Consultation proves difficult for reformers, practitioners


WASHINGTON - It;s bound to happen someday. Someday, federal agency officials - regularly called up as whipping posts when Congress demands reform in Indian country - are bound to win a round.

For a while, it seemed that April 9 might be the day.

Rep. Nick Rahall, D-W.Va., chairman of the Natural Resources Committee in the House of Representatives, and Rep. Dale Kildee, D-Mich., fellow committee member also with a presence in Indian affairs, introduced legislation in response to a January ''Guidance Memorandum'' from the Interior Department on the land-into-trust process. The bill's departure point was an executive order of former President Bill Clinton, enjoining consultation with tribes on federal agencies when their decisions are likely to have a substantial direct effect on the tribes in question.

Many tribes rate taking land into federal trust status as a linchpin of prosperity; yet the guidance memo promulgated an unprecedented new standard one day, and the BIA acted on it the next, all without immediate prior consultation with tribes. Interior's BIA assistant secretary for Indian affairs, Carl Artman, explained to Congress that the guidance memo was not a new rule or policy but simply guidance, and as such did not require a consultation process.

At the April 9 hearing on House Bill 5608, his ''Consultation and Coordination with Tribal Governments Act,'' Rahall scoffed at the process that produced the guidance memo.

''The BIA can sure move quickly when it wants to. Land-into-trust applications lie around for years. A new policy - excuse me, new 'guidance' - is released, and bam - the next day, letters go out disapproving several applications. ... 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.''

With a buildup like that, and many tribes likewise fired up against the guidance memo, the time seemed right for reform.

But an hour later, three agency officials had made a case for the practicality of the current informal consultation process. James Cason, associate deputy secretary at Interior, told Rahall the department already complies with the Clinton executive order, 13175 by number. But by making statutory law of an executive order intended to guide the department's internal affairs, he said, H.R. 5608 overreaches.

''Under the legislation, the department [Interior] would be required to formally consult with any tribe upon which the action has or is likely to have a direct effect. This is a fundamental and far-reaching change from the wording of E.O. 13175, which requires consultation, whether formal or informal, with any tribe upon which the action would have a substantial direct effect.''

It would paralyze Interior, Cason emphasized several times over. He added that under provisions of the proposed bill, his own April 9 testimony would not have been lawfully possible for months.

Phil Hogen, chairman of the National Indian Gaming Commission, said that consultation is not agreement, and should not be judged on its good faith or effectiveness by whether agreement is reached.

''Experience has shown that there is little or no clamor for consultation if the action being considered is favorably received throughout the Indian gaming industry. ... It does not seem fair or just that the only consultation deemed adequate is that in which the commission always fully comports with tribal points of view.''

Finally, Robert G. McSwain, acting director of the IHS, said H.R. 5608, if enacted, would force IHS to spend so much money on consultation that its delivery of services would suffer. In addition, he said it is unnecessary because IHS already saturates Indian country with consultation - ''eight advisory committees and work groups comprised of tribal leaders and/or their representatives ... regional consultation sessions ... the national annual tribal budget and policy consultation session'' - and more besides.

According to a former high-ranking federal agency official, IHS couldn't have been happy to be empanelled as a witness with Interior and the NIGC. Speaking on condition of anonymity (he feared offending former colleagues), the current legislative adviser said Interior and the NIGC take a position ahead of time and simply go through the motions of consultation.

As examples, he adduced a statement by Cason to the effect that consultation on Interior's ''Guidance Memorandum'' carried over from previous discussions on different but related issues, as if it were always a given with Interior, on certain issues anyway, that tribes have nothing new to add. Maybe consultation on the commutable distance standard (the most controversial item of the guidance memo) goes back to the Indian Reorganization Act, he suggested. That would be 1934.

Of Hogen, he said he always goes to tribal consultation meetings with his position established, takes up as much of the allotted time as possible expounding on current issues, and hears out the few minutes left for tribes to make their positions known. After multiple performances like that, tribes have begun to resent being led to believe there is ever a chance of influencing NIGC policy.

With such hints of an intellectual flexibility problem surfacing at Interior and NIGC, the testimony of three tribal leaders made it clear the agencies, despite a good start, weren't going to get their winning round on this day. Navajo Nation President Joe Shirley Jr. said that decisions are routinely made in Washington ''with little meaningful consultation with tribal governments.''

''We are left to adapt to the vacillating policy choices made by Washington bureaucrats regardless of our individual needs or priorities. Unfortunately for most tribal governments, adapting to these changes usually means that we make do with less as our needs continue to grow. ... The worst of all situations is when tribal delegations are convened to inform us of a decision already made, just so the agency can check off its tribal consultation box,'' Shirley said.

Buford Rolin, chairman of the Poarch Band of Creek Indians, emphasized the value of genuine consultation, especially at IHS. With Rahall asking for amendments to improve the bill, Rolin said the strict consultation policy of H.R. 5608 should apply to all federal agencies, but at a minimum to all agencies within the IHS parent department, Health and Human Services.

Gerald Danforth, chairman of the Oneida Business Committee of the Oneida Tribe of Indians of Wisconsin, took strong issue with Hogen's notion that NIGC ''institutional memory'' on a set of failed regulations for Class II gaming in 2004 constitutes consultation on new Class II gaming regulations proposed in 2007.

Danforth said that because tribal governments are responsible and have formed associations for swift action, genuine consultation will not paralyze federal agencies. ''In fact, the failure of proper consultation is what leads to a delay in implementing new regulations due to an assortment of legal challenges that might otherwise be avoided under true consultation processes.''