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 Iowa Tribe ofOklahoma (the '"Tribe") is pleased to submit the fullowing comments 

on the Department ofCommerce's (the "Department") Proposed Tnoal Consultation Policy 

("Draft Policy"), which establishes the manner in which the Department will consult with tnoes 

on decisions, actions, and policies with tribal 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 by the Tribe on October 23, 1937, whose jurisdictional territory encompasses all or parts 

ofPayn,e, Oklahoma, Lincoln, and Logan counties in the State ofOklahoma. 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 opportunity to share our views on the Department's Draft 

Policy and offer suggestions for improving the Policy_ Before providing our Spe9ific comments, 

however, we would like to comment generally on the overall approach taken in the Draft Policy, 

which we believe represents a good starting point 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 consultation process, it fails to provide real, meaningful guidatice 

on how the actual consultation process is to be carried out and iooplemented by Department 

personnel. For instance, Section 7(02)(c) simply provides 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 when the duty to notify 'Will be triggered. 

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Moreover, many sections ofthe Draft Policy simplyparapbrase sections ofExecutive 

Order 13175 instead ofbuilding and expanding upon the basic consultation requirements ofthat 

Executive Order. We believe the Department's consultation policy should go beyond the basic 

mandates in Executive Order 13175 and maximize opportunities for collaboration and 

coordination on matters ofmutual importance. We therefore urge the Department to seize this 

opportunity to 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 have provided cbmments and suggestions fur improving the 

Draft Policy using the same section numbers as the Draft Policy fur ease ofreference: 

Section 1. Introduction 

• 	 01. We believe 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 introductory paragraphs serve an important 

function in setting the context and backdrop against which the Policy is to be interpreted 

and implemented. It should thus include language recognizing tribal governments as 

sovereign nations with the right to make their own laws and be ruled by them. 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 sovereign powers, rights, and authority oftn"bal governments. We believe such 

prefatory language is both appropriate and necessary to help set the 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 by trIbal 0 fficials. In our view, 

consultation is a dynamic and collaborative process by whichtribal governments 

participate in federal decision-making processes; it thus requires much more than input 

by tnbal officials. For there to be meaningful consultation, the Department must do more 

than just ''listen'' to tribal input, but actually acconunodate mba! issues and concerns to 

the maximum eAtent permitted by law. Wetherefure believe the tenn "input" should be 

replaced with ''participate/' which more 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 Policy would benefit 

from a more robust definition that will provide meaningful guidance to Department 

personnel regarding the desired intent and goals of consultation. At a minimum, the ( 

amended defInition should incorporate the following key principles ofconsultation: 

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o 	 Consultation is a process which enables tribes to participate in federal decision 

making befure an agency takes an actio~ or commits to a decision to consider an 

action or policy with tribalnnplications. 

o 	 Consultation is not a single act ofcommunication but rather a process involving 

multiple steps which culminate in an outcome that reflects the views, 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, or when.the 

Department considers proposals fur regulations, rulemaking, legislation, 

guidance, policy formulation or actions that may have a substantial direct effect 

on one or more tribes, on the relationship between tribes and the federal 

government, or on the distribution ofpower and responsibilities between the 

tribes and the federal government. 

o 	 Consultation may be initiated by tribal 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 through means such as teleconferencing. 

• 	 06. The definition of''Tribal officials" should be broadened to include official delegates 

who are designated as such by their tnbes. Such change would ensure that individuals 

who have been authorized to consult on behalfoftheir 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 in terms oftnne and 

resourGe5 with respect to this dialogue with tribal officials, we believe the more 

appropriate terminology would be ''meaningful dialogue" as opposed to "periodic 

dialogue." 

• 	 02. AccOrding to the Draft Policy, the head of each operating unit will designate an 

official in the headquarters office who will have primary responsibility for ensuring 

compliance with this Policy within their respective units. That designated official will 

work with the Department Tribal Consultation Official to ensure coordination oftnbal 

consultations, as necessary. Because such coordination will be key to the success ofthe 

Department's consultative activities, we believ;e the Draft Policy should include 

minimum responsibilities that will need to be assigned and fulfilled by either the Tnoal 

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Consultation Official or designated officials in the operating units. At a mmimutn such 

responsibilities should mclude: 

o 	 Responding to inquiries from tdbes about a specific consultation - past~ ongoing, 

or proposed; 

o 	 Responding to inquiries about the consultation process in general; 

o 	 ReceivIDg requests from tribes seeking to 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 consultation records; and 

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

Section 7. Consultation 

• 	 01. In descnbing the consultation process, the Draft Policy states that the Tnbal 

Consultation Official or head ofthe operating unit "will make a reasonable effort to 

accommodate a tribal request fur consultation." We believe the use of a reasonableness 

standard in relation to the Department's responsibility to accommodate tribal requests fur 

consultation is inappropriate and inconsistent with the 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 certain time period. 

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

reasonable effort to identify and provide timely and accurate infurmation fur 

consultation~' (emphasis added). We are concerned by the 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 the reasonableness standard could be interpreted and 

applied differently by different examining Department officials in different contexts. To 

provide greater clarity and consistency, we would recommend removing the 

reasonableness standard and replacing it with a specific timeframe within which 

infonnation for consultation will have to be provided to tribal governments. 

• 	 02.c. While the Draft Policy states that the Department will notify Tribes ofpolicies that 

have tribal implications, it does not clarify the true starting point of consultation, Which 

we believe to be the point at which the Department is identifYing the undedymg 

problems, issues, or matters of concern to determine whether a proposal is even necessary 

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 

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new information that such proposal is unwarranted or urmecessary. Using a proposed 

solution or action as the starting point of consultation can work to undermine the 

consultation process by allowing a preconceived agenda to dominate the consultation. 

By fOCllSIDg in on the problem early in the consultation process, both the Department and 

tribal governments can work together in considering all possible altematives~ including 

the alternative ofno further action. ,We therefore recommend clarifying in the Draft 

Policy that consultation will 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 aboutthe necessity ofa 

proposed action. 

• 	 02.d. We are concerned by the language in this section which 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 on policies that have tnbal 

implications" (emphasis added). As a general rule, tribal governments should always be 

afforded a reasonable amount oftime to prepare fur consultation and submit their views 

during the consultation process. By limiting the Department's obligations to tribal 

governments with the phrase "when practical," 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 section to 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. We believe the requirement in this 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 will prove critical to the success ofthe 

Department's consultation policy. Nonetheless, we believe this section could be further 

improved by incorporating a timeframe within which any written 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 or provide an explanation as 

to the Department'sdetemrination. Such additional information will help fuster greater 

collaboration and mutual respect between federal and tribal officials. 

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In conclusion, the Tribe would like to reiterate its appreciation fur the opportunity to provide 

comments on the Department's Draft Policy. The Tribe is encouraged by the Department's 

efforts to work with mbal governments 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 

Iowa Tnbe ofOklahoma 

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