Statement of U.S. Rep. Nick J. Rahall, II

Chairman, Committee on Natural Resources

Legislative Hearing on H.R. 5608 (Rahall D-WV),

H.R. 3522 (T. Udall D-NM), H.R. 3490 (Radanovich R-CA),

S. 2457 (Lieberman I-CT), and H.R. 5680 (Grijalva D-AZ)

April 9, 2008

The Committee is meeting today to receive testimony on several bills of interest to Indian tribes: H.R. 5608, H.R. 3522, H.R. 3490, S. 2457 and H.R. 5680. 

H.R. 5608, the "Consultation and Coordination with Tribal Governments Act" is a measure I introduced with my dear friend Congressman Dale Kildee. 

There is a maxim from ancient Roman law regarding the need for consultation.  I will not attempt the Latin but it translates to - What touches all must be approved by all. 

When it comes to issues affecting Indian Country, it seems almost everyone, with the exception of the Administration, understands what this means.  It means that Indian tribes are governments and as such must be consulted with - not dictated to.

My bill simply requires that Federal agencies establish a consultation process that is to be used prior to taking an action that would have a direct effect on Indian tribes.  It tracks an Executive Order President Clinton issued in 2000.

Now, I expect we will hear opposition to this bill from the Administration.  That it is too costly, or somehow unworkable, unnecessary, and generally difficult to implement.   Yet, I think tribes will say that having new mandates forced upon them is costly, unworkable, unnecessary and generally very difficult to implement.

Throughout history, when Indian policy has been made without tribal input, the results have been failure after failure.  When Indian tribes are consulted and made a part of the process up front, the results are successful policies. 

I wish it were not necessary to have this legislation.  But time after time, this Administration has set out new policies and mandates with no consultation whatsoever - or maybe even worse - sending out letters notifying tribes of soon to be announced policies and calling that action "consultation."

On January 3 of this year, the Bureau of Indian Affairs released a memorandum containing what was called, "Guidance on taking off-reservation land into trust for gaming purposes."  It instituted a never before discussed or heard of, "commutable distance test" to every land into trust application where the land being acquired is a "commutable" distance from the current reservation.

Then immediately the next day, several pending land into trust applications were denied.  The very next day!  The BIA can sure move quickly when it wants to.

Land into trust applications lie around for years - a new policy - oh, excuse me, new "guidance" is released, and BAM, the next day letters go out disapproving several applications. 

Now, I am not saying that taking land into trust far from a reservation is not a valid issue.  But there is no law or regulation opposing it and it is a valid issue for discussion, for consultation.  I cannot say whether or not those applications were worthy, but I can say that the Indian tribes who spent time and money on them are worthy of consultation.

Another example of the need for this legislation occurred when the National Indian Gaming Commission issued proposed regulations to redefine Class Two operations without adequate tribal consultation.  The Commission then released an economic impact study which showed that their proposed regulations would negatively impact the revenues of Indian tribes.  My understanding is these proposed regulations are even today still under consideration by the Commission.

This disregard for working with tribes in meaningful consultation is not working and it is not fair.

The Committee has invited the witnesses here today to testify on this legislation.  And I promise you that we will listen to what you have to say and take your positions and recommendations seriously.

Thank you.