**Testimony of**

**James Cason**

**Associate Deputy Secretary**

**Department of the Interior**

**Before the**

**Committee on Resources**

**United States House of Representatives**

**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.**

** **

**April 9, 2008**

 

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]{.underline}**

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.

[]{.mark}

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]{.underline}**

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]{.underline}**

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]{.underline}**

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]{.underline}**

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]{.underline}**

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]{.underline}**

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.