Practicality vs. feasibility

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Between the extremes on consultation process

WASHINGTON - Recent congressional hearings on consultation between tribes and federal agencies left an impression of polarization. At one extreme, federal officials argued for practicality, defying reformers to maintain a view that making cumbersome law out of the current informal consultation process would improve it - though it would certainly slow it down. At the other extreme, tribal leaders could list the occasions when federal agencies have taken advantage of nebulous consultation standards to spring unwelcome decisions on tribes, which then have to bear the indignity and expense of living with them even as they plot to repeal them.

Phil Hogen, chairman of the National Indian Gaming Commission and a tribal citizen of the Oglala Sioux, seemed to advance the federal case for a light touch in reform. Tribes, he implied, are not as interested in the consultation process as in its outcome. When they don't agree with the results of a consultation process, NIGC hears about it at length, he said, as in the case of potential new Class II gaming regulations that have been five years in the making.

In contrast, he added, when tribes favor an NIGC decision, they don't complain about lack of consultation. The example he gave was a recent NIGC decision to reduce the fees NIGC collects from tribes for its upkeep - not a peep of protest on that one, according to Hogen, even though NIGC made the decision without a lot of input from tribes.

Raymond Orr, a Citizen Pottawatomi political scientist at the University of California - Berkeley, in Washington as a consultant, didn't attend the congressional hearings and declined comment on anyone's testimony. But he perceived some room for backing off the extremes as described above.

Orr considers the tribal commitment to the consultation process sociologically significant.

''They want satisfaction from negotiating and getting what they want, because those options were often not available in the past. They want an equal relationship, particularly with regard to the desire for a just process. The desire for a just outcome, sometimes despite shortcomings in the process that produces it, just shows that Indians are like anyone else. ... The unsatisfying part can be at the end, when there can be a sense of estrangement even so, because the outcome is just in their perspective but in the process, they weren't treated as equals.''

Concerning federal pleas for practicality, Orr said there's a real tendency in Indian country (though not only there) to think of politics as rights, infusing consultation with an absolutist quality.

''Politics often require the utilitarian approach.''