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BIA to issue consultation policy

WASHINGTON - The BIA is preparing to sign a new policy on government-to-government consultation with Indian tribes after months of negotiations with tribal leaders and representatives.

The bureau will unveil the new policy at a signing ceremony in Seattle, Dec. 13, a policy that for the first time was drafted by a tribal leaders' workgroup and the BIA.

"The new consultation policy calls on the BIA to communicate with tribes as early as possible on any federal action the bureau may take which affects tribes," said Robert Chicks, chairman of Stockbridge Munsee and co-chairman of the Tribal Workgroup on Government-to-Government Consultation.

The BIA's draft policy states that the purpose of the consultation policy is to "set forth appropriate guidelines that are understood and adhered to by all parties." The policy also deals with how tribal comments will be handled, how work assignments will be allocated and schedules set, how the consultation will be designed, and the length of the consultation process. The policy also explains how a federal action will be implemented, how bureau employees will be educated on the consultation process, and the procedure for monitoring the performance of the bureau.

The Tribal Leaders Workgroup was established in Washington, D.C., at the National Congress of American Indians Executive Council Winter Session in February. The purpose of the group was to draft a consultation policy for the BIA. The workgroup was comprised of 12 tribal leaders from the 12 BIA regions. Co-chairmen are W. Ron Allen, chairman of the Jamestown S'klallam Tribe, and Chicks.

The workgroup has held four meetings since February, one each in Las Vegas and Seattle and two in the capital. During the NCAI Mid-Year Session in Juneau, Alaska, the Workgroup distributed a draft to the tribes. Comments were collected and incorporated into a draft policy and submitted to the bureau for comment.

In an October meeting the BIA responded to the workgroup's draft, generating concern from some tribal leaders that the bureau was weakening the language. Later that month, the tribal workgroup submitted comments and a memorandum expressing concern over the BIA changes, saying some changes diminished the policy and undermined the president's recently signed executive order on consultation.

That order was issued to establish permanent and meaningful consultation with tribes in development of federal policies that impact tribal governments. The president issued the new order to expand on provisions in his 1998 Executive Order on Consultation and Coordination With Tribal Governments. In the memorandum responding to the BIA's changes, the workgroup cited the new executive order and the importance of incorporating its language, as well as concerns over the weakness of language, the training of BIA employees regarding consultation, monitoring agency compliance with the new policy, and tribal participation in the drafting of regulations.

With the tribes' recent experience in working with the BIA on new regulations in a number of areas, many in the workgroup emphasized negotiated rule-making as a necessary element in the drafting of regulations which affect tribal governments.

"The workgroup is concerned about the BIA's statements in the Federal Register," said Chicks. "The current executive order requires that the tribes have meaningful and timely input in the development of regulatory polices that affect them."

While there has been some disagreement between the BIA and the workgroup in drafting the final consultation policy, the bureau plans to push ahead, seeing the signing as an expansion of a good policy and a major accomplishment of the outgoing administration.

"An open process creates better and more efficient consultation," said Kevin Gover, assistant secretary for Indian Affairs. "This was something I felt should be done before I leave."