I 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Consultation and Co5 ordination With Indian Tribal Governments Act’’. 


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1 SEC. 2. DEFINITIONS. 

2 For purposes of this Act: 

3 (1) ACCOUNTABLE CONSULTATION PROCESS.— 

4 The term ‘‘accountable consultation process’’ means 

5 a process of government-to-government dialogue be6 tween the agency and Indian tribes to ensure mean7 ingful and timely input by tribal officials in the for8 mulating, amending, implementing, or recinding one 

9 or more policies that have tribal implications. The 

10 process shall ensure, at a minimum, the following: 

11 (A) That tribal officials have ample oppor12 tunity to provide input and recommendations to 

13 the agencies regarding formulating, amending, 

14 implementing, or recinding policies that have 

15 tribal implications. 

16 (B) That tribal input and recommenda17 tions are fully considered by the agency before 

18 policies that have tribal implications are formu19 lated, amended, implemented, or recinded. 

20 (C) That, upon the formulation, amend21 ment, implementation, or recision of policies 

22 that have tribal implications, tribal officials 

23 shall be provided with written notification of the 

24 formulation, amendment, implementation, or re25 cision of such policies and given a copy of those 

26 policies. 


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1 (D) That any policies that have tribal im2 plications shall not become effective until at 

3 least 60 days after written notification to tribal 

4 officials pursuant to subparagraph (D). 

5 (2) AGENCY.—The term ‘‘agency’’ means the 

6 Department of the Interior, the Indian Health Serv7 ice, and the National Indian Gaming Commission. 

8 (3) INDIAN TRIBE.—The term ‘‘Indian tribe’’ 

9 means an Indian or Alaska Native tribe, band, na10 tion, pueblo, village, or community that the Sec11 retary of the Interior acknowledges to exist as an In12 dian tribe pursuant to the Federally Recognized In13 dian Tribe List Act of 1994 (25 U.S.C. 479a). 

14 (4) POLICIES THAT HAVE TRIBAL IMPLICA15 TIONS.—The term ‘‘policies that have tribal implica16 tions’’ means any measure by the agency that has 

17 or is likely to have a direct effect on one or more 

18 Indian tribes, on the relationship between the Fed19 eral Government and Indian tribes, or on the dis20 tribution of power and responsibilities between the 

21 Federal Government and Indian tribes, such as reg22 ulations, legislative comments or proposed legisla23 tion, and other policy statements or actions, guid24 ance, clarification, standards, or sets of principles. 


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1 (5) TRIBAL OFFICIALS.—The term ‘‘tribal offi2 cials’’ means elected or duly appointed officials of 

3 Indian tribal governments, or their designees. 

4 SEC. 3. FUNDAMENTAL PRINCIPLES. 

5 When formulating, amending, implementing, or 

6 recinding one or more policies that have tribal implica7 tions, an agency shall be guided by the following funda8 mental principles: 

9 (1) The United States has a unique legal and 

10 political relationship with Indian tribal governments 

11 as set forth in the Constitution of the United States, 

12 treaties, statutes, Executive orders, and court deci13 sions. The Federal Government has enacted numer14 ous statutes and promulgated numerous regulations 

15 that establish and define a trust relationship with 

16 Indian tribes. 

17 (2) Our Nation, under the law of the United 

18 States, in accordance with treaties, statutes, Execu19 tive orders, and judicial decisions, has recognized the 

20 right of Indian tribes to self-government. Indian 

21 tribes exercise inherent sovereign powers over their 

22 members and territory. The United States continues 

23 to work with Indian tribes on a government-to-gov24 ernment basis to address issues concerning Indian 


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1 tribal self-government, tribal trust resources, and In2 dian tribal treaty and other rights. 

3 (3) The United States recognizes the right of 

4 Indian tribes to self-government and supports tribal 

5 sovereignty and self-determination. 

6 SEC. 4. POLICYMAKING CRITERIA. 

7 In addition to adhering to the fundamental principles 

8 set forth in section 3, when formulating, amending, imple9 menting, or recinding one or more policies that have tribal 

10 implications each agency shall adhere to the following cri11 teria: 

12 (1) Each agency shall respect Indian tribal self13 government and sovereignty, honor tribal treaty and 

14 other rights, and strive to meet the responsibilities 

15 that arise from the unique legal and political rela16 tionship between the Federal Government and In17 dian tribal governments. 

18 (2) With respect to Federal statutes and regu19 lations administered by Indian tribal governments, 

20 each agency shall ensure Indian tribal governments 

21 the maximum administrative discretion possible. 

22 (3) Each agency shall— 

23 (A) encourage Indian tribes to develop 

24 their own policies to achieve program objectives; 


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1 (B) to the extent they do not violate other 

2 applicable laws, defer to Indian tribes to estab3 lish standards; and 

4 (C) in determining whether to establish 

5 Federal standards, consult with tribal officials 

6 as to the need for Federal standards and any 

7 alternatives that would limit the scope of Fed8 eral standards or otherwise preserve the prerog9 atives and authority of Indian tribes. 

10 SEC. 5. CONSULTATION. 

11 Each agency shall have an accountable consultation 

12 process. Not later than 30 days after the date of the enact13 ment of this Act, the head of each agency shall designate 

14 an official with principal responsibility for the agency’s im15 plementation of this Act. Not later than 60 days after the 

16 date of the enactment of this Act, the designated official 

17 shall submit a description of the agency’s accountable con18 sultation process to the Committee on Natural Resources 

19 of the House of Representative and the Committee on In20 dian Affairs of the Senate. 

21 SEC. 6. UNFUNDED MANDATES. 

22 To the extent practicable and permitted by law, no 

23 agency shall formulate, amend, or implement any policy 

24 that has tribal implications that imposes substantial direct 


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1 compliance costs on Indian tribal governments and is not 

2 required by Federal law unless— 

3 (1) funds necessary to pay the substantial di4 rect costs incurred by the Indian tribal government 

5 or the Indian tribe in complying with the policy are 

6 provided by the Federal Government; or 

7 (2) the agency, before the implementation of 

8 the policy— 

9 (A) consulted through the accountable con10 sultation process with tribal officials early in 

11 the process of developing the proposed policy; 

12 and 

13 (B) in a separately identified portion of the 

14 preamble to the policy, provided to the Com15 mittee on Natural Resources of the House of 

16 Representative, the Committee on Indian Af17 fairs of the Senate, and affected Indian tribes 

18 a tribal summary impact statement con19 taining— 

20 (i) a description of the extent of the 

21 agency’s prior consultation with tribal offi22 cials; 

23 (ii) a summary of the nature of the 

24 concerns of the tribal officials and the 


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1 agency’s position supporting the need to 

2 issue the regulation; and 

3 (iii) a statement of the extent to 

4 which the concerns of tribal officials have 

5 been met. 

6 SEC. 7. TRIBAL SELF-GOVERNMENT, TRIBAL TRUST RE7 SOURCES, OR INDIAN TRIBAL TREATY AND 

8 OTHER RIGHTS. 

9 On issues relating to tribal self-government, tribal 

10 trust resources, or Indian tribal treaty and other rights, 

11 each agency shall explore and, where appropriate, use con12 sensual mechanisms for developing policies, including con13 sideration of negotiated rulemaking. 

14 SEC. 8. PREEMPTION OF TRIBAL LAW. 

15 To the extent practicable and permitted by law, no 

16 agency shall establish or implement any policy that has 

17 tribal implications and that preempts tribal law unless the 

18 agency, before the implementation of the policy— 

19 (1) consulted through the accountable consulta20 tion process with tribal officials in development of 

21 the proposed policy; and 

22 (2) in a separately identified portion of the pre23 amble to the policy, provided to the Committee on 

24 Natural Resources of the House of Representative, 

25 the Committee on Indian Affairs of the Senate, and 


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1 affected Indian tribes a tribal summary impact 

2 statement containing— 

3 (A) a description of the extent of the agen4 cy’s prior consultation with tribal officials; 

5 (B) a summary of the nature of the con6 cerns of the tribal officials and the agency’s po7 sition supporting the need to issue the regula8 tion; and 

9 (C) a statement of the extent to which the 

10 concerns of tribal officials have been met. 

11 SEC. 9. INCREASING FLEXIBILITY FOR INDIAN TRIBAL 

12 WAIVERS. 

13 (a) REVIEW; STREAMLINING OF WAIVER PROCESS.— 

14 Each agency shall review the processes under which In15 dian tribes apply for waivers of statutory and regulatory 

16 requirements and take appropriate steps to streamline 

17 those processes. 

18 (b) FLEXIBLE POLICY APPROACHES.—Each agency 

19 shall, to the extent practicable and not in violation with 

20 other Federal laws, consider any application by an Indian 

21 tribe for a waiver of statutory or regulatory requirements 

22 in connection with any program administered by the agen23 cy with a general view toward increasing opportunities for 

24 using flexible policy approaches at the Indian tribal level 

25 in cases in which the proposed waiver is consistent with 


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1 the applicable Federal policy objectives and is otherwise 

2 appropriate. 

3 (c) DECISION ON APPLICATION FOR WAIVER.—Each 

4 agency shall, to the extent practicable and not in violation 

5 with other Federal laws, render a decision upon a complete 

6 application for a waiver not later than 120 days of receipt 

7 of such application by the agency, or as otherwise provided 

8 by Federal law or regulation. If the application for waiver 

9 is not granted, the agency shall provide the applicant with 

10 timely written notice of the decision and the reasons there11 for. 

12 (d) APPLICABILITY OF SECTION.—This section ap13 plies only to statutory or regulatory requirements that are 

14 discretionary and subject to waiver by the agency. 

Æ 


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