[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
        [email protected]         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:]

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[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:
---------------------------------------------------------------------------
    \2\ A. Josephy, The Patriot Chiefs (1961) at 178.
---------------------------------------------------------------------------
        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
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \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.

                                 
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