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Testimony of

Gerald Danforth, Chairman

Oneida Business Committee

Oneida Tribe of Indians of Wisconsin

On behalf of the Oneida Tribe of Indians of Wisconsin, I am pleased to
be with you today to present our views concerning HR 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]{.underline}
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.

April 7, 2008