### OCTIO 1/20 12/MON 

## 05: 14 PM Iowa 

## Tribe Admin FAX No. 4055471032 P. 001

October 1,2012

Dee Alexander, Senior Advisor Office ofLegislative and Intergovernmental Affairs Department ofCommerce, Room 5422 1401 Constitution Ave., 

### NW Washington, DC 20230 Re: Proposed TribalConsuhation and Coordination Policy; DOC-2012-0002 

### Dear Ms. Alexander: The IowaTribe ofOklahoma (the '"Tribe") is pleased to submit the fullowing comments onthe Department ofCommerce's (the "Department") Proposed Tnoal Consultation Policy ("Draft Policy"), which establishes the 

### manner in whichthe Department will consult withtnoes on decisions, actions, and policies withtribal implications. 

### The Iowa Tnbe ofOklahoma is 

### a federally recognized Indian tribe organized 

### under a constitution and bylaws approved by the Secretary ofthe Interior on September 22, 1937 and ratified bythe Tribe on October 23, 1937, whosejurisdictional territory encompasses all or parts ofPayn,e, Oklahoma, Lincoln, and Logan counties in the StateofOklahoma. The Tnoe owns and operates several business enterprises, including the Cimarron Casmo m Perkins, Oklahoma, and Bah:.Kho-Je Solutions, which operates 

### as a business division ofthe Tribe. These and other tnbally owned business enterprises provide employment opportunities fur tribal members and serve as an important source ofrevenue fur the tribal economy. The Tribe appreciates this opportunityto share our views onthe Department's Draft Policy and offer suggestions for improving the Policy_ Beforeproviding our Spe9ific comments, however, we would 

### like to 

### comment generallyon the overall approachtaken in the Draft Policy, whichwe believerepresents a good 

### startingpoint for discussion, but would benefit from :fu.rther clarification

## and greater detail. While the Draft Policy succeeds in providing a basic skeletal overview ofthe overall tribal consultationprocess, it fails to providereal, meaningful guidatice onhow the actual consultationprocess is to be carried out and iooplemented byDepartment personnel. For instance, Section 7(02)(c) simplyprovides that "[tJhe Department and operating units will notify Tribes ofpolicies that have mbal implications," but does not specify any time:fi:aroes or give 

### any indication as to whenthe dutyto notify 

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Moreover, many sections ofthe Draft Policy simplyparapbrase sections ofExecutive Order 13175 instead ofbuilding and expandinguponthebasic consultationrequirements ofthat Executive Order. We believe the Department's consultationpolicy should go beyond the basic mandates inExecutive Order 

### 13175 and maximize opportunities for collaboration and coordination on matters ofmutual importance. We therefore urge the Department to seize

### this opportunityto develop a consultation policy that not only facilitates the**exchang~** ofinformation between the Department and mbal governments, but also encourage8 and invite8 a more collaborative and robust communications process premised on 

### trust, respect, and shared responsibility.

J For your consideration, we haveprovided cbmments and suggestions fur improving the Draft Policyusing the same section numbers 

### as the Draft Policy fur ease ofreference: 

### Section 1. Introduction



### • 01. Webelieve the introduction to the Draft Policy should include clear statements regarding the inherent sovereignty oftribal governments and their right to selfgovernment and self-determination. The introductoryparagraphs serve an important function in setting the context and backdrop against whichthe Policy is to be interpreted and implemented. 

### It should thus include language recognizing tribal governments as sovereignnations withthe right to make their own laws and beruled bythem. In addition, language should be added clarifying that the mbal consultation process is to be approached on a government-to-government basis with due regard, respect, and deference fur the sovereignpowers, rights, and authority oftn"bal governments. We believe such prefatory language is both appropriate and necessaryto help setthe proper tone for the. Policy.


### • 0.4. The Draft 

### Policy states that federal agencies are required to have 

### an accountable process to ensure meaningful and timely 

### input bytrIbal 0 fficials. 

### In our view, consultation is a dynamic and collaborative process bywhichtribal governments participate in federal decision-making processes; it thus requires much more than input bytnbal officials. For there to be meaningful consultation, the Department must 

### do more thanjust ''listen'' to tribal input, but actually acconunodate

### mba! issues and concerns to the maximum eAtent permitted bylaw. Wetherefurebelieve the tenn "input" should be replaced with ''participate/' whichmore accurately describes the role oftribal officials 

### in the consultative process. Section 4. Definitions

• 01. The definition of"Consultation" in the 

### Draft Policy is simply a reiteration ofthe definition used in Ex.ecutive Order 13175. We believe the Draft Policywouldbenefit from a more robust definition that 

### will provide meaningful guidance to Department personnel regarding the desired intent and goals ofconsultation. At a minimum, the ( amended defInition should incorporate the following 

### keyprinciples ofconsultation:
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o Consultation is a process which enables tribes to participate 

### in federal decision makingbefure an agency takes an**actio~** or commits to a decision to consider an action orpolicy with tribalnnplications.
o Consultation 

### is not a single act ofcommunicationbut rather a process involving multiple steps which culminate 

### in

### an outcome that reflects theviews, needs, and objectives ofboth federal and tribal participants.
o Consultation 

### is triggered when the Department considers "policies that have mbal implications," as that term is defmed in Executive Order 13175, orwhen.the Department considers

### proposals fur regulations, rulemaking, legislation, guidance, policy formulation or actions that may have a substantial direct effect onone or more tribes, onthe relationship betweentribes and the federal government, or onthe distribution of power and responsibilities between the tribes and the federal government.

o Consultation may be initiated bytribal governments to discuss and exchange information on a government-to-government basis.


### o Consultation 

### can be formal with established 

### time lines and required publications, or less furmal throughmeans such

## as teleconferencing.



### • 06. The definition of''Tribal officials" should be broadened to include official delegates who are designated as such bytheir tnbes. Such change would ensure that individuals who have been authorized to consult onbehalfoftheir tribe 

### will be accorded the same statUs as elected or duly appointed officials. 

### Section 5. Roles and Responsibilities for Consultations

• O1.c. This section states that the "Tribal Consultation Official" will engage tribal officials 

### mperiodic dialogue to discuss the Department's implementation ofthis Policy" (emphasis added). We believe the term "periodic" is problematic as it is not only vague, but it also implies that such dialogue will occur on a less than ftequent basis. Although 

### we understand that the Tribal Consuhation Official may be limited 

### interms oftnne and resourGe5 with respect to this dialogue withtribal officials, we believe the more appropriateterminology would be ''meaningful dialogue" 

### as opposed to "periodic dialogue."

• 02. AccOrding to the Draft Policy, the head ofeach operating unit will designate an official inthe headquarters office who will haveprimaryresponsibility for ensuring compliance with this Policywithin their respective units. That designated official will work withthe Department Tribal Consultation Official to ensure coordination oftnbal consultations, 

### as necessary. Because such coordination will be keyto the success ofthe Department's consultative activities, we believ;e the Draft Policy should include minimumresponsibilities that will need to be assigned and fulfilled by either the Tnoal
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# .. .

Consultation Official or designated officials 

### inthe operating units. At a mmimutn such responsibilities should mclude:

o Responding to inquiries fromtdbes about a specific consultation

-**past~** ongoing, orproposed;

o Responding to inquiries about the consultation process 

### in general;

o ReceivIDg requests from tribes seekingto initiate consultation;

o Coordinating to identify and screen for potential consultation issues;

o Preserving and maintaining complete consultation records;

o Assisting tnbal governments seeking to access consultationrecords; and

o Receiving post-consultation complaints, objections, and alleged inconsistencies. 

### Section 7. Consultation

• 01. Indescnbing the consultation process, the Draft Policy states thatthe Tnbal Consultation Official or head ofthe operating unit "will make a reasonable effort to accommodate a tribal request fur consultation." Webelieve the use ofa reasonableness standard in relation to the Department's responsibility to accommodate tribal requests fur consultation 

### is inappropriate and inconsistent withthe purposes and goals oftncal consultation. We recommend removing 

### the "reasonable effort" language and rep1a.ciug it with a procedure fur confirming receipt ofa tribal request for consUltation and submitting a reply within a certaintime period.

• 02.b. This section states that "[tJhe Department and operating units will make a 

### reasonable effortto identify 

### and provide timely and accurate infurmation fur**consultation~'** (emphasis added). We are concerned bythe use ofthe**"reasonabl~ess"** standard 

### in tbis section, which is an inappropriate standard for gauging the Department's efibrts to identify and provide timely and accurate infonnation fur consultation. Furthermore, we are concerned that thereasonableness standard could be interpreted and applied differentlybydifferent examining Department officials in different contexts. To provide greater clarity and consistency, we would recommend removing the reasonableness standard and replacing it with a specifictimeframe within which infonnation for consultation will have to beprovided to tribal governments.

• 02.c. While the Draft Policy states that the Department will notify Tribes ofpolicies that have tribal implications, it does notclarify the true starting point ofconsultation, Which we believe to be the point at whichthe Department is identifYing the undedymg problems, issues, or matters ofconcern to determine whether a proposal is evennecessary in the fIrst place. Early tribal participation at 

### this stage ofthe decision-making process can. be critical in deciding whether to proceed with a proposal or abandon it in light of Page4of6

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..**~** "



### new information that suchproposal is unwarranted or urmecessary. Using a proposed solution or action as the startingpoint ofconsultation can work to undermine the consultation process by allowing a preconceived agenda to dominate the consultation. By fOCllSIDg in onthe problem early in the consultationprocess, boththe Department and tribal governments canwork together 

### in considering 

### all possible**altematives~** 

### including the alternative ofno further action. ,We therefore recommend clarifying 

### inthe Draft Policythat consultationwill be initiated when the Department identifies a problem that may have to be addressed, and that the Department will seek tribal participation 

### in the Department's deliberative process when making decisions aboutthenecessity ofa proposed action.

• 02.d. We are concerned bythe language in this sectionwhich states that "[t]he Department and operating units**wil~** when**practical~** 

### allow Tnbes a reasonable amount of time to prepare for consultation and submit their views onpolicies that have tnbal implications" (emphasis added). As a general rule, tribal governments should always be afforded a reasonable amount oftimeto prepare fur consultation and submit their views during the consultationprocess. Bylimiting the Department's obligations to tribal governments withthe phrase "whenpractical," the Department undennines the intent and meaning oftribal consultation, as well as the special governmentytowgovemment relationship between the federal government and tribes. The Department should amend this sectionto affttm the Department's commitment to being as flexible as possible to allow sufficient time for mbal governments to adequately review and analyze matters during the consultation process.

• 02.e. Webelieve the requirement inthis section to provide tribal officials with a**funna~** 

### written communication that summarizes the consultation and responds to issues and concerns 

### is an important element ofthe consultation process. Accountability

- both internally and externally

- and transparency willprove critical to the success ofthe Department's consultation policy. Nonetheless, webelieve this section could be further improved by incorporating a timeframe within which anywritten communications following a consultation must be made available to mbal officials. 

### In addition7 we believe any post-consultation written communication should do more than merely summarize the issues and concerns raised during consultation; 

### it should indicate whether the Department will be accepting a suggested tribal position orprovide an explanation as to the Department'sdetemrination. Such additional informationwill help fuster greater collaboration and mutualrespect between federal and tribal officials.

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# .. .

In conclusion, the Tribe would like to reiterate its appreciation fur the opportunityto provide comments onthe Department's Draft Policy. The Tribe is encouraged bythe Department's 

### efforts to work with 

### mbalgovernments 

### in developing 

### a mutually beneficial framework for 

### tubal consultation and 

### looks furward to working with the Department on a 

### government-to-government basis 

### in this important endeavor. Sincerely,

# q~LtfLe.~.Jk Janice Rowe-Kurak- "'­ I 

### Chan-man IowaTnbe ofOklahoma

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