HR 5608 - Consultation and Coordination With Indian Tribal Governments Act

HR 5608

110th CONGRESS
2d Session

H. R. 5608

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

IN THE HOUSE OF REPRESENTATIVES

March 13, 2008

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

A BILL

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

SECTION 1. SHORT TITLE.

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

SEC. 2. DEFINITIONS.

For purposes of this Act:

(1) ACCOUNTABLE CONSULTATION PROCESS- The term `accountable consultation process' means a process of government-to-government dialogue between the agency and Indian tribes to ensure meaningful and timely input by tribal officials in the formulating, amending, implementing, or recinding one or more policies that have tribal implications. The process shall ensure, at a minimum, the following:

(A) That tribal officials have ample opportunity to provide input and recommendations to the agencies regarding formulating, amending, implementing, or recinding policies that have tribal implications.

(B) That tribal input and recommendations are fully considered by the agency before policies that have tribal implications are formulated, amended, implemented, or recinded.

(C) That, upon the formulation, amendment, implementation, or recision of policies that have tribal implications, tribal officials shall be provided with written notification of the formulation, amendment, implementation, or recision of such policies and given a copy of those policies.

(D) That any policies that have tribal implications shall not become effective until at least 60 days after written notification to tribal officials pursuant to subparagraph (D).

(2) AGENCY- The term `agency' means the Department of the Interior, the Indian Health Service, and the National Indian Gaming Commission.

(3) INDIAN TRIBE- The term `Indian tribe' means an Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe pursuant to the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a).

(4) POLICIES THAT HAVE TRIBAL IMPLICATIONS- The term `policies that have tribal implications' means any measure by the agency that has or is likely to have a direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, such as regulations, legislative comments or proposed legislation, and other policy statements or actions, guidance, clarification, standards, or sets of principles.

(5) TRIBAL OFFICIALS- The term `tribal officials' means elected or duly appointed officials of Indian tribal governments, or their designees.

SEC. 3. FUNDAMENTAL PRINCIPLES.

When formulating, amending, implementing, or recinding one or more policies that have tribal implications, an agency shall be guided by the following fundamental principles:

(1) The United States has a unique legal and political relationship with Indian tribal governments as set forth in the Constitution of the United States, treaties, statutes, Executive orders, and court decisions. The Federal Government has enacted numerous statutes and promulgated numerous regulations that establish and define a trust relationship with Indian tribes.

(2) Our Nation, under the law of the United States, in accordance with treaties, statutes, Executive orders, and judicial decisions, has recognized the right of Indian tribes to self-government. Indian tribes exercise inherent sovereign powers over their members and territory. The United States continues to work with Indian tribes on a government-to-government basis to address issues concerning Indian tribal self-government, tribal trust resources, and Indian tribal treaty and other rights.

(3) The United States recognizes the right of Indian tribes to self-government and supports tribal sovereignty and self-determination.

SEC. 4. POLICYMAKING CRITERIA.

In addition to adhering to the fundamental principles set forth in section 3, when formulating, amending, implementing, or recinding one or more policies that have tribal implications each agency shall adhere to the following criteria:

(1) Each agency shall respect Indian tribal self-government and sovereignty, honor tribal treaty and other rights, and strive to meet the responsibilities that arise from the unique legal and political relationship between the Federal Government and Indian tribal governments.

(2) With respect to Federal statutes and regulations administered by Indian tribal governments, each agency shall ensure Indian tribal governments the maximum administrative discretion possible.

(3) Each agency shall--

(A) encourage Indian tribes to develop their own policies to achieve program objectives;

(B) to the extent they do not violate other applicable laws, defer to Indian tribes to establish standards; and

(C) in determining whether to establish Federal standards, consult with tribal officials as to the need for Federal standards and any alternatives that would limit the scope of Federal standards or otherwise preserve the prerogatives and authority of Indian tribes.

SEC. 5. CONSULTATION.

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

SEC. 6. UNFUNDED MANDATES.

To the extent practicable and permitted by law, no agency shall formulate, amend, or implement any policy that has tribal implications that imposes substantial direct compliance costs on Indian tribal governments and is not required by Federal law unless--

(1) funds necessary to pay the substantial direct costs incurred by the Indian tribal government or the Indian tribe in complying with the policy are provided by the Federal Government; or

(2) the agency, before the implementation of the policy--

(A) consulted through the accountable consultation process with tribal officials early in the process of developing the proposed policy; and

(B) in a separately identified portion of the preamble to the policy, provided to the Committee on Natural Resources of the House of Representative, the Committee on Indian Affairs of the Senate, and affected Indian tribes a tribal summary impact statement containing--

(i) a description of the extent of the agency's prior consultation with tribal officials;

(ii) a summary of the nature of the concerns of the tribal officials and the agency's position supporting the need to issue the regulation; and

(iii) a statement of the extent to which the concerns of tribal officials have been met.

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

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

SEC. 8. PREEMPTION OF TRIBAL LAW.

To the extent practicable and permitted by law, no agency shall establish or implement any policy that has tribal implications and that preempts tribal law unless the agency, before the implementation of the policy--

(1) consulted through the accountable consultation process with tribal officials in development of the proposed policy; and

(2) in a separately identified portion of the preamble to the policy, provided to the Committee on Natural Resources of the House of Representative, the Committee on Indian Affairs of the Senate, and affected Indian tribes a tribal summary impact statement containing--

(A) a description of the extent of the agency's prior consultation with tribal officials;

(B) a summary of the nature of the concerns of the tribal officials and the agency's position supporting the need to issue the regulation; and

SEC. 9. INCREASING FLEXIBILITY FOR INDIAN TRIBAL WAIVERS.

(a) Review; Streamlining of Waiver Process- Each agency shall review the processes under which Indian tribes apply for waivers of statutory and regulatory requirements and take appropriate steps to streamline those processes.

(b) Flexible Policy Approaches- Each agency shall, to the extent practicable and not in violation with other Federal laws, consider any application by an Indian tribe for a waiver of statutory or regulatory requirements in connection with any program administered by the agency with a general view toward increasing opportunities for using flexible policy approaches at the Indian tribal level in cases in which the proposed waiver is consistent with the applicable Federal policy objectives and is otherwise appropriate.

(c) Decision on Application for Waiver- Each agency shall, to the extent practicable and not in violation with other Federal laws, render a decision upon a complete application for a waiver not later than 120 days of receipt of such application by the agency, or as otherwise provided by Federal law or regulation. If the application for waiver is not granted, the agency shall provide the applicant with timely written notice of the decision and the reasons therefor.

(d) Applicability of Section- This section applies only to statutory or regulatory requirements that are discretionary and subject to waiver by the agency.

END