[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5608 Introduced in House (IH)]
110th CONGRESS
2d Session
H. R. 5608
To establish regular and meaningful consultation and collaboration with
tribal officials in the development of Federal policies that have
tribal implications, to strengthen the United States government-to-
government relationships with Indian tribes, and to reduce the
imposition of unfunded mandates upon Indian tribes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
March 13, 2008
Mr. Rahall (for himself and Mr. Kildee) introduced the following bill;
which was referred to the Committee on Natural Resources
_______________________________________________________________________
A BILL
To establish regular and meaningful consultation and collaboration with
tribal officials in the development of Federal policies that have
tribal implications, to strengthen the United States government-to-
government relationships with Indian tribes, and to reduce the
imposition of unfunded mandates upon Indian tribes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Consultation and Coordination With
Indian Tribal Governments Act''.
SEC. 2. DEFINITIONS.
For purposes of this Act:
(1) Accountable consultation process.--The term
``accountable consultation process'' means a process of
government-to-government dialogue between the agency and Indian
tribes to ensure meaningful and timely input by tribal
officials in the formulating, amending, implementing, or
recinding one or more policies that have tribal implications.
The process shall ensure, at a minimum, the following:
(A) That tribal officials have ample opportunity to
provide input and recommendations to the agencies
regarding formulating, amending, implementing, or
recinding policies that have tribal implications.
(B) That tribal input and recommendations are fully
considered by the agency before policies that have
tribal implications are formulated, amended,
implemented, or recinded.
(C) That, upon the formulation, amendment,
implementation, or recision of policies that have
tribal implications, tribal officials shall be provided
with written notification of the formulation,
amendment, implementation, or recision of such policies
and given a copy of those policies.
(D) That any policies that have tribal implications
shall not become effective until at least 60 days after
written notification to tribal officials pursuant to
subparagraph (D).
(2) Agency.--The term ``agency'' means the Department of
the Interior, the Indian Health Service, and the National
Indian Gaming Commission.
(3) Indian tribe.--The term ``Indian tribe'' means an
Indian or Alaska Native tribe, band, nation, pueblo, village,
or community that the Secretary of the Interior acknowledges to
exist as an Indian tribe pursuant to the Federally Recognized
Indian Tribe List Act of 1994 (25 U.S.C. 479a).
(4) Policies that have tribal implications.--The term
``policies that have tribal implications'' means any measure by
the agency that has or is likely to have a direct effect on one
or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian
tribes, such as regulations, legislative comments or proposed
legislation, and other policy statements or actions, guidance,
clarification, standards, or sets of principles.
(5) Tribal officials.--The term ``tribal officials'' means
elected or duly appointed officials of Indian tribal
governments, or their designees.
SEC. 3. FUNDAMENTAL PRINCIPLES.
When formulating, amending, implementing, or recinding one or more
policies that have tribal implications, an agency shall be guided by
the following fundamental principles:
(1) The United States has a unique legal and political
relationship with Indian tribal governments as set forth in the
Constitution of the United States, treaties, statutes,
Executive orders, and court decisions. The Federal Government
has enacted numerous statutes and promulgated numerous
regulations that establish and define a trust relationship with
Indian tribes.
(2) Our Nation, under the law of the United States, in
accordance with treaties, statutes, Executive orders, and
judicial decisions, has recognized the right of Indian tribes
to self-government. Indian tribes exercise inherent sovereign
powers over their members and territory. The United States
continues to work with Indian tribes on a government-to-
government basis to address issues concerning Indian tribal
self-government, tribal trust resources, and Indian tribal
treaty and other rights.
(3) The United States recognizes the right of Indian tribes
to self-government and supports tribal sovereignty and self-
determination.
SEC. 4. POLICYMAKING CRITERIA.
In addition to adhering to the fundamental principles set forth in
section 3, when formulating, amending, implementing, or recinding one
or more policies that have tribal implications each agency shall adhere
to the following criteria:
(1) Each agency shall respect Indian tribal self-government
and sovereignty, honor tribal treaty and other rights, and
strive to meet the responsibilities that arise from the unique
legal and political relationship between the Federal Government
and Indian tribal governments.
(2) With respect to Federal statutes and regulations
administered by Indian tribal governments, each agency shall
ensure Indian tribal governments the maximum administrative
discretion possible.
(3) Each agency shall--
(A) encourage Indian tribes to develop their own
policies to achieve program objectives;
(B) to the extent they do not violate other
applicable laws, defer to Indian tribes to establish
standards; and
(C) in determining whether to establish Federal
standards, consult with tribal officials as to the need
for Federal standards and any alternatives that would
limit the scope of Federal standards or otherwise
preserve the prerogatives and authority of Indian
tribes.
SEC. 5. CONSULTATION.
Each agency shall have an accountable consultation process. Not
later than 30 days after the date of the enactment of this Act, the
head of each agency shall designate an official with principal
responsibility for the agency's implementation of this Act. Not later
than 60 days after the date of the enactment of this Act, the
designated official shall submit a description of the agency's
accountable consultation process to the Committee on Natural Resources
of the House of Representative and the Committee on Indian Affairs of
the Senate.
SEC. 6. UNFUNDED MANDATES.
To the extent practicable and permitted by law, no agency shall
formulate, amend, or implement any policy that has tribal implications
that imposes substantial direct compliance costs on Indian tribal
governments and is not required by Federal law unless--
(1) funds necessary to pay the substantial direct costs
incurred by the Indian tribal government or the Indian tribe in
complying with the policy are provided by the Federal
Government; or
(2) the agency, before the implementation of the policy--
(A) consulted through the accountable consultation
process with tribal officials early in the process of
developing the proposed policy; and
(B) in a separately identified portion of the
preamble to the policy, provided to the Committee on
Natural Resources of the House of Representative, the
Committee on Indian Affairs of the Senate, and affected
Indian tribes a tribal summary impact statement
containing--
(i) a description of the extent of the
agency's prior consultation with tribal
officials;
(ii) a summary of the nature of the
concerns of the tribal officials and the
agency's position supporting the need to issue
the regulation; and
(iii) a statement of the extent to which
the concerns of tribal officials have been met.
SEC. 7. TRIBAL SELF-GOVERNMENT, TRIBAL TRUST RESOURCES, OR INDIAN
TRIBAL TREATY AND OTHER RIGHTS.
On issues relating to tribal self-government, tribal trust
resources, or Indian tribal treaty and other rights, each agency shall
explore and, where appropriate, use consensual mechanisms for
developing policies, including consideration of negotiated rulemaking.
SEC. 8. PREEMPTION OF TRIBAL LAW.
To the extent practicable and permitted by law, no agency shall
establish or implement any policy that has tribal implications and that
preempts tribal law unless the agency, before the implementation of the
policy--
(1) consulted through the accountable consultation process
with tribal officials in development of the proposed policy;
and
(2) in a separately identified portion of the preamble to
the policy, provided to the Committee on Natural Resources of
the House of Representative, the Committee on Indian Affairs of
the Senate, and affected Indian tribes a tribal summary impact
statement containing--
(A) a description of the extent of the agency's
prior consultation with tribal officials;
(B) a summary of the nature of the concerns of the
tribal officials and the agency's position supporting
the need to issue the regulation; and
(C) a statement of the extent to which the concerns
of tribal officials have been met.
SEC. 9. INCREASING FLEXIBILITY FOR INDIAN TRIBAL WAIVERS.
(a) Review; Streamlining of Waiver Process.--Each agency shall
review the processes under which Indian tribes apply for waivers of
statutory and regulatory requirements and take appropriate steps to
streamline those processes.
(b) Flexible Policy Approaches.--Each agency shall, to the extent
practicable and not in violation with other Federal laws, consider any
application by an Indian tribe for a waiver of statutory or regulatory
requirements in connection with any program administered by the agency
with a general view toward increasing opportunities for using flexible
policy approaches at the Indian tribal level in cases in which the
proposed waiver is consistent with the applicable Federal policy
objectives and is otherwise appropriate.
(c) Decision on Application for Waiver.--Each agency shall, to the
extent practicable and not in violation with other Federal laws, render
a decision upon a complete application for a waiver not later than 120
days of receipt of such application by the agency, or as otherwise
provided by Federal law or regulation. If the application for waiver is
not granted, the agency shall provide the applicant with timely written
notice of the decision and the reasons therefor.
(d) Applicability of Section.--This section applies only to
statutory or regulatory requirements that are discretionary and subject
to waiver by the agency.
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