultation is held after the decision is already made. At the
    same time, on other issues there is a sense among many tribal leaders
    that they are being ``consulted to death,'' with lots of meetings but
    little opportunity for meaningful input into important federal
    decisions. Tribal leaders have great concerns that the federal
    representatives attending the consultations lack decision-making
    authority. Lack of follow-up to a consultation session is another
    recurrent criticism. Tribal leaders describe many of the sessions as
    meetings where the same things are said over and over again and no
    action is taken. Or, as sessions where tribal leaders come and express
    their opinions, but the federal government had already made a decision
    and the tribal input had no impact. Moreover, tribal leaders repeatedly
    expressed frustration that there is no way for them to hold the federal
    government accountable when it fails to adequately consult or ignores
    their views. In light of all of these concerns, many tribal leaders
    have expressed that the frequent consultation sessions are becoming an
    unjustifiable drain on tribal resources
        On the other hand, federal representatives have expressed concern
    that tribal leaders attending consultation sessions are not well-versed
    in the issues to be discussed, and that the feedback they receive at
    consultation sessions is not always helpful. The federal government
    representatives also expressed frustration that tribal leaders raise
    issues that are matters for Congress and outside the agency's
    authority. There are concerns about the timing of consultation. If it
    takes place before the agency develops a policy the tribes complain
    that they have nothing to consult on. If it takes place after
    development of a policy, tribes complain that they were not consulted
    in the first place. Concerns were also raised about the cost and time
    spent conducting consultation sessions.
        An analysis of the consultation sessions that were deemed by tribal
    leaders and federal officials to be more successful reveals a number of
    common elements. First, in successful consultation sessions,
    expectations were clearly established from the outset with timeframes
    and goals communicated to all participants. Second, successful
    consultation sessions generally focused on a relatively well-defined
    regulatory issue that was shared with tribal leaders in advance. Third,
    many successful consultation sessions centered around a drafting
    process involving a written document that could be discussed in detail
    and fine-tuned with an opportunity to exchange information over several
    meetings. Fourth, successful consultation sessions generally involved
    an informal pre-consultation scoping discussion with a small group of
    tribal experts. Fifth, the most productive sessions were attended by
    federal agency staff who were well-informed, part of the decision-
    making chain, and willing to be frank and open about internal agency
    concerns, as well as attended by tribal leaders who were willing to
    spend time and effort to learn about the details of an issue and were
    accompanied by appropriate technical staff and other tribal employees
    with expertise on the subject matter.
    The Consultation and Coordination with Indian Tribal Governments Act
        H.R. 5608 would largely codify EO 13175 as applied to the
    Department of Interior (DOI), the National Indian Gaming Commission
    (NIGC), and the Indian Health Service (IHS). H.R. 5608 differs from EO
    13175 in three key ways: First, federal agencies other than NIGC, IHS,
    and DOI are not included in the legislation. Presumably these agencies,
    many of which play an important role in setting policies that impact
    tribal communities, would continue to be covered by the Executive
    Order. NCAI is concerned, however, that setting up two tiers of
    consultation requirements could well have unintended consequences. For
    example, it may be read by some to suggest that the consultation
    obligation at the Department of Justice, Department of Education, or
    Department of Homeland Security, for example, is somehow less important
    than that of the Department of Interior. It could also have a chilling
    effect on multi-agency consultation sessions, which are very important
    when dealing with issues that cut across agencies such as public
    safety, public health, or economic development. NCAI urges the
    Committee to consider amending H.R. 5608 to include all federal
    agencies.
        Second, H.R. 5608 defines ``accountable consultation process,'' a
    term that was left undefined in EO 13175. Specifically, the legislation
    would establish four minimum criteria for an ``accountable consultation
    process,'' including: 1) ample opportunity for tribal input; 2) full
    consideration of tribal recommendations; 3) written notification of
    agency decisions; and 4) a 60-day period after notice is given to
    tribes before the agency decision takes effect.
        Creating a common understanding of what constitutes an
    ``accountable consultation process'' is an important step toward
    improving government-to-government consultation. NCAI encourages the
    Committee to consider additional elements that might be part of an
    accountable consultation process such as: ensuring that adequate notice
    is given to tribal governments of all consultation sessions that
    includes the relatively well-defined topic to be addressed at the
    consultation session; requiring that consultation be conducted at the
    outset of any proposal, before decisions have been made at the agency
    level; ensuring that the maximum amount of deference possible should be
    given to tribal leaders to develop policies that will impact tribal
    communities; and providing for a written explanation when tribal
    suggestions or recommendations cannot be accommodated. Notice and
    information-sharing are a chronic problem. This Committee may also want
    to consider directing the Administration to develop an internet-based
    system to share information with tribes using web sites and e-mail
    list-serves.
        In addition, we are concerned that the 60-day period for agency
    action to take effect provided for in H.R. 5608 could cause delays to
    important regulatory changes that will benefit Indian tribes. NCAI
    recommends that the Committee consult with Indian tribal governments
    about this and other elements of an ``accountable consultation
    process'' to gain the benefits of the years of experience tribes have
    with various consultation processes and to be sure that the criteria
    maintains adequate flexibility.
        Third, H.R. 5608 would likely create a legal right that tribal
    governments could enforce in court. To the extent that the agency
    action in question constitutes an administrative action, it will be
    governed by the Administrative Procedures Act (APA). In such cases,
    tribes would have the ability to ask a federal court to review an
    agency's failure to comply with the standards set out in H.R. 5608, and
    to stop the proposed action until consultation takes place. Allowing
    tribes to have some mechanism for holding the federal government
    accountable when it fails to consult is an integral part of improving
    the government-to-government consultation process and would demonstrate
    that the United States is fully committed to a government-to-government
    relationship with Indian tribes.
    Conclusion
        Tribal leaders' experiences with consultation over the past 10
    years, reveal that consultation under the existing federal policies
    have fallen short of what a true government-to-government relationship
    requires. In some instances, agencies are not complying with existing
    federal consultation policies and are not committed to the principles
    underlying EO 13175. As a result, simply ratcheting up consultation
    requirements in written policies is unlikely to make a difference
    without an increased commitment on the part of the Administration to
    conduct meaningful consultation, and the creation of a mechanism for
    tribes to hold the federal government accountable when it fails to
    adequately consult with tribal governments.
        It goes without saying that any efforts to reform federal
    consultation policies and practice must be undertaken in consultation
    with Indian tribal governments. NCAI urges this Committee to solicit
    the feedback of tribal governments from across the country and to see
    this hearing as the first step in a collaborative process.
                                     ______

                     NATIONAL CONGRESS OF AMERICAN INDIANS
        the national congress of american indians resolution #sac-06-026

     TITLE: Calling for the Creation of an Ad Hoc Tribal Task Force to Re-
                    evaluate the Federal Consultation Policy

        WHEREAS, we, the members of the National Congress of American
    Indians of the United States, invoking the divine blessing of the
    Creator upon our efforts and purposes, in order to preserve for
    ourselves and our descendants the inherent sovereign rights of our
    Indian nations, rights secured under Indian treaties and agreements
    with the United States, and all other rights and benefits to which we
    are entitled under the laws and Constitution of the United States, to
    enlighten the public toward a better understanding of the Indian
    people, to preserve Indian cultural values, and otherwise promote the
    health, safety and welfare of the Indian people, do hereby establish
    and submit the following resolution; and
        WHEREAS, the National Congress of American Indians (NCAI) was
    established in 1944 and is the oldest and largest national organization
    of American Indian and Alaska Native tribal governments; and
        WHEREAS, meaningful dialogue and conferral with Indian Tribes and
    Alaska Native tribal governments on all federal actions that relate to
    Indian Affairs is the cornerstone of the Government-to-Government
    relationship between each Tribal government and the United States, and
    is the primary component of the relationship that exists by virtue of
    federal recognition of a Tribal government; and
        WHEREAS, on June 18, 2003, by Resolution #PHX-03-038 NCAI had to
    formally request the BIA to consult with Tribes on an effort to
    Reorganize the BIA Office of Indian Education Programs; and
        WHEREAS, due to lack of any meaningful discussion and conferral
    with tribes in a consultation process, on November 21, 2003, by
    Resolution #ABQ-03-076 NCAI formally opposed the Reorganization of the
    BIA Office of Indian Education Programs and requested hearings before
    the Senate Committee on Indian Affairs and the House Natural Resources
    Committee so that Tribal Leaders could testify as to their concerns
    about this matter; and
        WHEREAS, the Bureau of Indian Affairs' Office of Indian Education
    Programs, separated from the Bureau of Indian Affairs (BIA) in July of
    2006 and now named the Bureau of Indian Education Programs (referred to
    as ``BIE''), is implementing a reorganization originally conceived in
    2003, but not fully described to American Indian and Alaska Native
    Tribal Governments prior to implementation; and NCAI 2006 Annual
    Session Resolution SAC-06-026
        WHEREAS, in three years of meetings the BIA and the BIE did not
    once engage in a meaningful and systematic consultation process with
    the members prior to implementing this reorganization and failed to (1)
    provide actual notice of what was the agency intended to do in the
    reorganization at any meeting; (2) disclose with candor all information
    known to the BIA or BIE that could potentially have any impact on the
    members; (3) did not comply with the BIA's own consultation policy or
    federal regulations addressing the components of a valid consultation;
    and (4) is still not complying with the consultation policy or federal
    regulations with regard to personnel actions taken as part of the
    implementation; and
        WHEREAS, in Resolution #ABQ-03-076 the NCAI protested the fact that
    the Bureau of Indian Affairs is raising standards while reducing
    financial and human resources presently available to Bureau operated
    and funded schools, while at the same time high level education
    positions were not subject to any funding reductions; and
        WHEREAS, as a result of the failure of the BIA and BIE to engage in
    all of the elements of meaningful consultation with American Indian
    Tribes and Alaska Native Tribal Governments, the reorganization that is
    being implemented continues to require program cuts, fewer resources at
    some local agency offices while increasing the number of Deputy and
    Associate Deputy Director Positions in the BIA to at least 7, all of
    which are to be from the Senior Executive Service and therefore having
    a salary of up to $160,000 per year.
        NOW THEREFORE BE IT RESOLVED, that the NCAI does hereby call for
    the creation of an ad hoc Tribal Task Force to re-evaluate the Federal
    Consultation Policy and make recommendations for improvement to the
    consultation process; and
        BE IT FURTHER RESOLVED, the NCAI recommends that the Task Force
    evaluate the policy changes in the attached document and consider the
    following reforms:
          Distinguishing between major federal actions of national
    importance and other actions that may be of minor importance;
          Allowing and encouraging federal agencies to engage in
    early informal consultation with tribal leaders when the agency is
    beginning to consider an issue and before any actions have been
    planned; and
        BE IT FURTHER RESOLVED, that the NCAI does hereby request hearings
    before the Senate Committee on Indian Affairs and the House Natural
    Resources Committee and a meeting with the White House so that Tribal
    Leaders may testify as to (1) why a federal statute with the minimum
    requirements of ``consultation'' should be adopted; and (2) what would
    be the minimum requirements of a valid ``consultation;'' and
        BE IT FINALLY RESOLVED, that this resolution shall be the policy of
    NCAI until it is withdrawn or modified by subsequent resolution. Page 2
    of 3 NCAI 2006 Annual Session Resolution SAC-06-026.

                                 CERTIFICATION

        The foregoing resolution was adopted by the General Assembly at the
    2006 63rd Annual Session of the National Congress of American Indians,
    held at the Sacramento Convention Center in Sacramento, California on
    October 1-6, 2006, with a quorum present.
        ATTEST:
        [Signed by ``President'' and ``Recording Secretary'']
                                     ______

    Proposed minimum requirements of a valid consultation prior to taking
            federal action:
    (a) For Federal Action at the National or Regional Level:
        (1) Adequate notice so that Tribal governments have a meaningful
    opportunity to be heard. Adequate notice shall include, but is not
    limited to:
              (A) a candid written statement of what a federal Department
            or Agency is proposing to do, including all components of a
            proposed action provided at least two months before any meeting
            with Tribal governments to address the proposed action; and
              (B) all information that the federal Department or Agency has
            that shows a reasonable basis for the proposal and any
            information that the federal Department or Agency has that
            questions the basis for the proposal, to be provided to Tribal
            governments at least two months before any meeting with Tribal
            governments to address the proposed action;
              (C) a statement of all potential effects of the proposed
            action on Tribal governments, their members, and tribal
            resources of all kinds, and present and future federal
            resources for federal agency undertakings to assist or fund
            Tribal governments or other undertakings that affect Tribal
            governments and tribal resources of all kinds;
        (2) A Meaningful Opportunity to be Heard includes, but is not
    limited to:
              (A) an initial meeting at the local agency office level,
            after giving adequate notice, where Tribal governments may
            state their views on the proposed action, request additional
            information, suggest alternatives to the proposed action, and
            where there shall be joint deliberation among the Tribal
            governments and the agency; and,
              (B) a second meeting at the local agency office level after
            any requested additional information has been provided to
            Tribal governments, to allow Tribal governments to give any
            comments, suggestions, including alternatives and
            recommendations on the proposed action after reviewing the
            additional information: and,
              (C) a third meeting at the regional office level to provide
            for joint deliberation and collaboration among Tribal
            governments from other agencies in the region and the federal
            department or agency, and an opportunity for Tribal governments
            to parties to give any comments, suggestions, including
            alternatives and recommendations on the proposed action as a
            result of that collaboration and joint deliberation; and,
              (D) No change shall be made in a proposed action until
            completion of all regional level meeting are completed and all
            actions required under the following section (3) have been
            completed.
              (E) All meetings shall be transcribed by a court reporter as
            part of the official record of the consultation process.
        (3) Publication of Tribal Comments, Questions, Suggested
    Alternatives and other Recommendations
              (A) The Secretary of a Department or a designated actor for
            the Secretary shall produce a written summary of the Tribal
            governments' comments, questions, suggested alternatives and
            other recommendations as to the proposed action, and provide
            answers to the questions asked; and,
              (B) The Secretary of a Department shall cause the written
            summary to be distributed to all Tribal governments, with two
            months' prior notice of a nation-wide meeting; and
              (C) The Secretary shall hold the nation-wide meeting to
            provide an opportunity for Tribal governments to participate in
            joint deliberation and collaboration among Tribal governments
            from all regions and the federal department or agency, and an
            opportunity for Tribal governments and other interested parties
            to give any comments, suggestions, including alternatives and
            recommendations on the proposed action as a result of that
            collaboration and joint deliberations; and.
              (D) The nation-wide meeting shall be transcribed by a court
            reporter as part of the official record of the consultation
            process.
        (4) Serious Consideration of Tribal Comments, Suggested
    Alternatives and other Recommendations.
              (A) The Secretary shall issue notice of a proposed final
            action to all Tribal governments and other interested parties
            that participated in local, regional or nation-wide meetings. A
            proposed action cannot be implemented is provided to all Tribal
            governments and other interested parties until notice that the
            final action shall be implemented. There shall be a period for
            submission of written comments between issuance of the proposed
            final action and notice of implementation.
              (B) The proposed final action shall incorporate, to the
            extent feasible, the comments, suggested alternatives and other
            recommendations of Tribal governments, including
            recommendations that the proposed action not be done.
              (C) Where appropriate, based upon the suggested alternatives,
            comments, questions and other recommendations, the proposed
            final action shall provide for different forms of
            implementation at the local level to address specialized issues
            arising out of forms of Tribal government decision-making, and
            unique aspects of Tribal culture.
              (D) Where a suggested comment, alternative or other
            recommendation has not been given effect in the proposed final
            action, the Secretary shall provide in writing to the Tribal
            government or other interested party making the comment,
            alternative or other recommendation, the reason for not
            incorporating the suggested comment, alternative or other
            recommendation into the proposed final action. Any reason for
            not incorporating the suggested comment, alternative or other
            recommendation must be substantial.
              (E) Notwithstanding any other provision of this paragraph, if
            percent (50%) of the federally recognized American Indian and
            Alaska Native Tribal governments affirmatively state their
            opposition to the proposed action, after notice, and the end of
            at least a two month period to submit comments or
            recommendations, the action shall not be implemented and the
            Secretary shall state in writing.

    (b) For Federal Action at the Local Agency Level:
        (1) Adequate notice so that Tribal governments have a meaningful
    opportunity to be heard. Adequate notice shall include, but is not
    limited to:
              (A) a candid written statement of what a federal Department
            or Agency is proposing to do, including all components of a
            proposed action provided at least two months before any meeting
            with Tribal governments to address the proposed action; and
              (B) all information that the federal Department or Agency has
            that shows a reasonable basis for the proposal and any
            information that the federal Department or Agency has that
            questions the basis for the proposal, to be provided to Tribal
            governments at least two months before any meeting with Tribal
            governments to address the proposed action;
              (C) a statement of all potential effects of the proposed
            action on Tribal governments, their members, and tribal
            resources of all kinds, and present and future federal
            resources for federal agency undertakings to assist or fund
            Tribal governments or other undertakings that affect Tribal
            governments and tribal resources of all kinds;
        (2) A Meaningful Opportunity to be Heard includes, but is not
    limited to:
              (A) an initial meeting at the local agency office level,
            after giving adequate notice, where Tribal governments and
            other interested parties may state their views on the proposed
            action, request additional information, suggest alternatives to
            the proposed action, and where there shall be joint
            deliberation among the Tribal governments, other interested
            parties and the agency; and,
              (B) Where there was any Tribal Questions, Suggested
            Alternative or other Recommendation stated at the first
            meeting, a second meeting shall be held at the local agency
            office level after any requested additional information has
            been provided to Tribal governments and other interested
            parties, to allow Tribal governments and other interested
            parties to state their views and engage in joint deliberations
            on the proposed action after reviewing the additional
            information and hearing the comments of the Tribal governments
            and other interested parties; and,
              (C) No change shall be made in a proposed action until all
            meetings are completed and all actions required under the
            following section (3) have been completed.
              (D) All meetings shall be transcribed by a court reporter as
            part of the official record of the consultation process.
        (3) Publication of Tribal Comments, Questions, Suggested
    Alternatives and other Recommendations
              (A) The Director of the Local Agency or a designated actor
            for the Director shall produce a written summary of the
            comments, questions, suggested alternatives and other
            recommendations as to the proposed action, and provide answers
            to the questions; and,
              (B) The Director of the Local Agency shall cause the written
            summary to be distributed to all Tribal governments served by
            Local Agency, with one month's prior notice of a meeting to
            consider a proposed final action.
        (4) Serious Consideration of Tribal Comments, Suggested
    Alternatives and other Recommendations.
              (A) The Director of the Local Agency shall issue notice of a
            proposed final action to all Tribal governments and other
            interested parties that participated in meetings or submitted
            comments to the Local Agency. A proposed action cannot be
            implemented until all Tribal governments served by the Local
            Agency and other interested parties are given notice that the
            final action shall be implemented. There shall be a period for
            submission of written comments between issuance of the proposed
            final action and notice of implementation.
              (B) The proposed final action shall incorporate, to the
            extent feasible, the comments, suggested alternatives and other
            recommendations of Tribal governments, including
            recommendations that the proposed action not be done.
              (C) Where a suggested comment, alternative or other
            recommendation has not been given effect in the proposed final
            action, the Director of the Local Agency shall provide in
            writing to the Tribal government or other interested party
            making the comment, alternative or other recommendation, the
            reason for not incorporating the suggested comment, alternative
            or other recommendation into the proposed final action. Any
            reason for not incorporating the suggested comment, alternative
            or other recommendation must be substantial.
              (D) Notwithstanding any other provision of this paragraph, if
            percent (50%) of the federally recognized American Indian and
            Alaska Native Tribal governments served by the Local Agency
            affirmatively state their opposition to the proposed action,
            after notice, and the end of at least a one month period to
            submit comments or recommendations, the action shall not be
            implemented and the Director of the Local Agency Secretary
            shall state in writing that the proposed action is not being
            implemented and the reason why the proposed action is not being
            implemented

    (c) Nothing in this section is intended to apply to the personnel
    matters of any Department or Agency that has existing statutes,
    regulations and policies concerning consultation with Tribal
    governments on personnel matters.
                                     ______

        [A letter submitted for the record by Ronda J. Snow, Lac du
    Flambeau Tribal Member, and Ginew Grandmother Spokesperson, on
    H.R. 5680 follows:]

    [GRAPHIC] [TIFF OMITTED] T1818.015

        [A statement submitted for the record by Ernest L. Stevens,
    Jr., Chairman, National Indian Gaming Association, on H.R. 5608
    follows:]

         Statement submitted for the record by Ernest L. Stevens, Jr.,
           Chairman, National Indian Gaming Association, on H.R. 5608

        On behalf of the National Indian Gaming Association (NIGA) and its
    184 member Tribes, I submit this written testimony on H.R. 5608,
    ``Consultation and Coordination with Indian Tribal Governments Act.''
    NIGA is a non-profit trade association dedicated to promoting Indian
    gaming and supporting Indian sovereignty. After decades of poverty and
    economic devastation, 224 Indian tribes in the lower 48 states use
    gaming revenues to rebuild community infrastructure, provide basic
    health, education, and social programs for their citizens, and provide
    hope and opportunity for an entire generation of Indian youth.
    Indian Tribes as Sovereign Governments, the Constitution & Treaty-
            Making
        Before Columbus, Indian tribes were self-governing nations, with
    democratic governments that respected the rights of the individual and
    protected the well being of the community. Back then, Native economies
    flourished through a strong network of trade. Native nations had
    achieved remarkable artistic, cultural and scientific milestones. For
    example, 60% of the crops grown worldwide today were cultivated by
    Native Americans before Europeans arrived on our shores. 1
    European nations acknowledged Indian nations as sovereign, self-
    governing societies with a natural right to our lands.
    ---------------------------------------------------------------------------
        \1\ J. Weatherford, Indian Givers: How the Indians of the Americas
    Transformed the World (1988) at 71.
    ---------------------------------------------------------------------------
        From the first days of the Republic, the United States adopted a
    policy of treaty-making and government-to-government relations with
    Indian tribes. In 1778, the Treaty with the Delaware Nation established
    a military alliance to assist the United States during the
    Revolutionary War, which provides:
            That a perpetual peace and friendship shall...subsist between
            the contracting parties aforesaid through all succeeding
            generations... And whereas the United States are engaged in a
            just and necessary war in defense of life, liberty, and
            independence against the King of England...on the behalf of
            their nation, [the Delaware] engage to join the troops of the
            United States aforesaid, with such a number of their best and
            most expert warriors as they can spare consistent with their
            own safety....
        The Treaty with the Delaware Nation also provides for government-
    to-government consultation between Congress and the ``deputies of the
    Delaware Nation.'' Like many other treaties, the Delaware Nation treaty
    expressly guaranteed the sanctity of Indian lands: ``the United States
    does engage to guarantee to the...nation of Delawares...all their
    territorial rights...as long as...the...Delaware nation shall...hold
    fast the chain of friendship now entered into.'' My people, the Oneida,
    aided the United States during the Revolutionary War by bringing corn
    to the American troops who were surviving a difficult winter at Valley
    Forge. During this early period, the United States entered into
    treaties with our Six Nations Confederacy.
        The Constitution ratifies these early Indian treaties and
    authorizes later treaties in the Treaty Clause, thereby acknowledging
    Indian tribes as sovereigns. U.S. Const., Art. VI. The Commerce Clause
    acknowledges Indian tribes as governments, together with Foreign
    nations and the several states. U.S. Const., Art. I, sec. 3, cl. 8.
        As President Jefferson declared to the British emissary, ``The
    sacredness of [Native American] rights is felt by all thinking persons
    in America as well as Europe.'' 2 Jefferson's views are
    reflected in the Louisiana Purchase Treaty, where the United States
    agreed to honor prior European treaties, until such time as the United
    States entered its own treaties with the Indian nations, based upon
    mutual consent:
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        \2\ A. Josephy, The Patriot Chiefs (1961) at 178.
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            The United States promise to execute such treaties and articles
            as may have been agreed between Spain and the tribes and
            nations of Indians until by mutual consent of the United States
            and the said tribes or nations other Suitable articles shall
            have been agreed upon. 3
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        \3\ Louisiana Purchase Treaty (Treaty between U.S.A. and the French
    Republic), Article VI (1803). (Spain is referenced because France
    acquired Louisiana territory from Spain).
    ---------------------------------------------------------------------------
    In total, the United States entered into more than 370 Indian treaties,
    and these treaties guaranteed tribal lands and tribal self-government.
    Those guarantees continue to protect tribal lands and tribal self-
    government today.
        After the Civil War, Congress established the Peace Commission that
    negotiated treaties with numerous Indian tribes. From the time that the
    14th Amendment was proposed on June 13, 1866 until it was proclaimed on
    July 28, 1868, the United States had ratified or negotiated treaties
    with the Choctaw, Chickasaw, Creek, Cherokee, Chippewa, Cheyenne and
    Arapaho, Delaware, Kiowa, Comanche and Apache, Sac and Fox, Seneca,
    Shawnee, Quapaw, Potawatomi, Sioux, Crow, Navaho and Shoshone-Bannock.
    The Fourteenth Amendment implicitly approves the United States'
    original policy of government-to-government relations with Indian
    tribes by re-affirming that ``Indians not taxed,'' that is tribal
    citizens, owe ``allegiance'' to our Indian nations. 4
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        \4\ Elk v. Wilkins, 112 U.S. 94, 99 (1884) (14th Amendment
    citizenship clause did not extend citizenship to tribal citizen, who
    owed allegiance to his own Indian tribe).
    ---------------------------------------------------------------------------
        In 1869, in his first inaugural address, President Grant said:
    ``The proper treatment of the original occupants of this land--the
    Indians [is] one deserving of careful study. I will favor any course
    toward them which tends to their...ultimate citizenship.'' Yet, most
    American Indians did not become citizens until the enactment of the
    Indian Citizenship Act of 1924, several years after the Choctaws and
    other American Indian soldiers served as Code Talkers in World War I.
    Modern Indian Affairs Policy: Tribal Self-Government and Self-
            Determination
        During the Depression, President Roosevelt announced a ``New Deal''
    for Native Americans, the Indian Reorganization Act of 1934 (IRA). The
    IRA promotes tribal self-government, sought to revitalize tribal
    economies and to restore tribal lands because too much land had been
    taken from tribes. 5
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        \5\ 25 U.S.C. sec. 465-467.
    ---------------------------------------------------------------------------
        Tribal governments have continued to support and defend Indian
    treaty rights and tribal self-government. In the 1960 Presidential
    campaign, John F. Kennedy sent a letter to the Association on American
    Indian Affairs outlining his Indian affairs policy. JFK pledged to end
    the Termination Policy of the 1950s and respect Indian treaty rights:
            [M]y administration would see to it that the Government of the
            United States discharges its moral obligation to our first
            Americans by inaugurating a comprehensive program for the
            improvement of their health, education, and economic well-
            being. There would be no change in treaty or contractual
            relationships without the consent of the tribes concerned....
            There would be protection of the Indian land base....
            6
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        \6\ Letter of Senator John F. Kennedy to Oliver LaFarge,
    Association on American Indian Affairs, October 28, 1960.
    ---------------------------------------------------------------------------
    Kennedy pledged to promote tribal economic development and vocational
    training, improve Indian education and provide better Indian health
    care. Kennedy also pledged that his Administration would ``[e]mphasize
    genuinely cooperative relations between Federal officials and
    Indians.'' President Kennedy followed through on his pledges by ending
    the Termination Policy and establishing Federal programs to revitalize
    Indian country.
        President Johnson included tribal governments in the War on
    Poverty, recognizing the difficult economic circumstances of Indian
    tribes and the need for basic community infrastructure. Thus, in
    addition to helping American Indians freely exercise our civil rights
    and our right to vote, President Johnson enabled tribal governments to
    provide essential services to tribal citizens.
        Building on the work of the Kennedy-Johnson Administrations,
    President Nixon promoted the Indian Self-Determination Act to empower
    tribal governments to provide the government services that the Bureau
    of Indian Affairs and the Indian Health Service previously provided.
    Nixon explained:
            It is long past time that the Indian polices of the Federal
            government began to recognize and build upon the capacities and
            insights of the Indian people. Both as a matter of justice and
            as a matter of enlightened social policy, we must begin to act
            on the basis of what the Indians themselves have long been
            telling us. The time has come to break decisively with the past
            and to create the conditions for a new era in which the Indian
            future is determined by Indian acts and Indian decisions.
            7
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        \7\ President Nixon, Special Message on Indian Affairs, July 8,
    1970.
    ---------------------------------------------------------------------------
        Presidents Ford, Carter, Reagan and Bush accepted the Indian Self-
    Determination Policy as the baseline for American Indian policy. In
    their Administrations, Congress built upon Self-Determination Policy
    through the Indian Health Care Improvement Act, the American Indian
    Religious Freedom Act, the Tribal College Act, the Indian Self-
    Governance Act, and the Indian Gaming Regulatory Act, among others.
        On January 24, 1983, President Reagan issued a Statement on
    American Indian Policy, explaining:
            When European colonial powers began to explore and colonize
            this land, they entered into treaties with the sovereign Indian
            nations. Our new nation continued to make treaties and to deal
            with Indian tribes on a government-to-government basis.
            Throughout our history, despite periods of conflict and
            shifting national priorities, the government-to-government
            relationship between the United States and Indian tribes has
            endured. The Constitution, treaties, laws and court decisions
            have consistently recognized a unique political relationship
            between Indian tribes and the United States which this
            administration pledges to uphold....

            The administration intends to...remove[e] the obstacles to
            self-government and...creat[e] a more favorable environment for
            the development of healthy reservation economies....
            Development will be charted by the tribes, not the Federal
            Government.... Our policy is to reaffirm dealing with Indian
            tribes on a government-to-government basis and to pursue the
            policy of self-government for Indian tribes without threatening
            termination....
        For his part, President George H.W. Bush reaffirmed President
    Reagan's policy and said,
            This government-to-government relationship is the result of
            sovereign and independent tribal governments being incorporated
            into the fabric of our nation.... I take pride in acknowledging
            and reaffirming the existence and durability of our unique
            government-to-government relationship. 8
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        \8\ President George H.W. Bush Statement, June 14, 1991.
    ---------------------------------------------------------------------------
    The Indian Gaming Regulatory Act
        In 1988, President Reagan signed into law the Indian Gaming
    Regulatory Act (IGRA) on October 17. Its purpose is to ``promote tribal
    economic development, tribal self-sufficiency, and strong tribal
    governments.''
        IGRA promotes tribal self-government by calling upon tribal
    governments to enact a tribal gaming regulatory ordinance for Indian
    gaming, subject to the review of the National Indian Gaming Commission
    to ensure that the ordinance meets the minimum statutory requirements.
    For Class II bingo, games similar to bingo, non-banked card games and
    pull-tabs, the NIGC then provides background monitoring to support
    tribal regulators. For Class III casino, lottery and pari-mutuel horse
    racing, Indian tribes must enter into Tribal-State compacts,
    establishing the regulatory framework and allocating responsibility
    between state and tribal regulators. The NIGC has a limited role in
    regard to Class III gaming, reviewing background checks and licenses of
    management and key employees, reviewing annual audits, approving tribal
    gaming ordinances, and approving management contracts.
        IGRA acknowledges tribal gaming regulators as the primary, day-to-
    day regulators of Indian gaming, yet the NIGC has continually tried to
    expand its duties beyond its statutory mandate. In Colorado River
    Indian Tribes v. NIGC, the Federal Court of Appeals for the District of
    Columbia held that NIGC does not have authority to issue mandatory
    minimum internal control standards for Class III gaming that could
    conflict with Tribal-State compacts.
    H.R. 5608: Consultation and Coordination with Indian Tribes Act
        President Clinton issued an Executive Order on Consultation and
    Coordination with Indian Tribes Act, Executive Order No. 13175 (2000).
    This Executive Order sets forth the requirements and framework for
    Executive agencies to consult with Indian tribes on a government-to-
    government basis to promote tribal self-government, protect treaty
    rights and safeguard tribal trust assets. President Bush affirmed
    Executive Order No. 13175 in his Executive Memorandum of September 23,
    2004. President Bush said, ``My Administration is committed to
    continuing to work with federally recognized tribal governments on a
    government-to-government basis and strongly supports and respects
    tribal sovereignty and self-determination....''
        In essence, H.R. 5608 codifies the essential principles of these
    longstanding government-to-government consultations between the United
    States and Indian tribes. This bill develops an ``accountable
    consultation process'' that must be used by the Department of Interior,
    Indian Health Service and the National Indian Gaming Commission for all
    policies that have tribal implications. The process is meant to ensure
    the following:
          that tribal officials have ample opportunity to provide
    input and recommendations to agencies on regarding formulating
    amending, implementing or rescinding policies with tribal implications;
          that tribal input and recommendations are fully
    considered by the agencies before such policies are created or changed;
          that tribal officials are provided written notification
    upon the creation or change of such policies, and
          that policies do not become effective until at least 60
    days after written notification to tribal officials.
        The bill sets out the fundamental principles guiding the
    development of the ``accountable consultation process.'' Primarily,
    these principles recite that:
          the United States has a legal and political relationship
    with tribes based on the constitution, treaties, statutes, executive
    orders, and court decisions; and
          the United States recognizes the right of tribes to self-
    government and that tribes exercise inherent sovereign powers over
    tribal lands and members.
        Agencies would be required to likewise respect the tribal self-
    government, honor treaty rights and strive to meet the responsibilities
    arising from our unique legal and political relationship. When Tribal
    governments administer federal statutes and regulations, the agencies
    are required to:
          encourage tribes develop their own policies to achieve
    program objectives;
          defer to Indian tribes to establish standards to the
    extent they do not violate applicable laws; and
          to consult with tribes regarding the need for federal
    standards and any alternatives that would preserve the authority of
    Indian tribes when determining whether to establish federal standards.
    H.R. 5608 requires each agency to develop an ``accountable consultation
    process'' not later than 60 days after enactment.
        The bill also prohibits the creation or change of federal policies
    affecting Indian tribes that impose substantial direct compliance costs
    on tribes unless funds are provided for compliance or the policy is
    developed through an accountable consultation process. The regulation
    in its preamble must provide a summary impact statement that includes
    the extent of prior tribal consultation, a summary of the tribal
    concerns, and the extent to which the agency met tribal concerns.
        The bill encourages the use of negotiated rulemaking when
    developing policies relating to tribal self-government, tribal trust
    resources, or tribal treaty rights. Agencies should avoid preempting
    tribal law. Agencies shall attempt to streamline the processes by which
    Indian tribes apply for waivers of statutory and regulatory
    requirements.
    Concerns about NIGC's Current ``Consultation'' Efforts
        Indian country has serious concerns about the failure of the NIGC
    and other core Federal agencies to appropriately consult and coordinate
    with tribal governments. As an independent agency, the NIGC has
    announced that it is not required to follow Executive Order No. 13175
    and has developed its own consultation policy. For its part, the NIGC
    has undertaken regulatory revisions without appropriate consultation:
          NIGC regulations on environment, public health and safety
    and facility licensing were revised without considering meeting with
    tribal governments and coordinate agencies that already work with
    tribes in these areas, such as EPA, IHS, CDC, BIA, etc.;
          Indian Gaming Regulatory Act Class II Indian gaming
    regulations are being revised with no cost/benefit analysis. The NIGC
    closed the notice and comment period on March 9, 2008 even though less
    than 40 working days prior that an independent economist produced a
    report for NIGC that demonstrated that the regulations would cost
    Indian tribes between $1.2 billion and $2.8 billion annually;
          NIGC failed to conduct a cost benefit analysis of the
    rule and viable alternatives prior to its publication in the Federal
    Register and wrongly rejected application of the Regulatory Flexibility
    Act; and
          IGRA Class II definition regulations are being revised
    even though the Federal Courts have already approved the NIGC
    regulations that were issued in 2002!
    In all of these cases, proper consultation and respect for tribal self-
    government would result in better results for Indian country and the
    nation as a whole.
        The NIGC denies they must follow the Regulatory Flexibility Act
    even though its economic analysis of the Class II regulations indicates
    that there could be an impact of between $1.2 billion and $2.8 billion
    annually. That's clearly a major economic impact on Indian tribes and
    Indian communities. The NIGC should have considered the cost and
    benefits of retaining the current Class II definition regulation--that
    would have reduced the impact considerably.
        NIGC commissions and de-commissions Federal Advisory Committees at
    will, without regard to the oversight of GAO. Just last month, the NIGC
    did away with its Minimum Internal Control Standards Tribal Advisory
    Committee (MICS TAC) and the Technical Standards Tribal Advisory
    Committee (TTAC). There is now a perception in Indian country that the
    NIGC is changing the criteria (at least 5 years as a tribal regulator)
    to eliminate the views of elected tribal officials and tribal gaming
    operators and create a new Tribal Advisory Committee that is stacked
    with regulators who are handpicked to favor NIGC views.
        Indeed, the NIGC appears to be reluctant to follow many of the
    general guidelines that constrain other agencies. Executive Order No.
    12866 and OMB Circular No. A-4 directive to Executive agencies on
    ``Regulatory Analysis'' indicate that the NIGC should have considered
    whether it was necessary to promulgate these Class II Regulations.
    Under these guidelines, the NIGC should have seriously considered the
    alternative of using the statutory terms ``electro-mechanical
    facsimile,'' rather than develop a new regulation and perhaps more
    significantly, should have considered the possibility of simply
    maintaining the existing regulatory definitions, which were approved by
    the 8th Circuit Federal Court of Appeals in U.S. v. Santee Sioux Tribe.
    9 Yet, the NIGC appears to reject the application of these
    and other executive guidelines because it is an independent agency.
    Clearly, a statutory direction to NIGC to consult with Indian tribes is
    in order.
    ---------------------------------------------------------------------------
        \9\ 324 F.3d 607, 615-617 (8th Cir. 2003) (Relying on the existing
    Class II regulations, the Court found that ``NIGC's conclusion that
    Lucky Tab II is a permissible class II gaming device seems to be a
    reasonable interpretation of the IGRA'').
    ---------------------------------------------------------------------------
    Conclusion
        In 1960, President Kennedy recognized that too often Indian tribes
    had been made promises that were later broken:
            Recently we have seen some very fine policy pronouncements from
            the Secretary of the Interior. But the Secretary's words have
            time and again been belied by the actions of the leadership of
            the Bureau of Indian Affairs. Indians have heard fine words and
            promises long enough. They are right in asking for deeds.
    See John F. Kennedy Letter, above. Today, Indian tribes face the same
    problem with the NIGC concerning consultation. Five years ago, tribal
    governments asked the Senate Committee on Indian Affairs to require the
    NIGC to follow Executive Order No. 13175 as a statutory directive
    because the NIGC claimed exemption from the consultation order based
    upon its status as an independent agency. At that time, the NIGC
    declared that it would write its own consultation policy. Now,
    experience has shown that the NIGC needs to have a statutory directive
    on consultation--otherwise it will simply give in to its bias against
    tribal government institutions and in favor of Federal rulemaking.
        When Indian policy is left up to the bureaucracy to decide, as
    President Reagan explained,
            [T]here has been more rhetoric than action. Instead of
            fostering and encouraging self-government, Federal policies
            have by and large inhibited the political and economic
            development of tribes. Excessive regulation and self-
            perpetuating bureaucracy have stifled local decision making,
            thwarted Indian control of Indian resources, and promoted
            dependency rather than self-sufficiency....
        We commend the Committee for its work on this bill. We respectfully
    request that Congress take action to ensure that tribal governments are
    heard during the development of federal regulations. H.R. 5608 should
    be enacted into law.