[Federal Register Volume 64, Number 7 (Tuesday, January 12, 1999)]
[Notices]
[Pages 2100-2107]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-643]
[[Page 2099]]
_______________________________________________________________________
Part VII
Federal Emergency Management Agency
_______________________________________________________________________
Statement of Considerations of Comments Received on Draft Agency Tribal
Policy; Notice
Federal Register / Vol. 64, No. 7 / Tuesday, January 12, 1999 /
Notices
[[Page 2100]]
FEDERAL EMERGENCY MANAGEMENT AGENCY
Statement of Considerations of Comments Received on Draft Agency
Tribal Policy
AGENCY: Federal Emergency Management Agency (FEMA).
ACTION: Notice; statement of considerations of comments received.
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SUMMARY: As a demonstration of the consultation process undertaken by
FEMA in the course of developing its final Policy on Government-to-
Government Relations with American Indian and Alaska Native Tribal
Governments, this Statement of Considerations allows interested parties
to understand the scope and nature of comments received on the draft
policy, as well as the Agency's disposition of these comments.
FOR FURTHER INFORMATION CONTACT: Kyle W. Blackman, Federal Emergency
Management Agency, 500 C Street SW., Washington, D.C. 20472, (202) 646-
2776 (e-mail) kyle.blackman@fema.gov.
SUPPLEMENTARY INFORMATION: FEMA pursued comments on its draft policy on
American Indian and Alaska Natives through three avenues: direct
correspondence, Federal Register publications (62 FR 61329, November
17, 1997, and 63 FR 7793, February 17, 1998), and consultation
sessions. We received written comments and recommendations from 66
respondents. In addition, more than 100 individuals participated in the
nine consultation sessions organized by FEMA. We incorporated the
transcripts of the consultation sessions into the official record of
the Agency's interactions on this policy and factored comments and
recommendations received through these sessions into the final policy
and into this statement of considerations. (A full record of the
Agency's policy development process is available for review at FEMA's
offices in Washington, D.C.).
Comments received from respondents on the draft policy fall into
three categories--policy recommendations (including editorial and
content issues); implementation issues; and general statements of
support or concern regarding the policy. We address comments received
through this process in this statement of considerations. We identify
respondents and their recommendations and provide the Agency's response
to the comments. We will address relevant issues associated with the
implementation of this policy that were identified through this process
in programmatic guidance and will provide copies of the issues to all
interested parties. We also made substantial editorial changes
recommended for clarity in the course of this policy review.
Section I of this statement of considerations provides general
statements regarding the policy and the actions of FEMA in undertaking
this effort. Some statements have been abbreviated without impact on
their intent or nature. Within Section II of this document, recurrent
issues are summarized and a summarized Agency response appears. In the
third and final part, we address detailed comments in a section-by-
section analysis of the policy. The sections analyzed correspond to the
Sections outlined in the draft policy published twice previously in the
Federal Register. As the direct result of recommended revisions, the
final policy sections do not correspond directly with those identified
in this statement of considerations.
I. General Statements About the Policy
(Colorado River Indian Tribes) ``We appreciate the attention that
FEMA is giving to the situation. We applaud and reiterate the concerns
expressed in your draft policy document.''
(Mni Sose Intertribal Water Rights Coalition, Inc.) ``Mni Sose
Intertribal Water Rights Coalition expresses appreciation and commends
the Federal Emergency Management Agency for its enlightened view of its
relationship with Indian Tribes.''
(National Congress of American Indians) ``NCAI appreciates FEMA's
effort and commends the agency for issuing its draft policy to tribal
governments for comment. Though the policy is long overdue, we believe
that the agency and tribal governments will benefit from a consistent
and dedicated collaborative effort, which can result from a formal
policy. FEMA has stated that its goal is to create a relationship,
which is flexible and dynamic enough to provide for the evolution of
partnerships between FEMA and tribal governments. NCA1 applauds such a
goal.''
(Mandan, Hidatsa, and Arikara Nation--Three Affiliated Tribes) ``I
would like to take this opportunity to thank you on behalf of the Three
Affiliated Tribes for providing financial assistance so diligently and
expeditiously to our members affected by the winter storms and spring
flood of 1997. It was a pleasure to work with a Federal agency that is
so efficient and concerned for the well being of people. We look
forward to working with you again on any other emergency situations.''
(The Confederated Salish and Kootenai Tribes of the Flathead
Nation) ``The Salish and Kootenai Tribes are encouraged with the
drafting of the Indian Policy by FEMA.''
(Crow Tribal Council) ``We do appreciate FEMA's efforts to develop
a partnership which is intended to be flexible and dynamic.''
(Douglas Indian Association Tribal Government) ``As a Federally
Recognized tribe, we appreciate the partnership described in the above
document. We also uphold the policy principles.''
(Narragansett Indian Tribe) ``The only comment that I have for the
draft FEMA Native American and Alaska Natives Policy is will this
policy solidify what the Narragansett Tribe has in place already with
FEMA. Other than that, the policy is very straight forward.''
(Prairie Island Indian Community) ``We have long been interested in
the development of such a policy that would enable your agency to work
with our tribe on a government-to-government basis * * * We look
forward to the implementation of the policy.''
(Division of Special Revenue, Department of Revenue Services, State
of Connecticut) ``In summary, as long as the FEMA policy is limited to
emergency management related issues [that do not conflict with
agreements the State has with Tribes] inclusion of interaction with
Tribal governments in times of disaster makes sense in coordinating and
implementing disaster or emergency preparedness, response and recovery
policies.''
(Disaster and Emergency Services Division, Department of Military
Affairs, State of Montana) ``MTDES is glad that FEMA is finally
addressing this issue formally and we hope to work in partnership with
FEMA in furthering the goals of this policy.''
(Bureau of Disaster Services, Military Division, State of Idaho)
``I am extremely interested in what effect this new policy will have on
the State of Idaho and its people.''
(Military Division, State of Idaho) ``Both Governor Batt and I will
be extremely interested in what effect this new FEMA policy will have
on the State of Idaho and its tribes.''
(International City/County Management Association) ``Overall the
principles under which all FEMA employees are to operate when working
with American Indian and Alaska Native tribal governments are strong
and comprehensive.''
(Northern Idaho Agency, Bureau of Indian Affairs, U.S. Department
of the
[[Page 2101]]
Interior) ``FEMA is to be congratulated for this undertaking as it
attempts to fulfill the trust responsibility of the United States and
its Agencies to deal with and treat with [sic] the several American
Indian Tribal Governments.''
(Eastern Area Office, Bureau of Indian Affairs, U.S. Department of
the Interior) ``I would like to commend [FEMA] for their hard work and
effort in drafting an Indian Policy Statement which reflects the
commitment of the Clinton Administration and FEMA to work with
Federally recognized Indian tribes on a government-to-government basis.
Congratulations on a job well done.''
(Billings Area Office, Bureau of Indian Affairs, U.S. Department of
the Interior) ``We are encouraged to see FEMA acknowledging its
fiduciary relationship and recognizing its trust responsibility to the
native people. Hopefully, the draft policy will only be the beginning
of a long overdue need to address the quandary Indian people are put in
when an emergency arises on the reservations.''
(Southern California Agency, Bureau of Indian Affairs, U.S.
Department of the Interior) ``We encourage FEMA to continue the
commitment of a government to government relationship with Federally
recognized Tribal governments.''
(The Mohegan Tribe) ``I have reviewed your [draft policy] and found
it to be well thought out and sensitive to the fact the Indian Tribes
are governments and should be dealt with as such. The Mohegan Tribe
would look forward to working with FEMA pursuant to the terms of the
draft policy statement.''
(Gila River Indian Community) ``A strong cooperative relationship
with FEMA would allow the Community to have access to technical
expertise and assistance, training and other opportunities as we
improve our own emergency management organization.''
(Kotlik Traditional Council) ``We believe that this policy would
serve to enhance the capability of all governments to prepare for and
respond to the realistic hazards we face, and to better protect our
community when disaster strikes.''
(Muskogee Area Office, Bureau of Indian Affairs, U.S. Department of
the Interior) ``The draft offers the flexibility of meeting the needs
of an existing government-to-government relationship between [FEMA] and
the tribes.''
(Horton Agency, Bureau of Indian Affairs, U.S. Department of the
Interior) ``The information contained in the draft is a good step
forward in working with tribes.''
(Office of the Governor, State of New Mexico) ``The attempt by FEMA
to recognize the need for improvement in the Federal interagency Tribal
partnership through improved planning, communication, coordination and
cooperation with respect to emergency management is to be commended.''
(State of Ohio Emergency Management Agency) ``We support your
efforts to provide disaster assistance, mitigation activities,
preparedness, response and recovery to these Tribal governments.''
(Commonwealth of Pennsylvania Emergency Management Agency) ``It is
important that [FEMA] maintains a partnership with many Tribal
governments and ensures a working relationship with them that is
consistent among all Tribal governments.''
(Commonwealth of Massachusetts Emergency Management Agency) ``I
have reviewed the draft American Indian and Alaska Native Policy and
Massachusetts concurs with the intent and content of the policy.''
(Office of the Governor, State of Hawaii) ``I commend the efforts
to reflect our President's and [FEMA's] commitment to a government to
government relationship with Federally recognized tribal governments.
Your new proposed policy sets the framework for a spirit of
partnership. The end result should be an enhanced capability to prepare
for and respond to disasters. In the long run, our communities will be
better protected.''
(Office of the Governor, State of Wisconsin) ``On behalf of the
Governor, I concur with the draft policy's overall intent. Governor
Thompson is pleased that FEMA has included language which recognizes
and encourages the importance of partnership between tribal, state, and
local governments to resolve issues of mutual concern relating to
emergency management.''
(Office of Indian Affairs, Office of the Governor, State of
Louisiana) ``The state is pleased with this draft and believes it
effectively addresses mutual emergency management concerns among
tribes, local governments, the state, and the Federal Government.''
(Department of Community Affairs, State of Florida) ``In the new
world of states entering into collaborative ``partnerships'' with FEMA,
it is only natural to establish the same working partnerships with
Native Americans. This should have a beneficial impact on future
disaster recovery operations involving Native Americans, including the
Seminole and Miccosukee Tribes of Florida.''
(Office of the Governor, State of Wyoming) ``The spirit of the
guidelines and the policy are very consistent with Wyoming's commitment
to partnerships and focusing emergency response at the local level.''
(Office of the State Fire Marshal, Department of Public Safety and
Corrections, State of Louisiana) ``I concur with Mr. Witt's belief that
problems in emergencies and disasters are often shared and the spirit
of partnership between equals and neighbors during these times often
serves the interest of both.''
(Emergency Management Section, Division of State Police, State of
New Jersey) ``This office shares your belief that partnerships between
individuals and organizations in preparing for and responding to
emergency situations can be beneficial to the interests of the
partners. [W]e support the spirit of cooperation and commitment FEMA is
bringing to its relationship with Native Americans. We feel this
cooperation is essential between all levels of government as we work to
develop and maintain the best possible capability to respond in time of
emergency.''
(Office of the Governor, State of Alaska) ``The state of Alaska has
no objection to adoption of the proposed policy.''
(Office of Emergency Management, Department of Local Affairs, State
of Colorado) ``Colorado is supportive of the policy as stated in the
draft, and of the nine underlying policy principles.''
(State of Georgia Emergency Management Agency) ``While Georgia does
not have any American Indian tribes covered under this policy we
believe the policy is equitable and especially appreciate your efforts
to include members of tribes, state and local governments in planning
efforts and to enlist them as partners in the decision making
process.''
(State of California Governor's Office of Emergency Services)
``FEMA has clarified for all native peoples--as well as to the states--
that the federal government will make the proper coordination with
native peoples a high priority. We support and encourage FEMA's effort
to clarify the relationship between Native Americans and the United
States government during disasters.''
(U.S. Virgin Islands Territorial Emergency Management Agency) ``I
have reviewed the draft document, and have found it to be a
satisfactory partnership agreement.''
(Caddo Indian Tribe of Oklahoma) ``I want to congratulate you on
your initiative to include American Indians and Alaska Natives in the
commenting period on your draft. I also want to
[[Page 2102]]
thank you for working with the tribes on a government-to-government
basis.''
(Mohegan Tribe) ``We think that the language in the policy respects
the government-to-government relationship. And it certainly reflects
that each tribe should decide what's best for them. It appears by your
language that you understand what [sovereignty] is and what our rights
are, and that we should expect that FEMA demonstrate that in how they
make policy.''
(The Hopi Tribe) ``I could not agree with you more that a policy
such as this will reinforce the importance of partnership between and
among all levels of government.''
(Quinault Indian Nation) ``As a self-governance tribe, Quinault in
particular appreciates your commitment to dealing with tribes on a
government-to-government basis. In return for your commitment, the
Quinault Indian Nation pledges to make every effort to establish and
promote a cooperative and effective working relationship with FEMA.''
(Pueblo of Zuni) ``We look forward to the incorporation of our
recommendations into the policy and to a stronger working relationship
with FEMA.''
(Fond Du Lac Reservation) ``Although no one expects an emergency of
the kind requiring us to work with FEMA staff, it is essential that
should such an emergency arise, the groundwork for swift and immediate
action has been established. The draft policy that we have reviewed
would establish this groundwork. We have reviewed the comments of the
Prairie Island Indian Community, and the National Congress of American
Indians * * * and find they have fully covered our concerns.''
II. Issues of Common Interest
Comment: Many respondents expressed concern about the recurring,
ambiguous phrases ``where appropriate'' and ``when appropriate'' and
recommended alternative language be inserted to reinforce and clarify
the intent.
Response: We agree that these statements give the mistaken
impression that personal judgments will dictate whether policy
principles are honored. In the final policy statement we revised these
statements to reflect that these principles will be followed ``to the
greatest extent practicable and to the extent permitted by law.'' This
language is consistent with that contained within President Clinton's
April 29, 1994, Policy Memorandum, ``Government-to-Government Relations
With Native American Tribal Governments,'' as well as the congressional
policies reflected in Public Law 93-638, Indian self-determination and
Education Assistance Act.
Comment: Several respondents recommended for consistency that
wherever ``American Indian and Alaska Native governments'' appears in
the policy that the statement be revised to ``American Indian and
Alaska Native tribal governments.''
Response: We agree. The final policy reflects these
recommendations.
Comment: Several respondents recommended that the definitions of
Indian Tribe and Tribal government within the policy be as consistent
as possible with definitions contained in existing statutes.
Response: We agree. The final policy reflects these
recommendations.
Comment: Several respondents wanted to know whether this policy
would allow tribal governments to request disaster declarations
directly from FEMA, rather than working through the State.
Response: We understand the interest in the implications for this
policy on the administration of the Federal disaster assistance
programs. However, the policy is consistent with the existing
authorities of the Agency. As we noted in the introductory section of
the policy, we do not intend the policy to alter or supersede existing
laws. Under the Robert T. Stafford Disaster Relief and Emergency
Assistance Act, as amended, 42 U.S.C. 5121 et reg., requests for
presidential disaster declarations must come from the Governor of the
State. Once a declaration has been made, however, Tribal governments
have the flexibility to decide between several options for working with
FEMA on the administration of disaster assistance programs.
Comment: Some respondents were concerned about how FEMA would make
determinations of who is an American Indian for purposes of providing
Individual Assistance during a Presidentially declared major disaster
or emergency.
Response: Individuals who are legally within this country,
regardless of their age, sex, religion, or race, are eligible to
receive Individual Assistance from FEMA if they reside within a
jurisdiction where the President has declared a major disaster or
emergency and is eligible to receive this program's assistance. This
includes American Indians. The Agency's Tribal policy will not have an
impact on current procedures for determining eligibility under this
program.
Comment: Some respondents asked whether pre-disaster preparedness
funding currently provided to States and local governments would be
reduced as the result of this policy.
Response: Our policy for American Indians and Alaska Natives
affirms the government-to-government policy commitments of the Clinton
Administration and other legal precedents. The policy focuses on
building partnerships with Tribal governments for the development and
maintenance of emergency management programs to address the hazards
these governments face. The policy outlines the communications
philosophy of the Agency with regard to these sovereign nations, yet
acknowledges that these interactions will occur within the existing
authorities and resources of the Agency. Therefore, we intend through
this policy to strengthen the communication and partnership between and
among Federal, State, Tribal, and local governments. We intend to build
these relationships in cooperation with State and local governments--
and not at their expense. Although additional resources may need to be
pursued in the future to implement this policy, we do not intend to
reduce funding provided to the States and local governments in order to
accomplish this.
Comment: On the issue of FEMA's commitment to a government-to-
government relationship, several respondents expressed their concern
that Tribal government requests for technical assistance not be
subordinated to the will of the State.
Response: As outlined in the policy, we believe that partnership
between and among all levels of government is in the interest of
disaster mitigation, preparedness, response and recovery. For this
reason, we encourage Tribal governments to develop strong working
relationships with local and State government entities. We believe that
the Agency's State and local partners possess resources and expertise
that could be of great value to tribal governments as they undertake
emergency management programs.
Comment: Several respondents were interested in broadening the
application of this policy to include State-recognized tribes.
Response: We disagree. Our policy is consistent with the
Administration's policy and remains only applicable to Federally
recognized Tribes.
Comment: Several respondents encouraged that FEMA Tribal liaison
position be staffed by an American Indian or Alaska Native.
Response: We are sensitive to this concern and interested in
employing staff who are representative of the interests we need to
serve. At this time,
[[Page 2103]]
however, the Agency Tribal Liaison positions in Headquarters and the
Regional Offices are an additional duty for existing employees.
Comment: Several respondents were concerned about the short notice
of the consultation sessions on the draft Agency policy and the
publication of the Federal Register Notice after two such sessions had
occurred.
Response: FEMA apologizes for the timing of the Federal Register
notice publication. The Agency wrote to all of the Federally recognized
Tribes in advance of the sessions to invite them to attend.
Comments: Several respondents suggested that FEMA present its final
policy at the National Congress of American Indians conference this
year.
Response: When the policy is final we hope to present and discuss
the policy with Tribal government leaders in various forums.
III. Section-By-Section Comments and Recommendations
A. Overall policy
Comment: ``[The President's] memorandum should be highlighted as a
central supporting document for this policy.'' (National Congress of
American Indians)
Response: We agree and we reorganized the final policy to mirror
the form and content of the President's Memorandum for the Heads of
Executive Departments and Agencies on ``Government-to-Government
Relations With Native American Tribal Governments.''
Comment: ``I would like to take this opportunity to express several
concerns regarding the policy as drafted because the policy only
addresses federally recognized tribes. If the FEMA policy is adopted,
the needs of many state recognized Indian tribes and Indian citizens
located in urban and rural communities through the United States will
not be addressed.'' (N.C. Commission of Indian Affairs, Department of
Administration, State of North Carolina)
Response: We understand the respondent's concerns, but remain firm
in our position that the policy must apply only to Federally recognized
American Indian and Alaska Native Tribal governments.
Comment: ``The Mni Sose Intertribal Water Rights Coalition
recommends that the Federal Emergency Management Agency address the
following items as part of its policy to deal with Indian Tribes and
Alaska Native Tribes: A. Annual consultation with the Tribes to remain
current on tribal preparedness status and tribal needs in emergency
response; B. To maintain a more efficient government-to-government
relationship that eliminates or reduces administrative barriers during
times of emergencies. In past experiences, Tribes have been required to
involve the Bureau of Indian Affairs to receive emergency aid and
relief; C. To implement plans between the Federal Emergency Management
Agency and tribal governments on matters of training and educational
preparedness; D. To assist in securing funding on each reservation or
on a regional basis for Tribal emergency and disaster preparedness
staff; E. Recognition of disaster declarations as made by Tribes and
Alaska Native Tribes through tribal government.'' (Mni Sose Intertribal
Water Rights Coalition).
Response: We are sensitive to the concerns the coalition expressed
and will assess these issues as the policy evolves.
Comment: ``Indian Nations deserve from FEMA, (in accordance with
its trust relationship), treatment at least equal to the support FEMA
gives to State and local/county governments for emergency management
infrastructure, including: funding for emergency management
coordinators, program support services, planning, training personnel,
communications, equipment and other standard emergency management
program needs. The secondary treatment given to Indian Nations, with
set aside grants, is far inferior to the standard emergency management
support traditionally and currently being offered to State and county
governments. Only true government-to-government relationships, similar
to State and local relationships, will meet the emergency management
needs of the Indian Nations. Then and only then will the FEMA American
Indian and Alaska Native Policy be a standard with real meaning, and
FEMA will meet its trust relationship goals.'' (The Confederated Salish
and Kootenai Tribes of the Flathead Nation)
Response: As with the other respondent's concerns, we understand
the issues raised but must adhere to existing legislation, regulations
and legal opinions.
Comment: ``[FEMA] must include policies which will provide more
meaningful involvement in protecting cultural and archeology sites.
Many tribes have historical ties with archeological sites that require
consultation prior to any disturbance. The policy must include policies
and procedures which promote priority protection for specific sites in
situ, and arrangements to assure adequate protection of known sites,
from future disturbances.'' (The Confederated Salish and Kootenai
Tribes of the Flathead Nation)
Response: We are very sensitive to the concerns expressed by the
Tribes and will assess these issues as the policy evolves.
Comment: ``We believe it is necessary to follow up on the Policy
with: funding for emergency management infrastructure; training and
education among non-Indian/non-Alaskan bureaucracies concerning Indian
Law and political rights; and goals and objectives designed to
implement the Policy.'' (Disaster and Emergency Services Division,
Department of Military Affairs, State of Montana)
Response: We are sensitive to the concerns expressed by the Montana
representative and will assess these issues as the policy evolves.
Comment: ``This policy, while meeting all the federal criteria for
working with the Tribes and recognizing their government status, has
the potential for excluding the state and local jurisdiction emergency
managers from the American Indian emergency management programs. This
is contrary to the way we respond to disasters. Our current approach is
based on neighbors helping neighbors, communities helping each other.''
(Emergency Management Division and Office of Indian Affairs, on behalf
of the Office of the Governor, State of Washington)
Response: We believe that cooperation and partnership between and
among Federal, State, Tribal, and local governments is essential in
emergency management and will emphasize and encourage that
relationship. We echo this philosophy in the final policy.
Comment: ``We recommend that the policy be revised to require FEMA
to consult with all state and federally recognized tribes during
natural disaster relief efforts. Furthermore, we recommend that the
FEMA policy be modified to require state governments to enter into
formal working agreements with Indian tribes to assure that disaster
relief efforts reach Indian communities.'' (N.C. Commission of Indian
Affairs, Department of Administration, State of North Carolina)
Response: We will extend consultation only to Federally recognized
Tribes. We will also evaluate the need for formal working agreements
between States and Indian Tribes on emergency management issues as the
policy evolves.
Comment: ``Mutual aid assistance agreements between local Federal
[[Page 2104]]
agencies (BIA, FEMA, and Tribes) need to be in place. These agreements
should also include the state and county emergency management
agencies.'' (Wind River Agency, Bureau of Indian Affairs, U.S.
Department of the Interior)
Response: We agree that mutual aid is important in response to
disasters but view this comment as an implementation issue.
Comment: ``After Tribal representatives attended a meeting hosted
by FEMA, our optimism was diminished. It became clear that the proposed
policy would not establish a true government to-government
relationship. In answer to questions and concerns raised by
participants, FEMA representatives admitted that, in fact,
implementation of the policy would result in no real change. It would
do very little to improve Indian Nation access to emergency assistance
or to improve working relationships between Indian Tribes and FEMA.''
(Gila River Indian Community)
Response: This final policy does represent a commitment by the
Agency to a government-to-government relationship with American Indian
and Alaska Native Tribal governments, to the extent legally feasible.
Comment: ``[The policy] talks about the interaction between
governments and tribal governments, or whatever, but there's no real
details on what is actually going to happen, it's just a--it's kind of
vague.'' (Mashantucket Pequot Tribal Nation)
Response: We understand the respondent's comment and we commit to
the development of materials explaining the nature of specific program
relationships with Tribal governments as part of the implementation of
this policy.
Comment: Add the following: ``All entities residing on, traveling
through, or doing business on Indian Lands are hereby put on notice and
this information will be sent to the appropriate groups that Indian
Lands are not public lands and that the various Indian Nations by
virtue of the long standing relationships that have been established
among the various Indian Nations and the Federal government interstate
commerce that any ingress and egress on Indian Lands even on public
highways, railroad lines, air transportation routes, etc. will
recognize the sovereign right of the various Indian Nations to regulate
and or restrict the use of, and or transportation of hazardous
materials and or substances across Indian Lands which could seriously
jeopardize the safety and welfare of Native Peoples and others residing
throughout the various Indian reservations in Indian country legally
termed `Indian Lands.' This is done in conformance with and in
accordance with and in support of previous Federal EPA Laws and
regulations which supports and emphasizes Indian rights' to regulate
environmental activities and transportation of hazardous substances
across and on Indian Lands.'' (Crow Tribal Council)
Response: We believe this comment by the Crow Tribal Council is
outside the purview of the policy and we have elected not to include
this statement in the final policy.
B. Introduction Section
Comment: ``Although the preamble to this policy mentions people
coming together in times of disaster, it is important to note that
Indian tribes are not just interested in disaster recovery assistance,
but also assistance in preparing for, planning for, and training for
disasters.'' (Prairie Island Indian Community)
Response: We agree and have revised the preamble to reflect the
full range of tile Agency's interests and mission.
Comment: ``Although some very good principles are cited, they could
be stronger and more specific, possibly referring to some of the policy
items which should be cited later in the document.'' (National Congress
of American Indians)
Response: We agree. We revised the Introduction to include the
policy principles.
Comment: ``The American Indian and Alaska Native tribal governments
hold a unique status in the United States with the rights and benefits
of [recommend language be inserted:] domestic dependent nations, with
governmental authority over both their members and their territory.''
(Douglas Indian Association Tribal Government)
Response: Although we elected to retain the original language, we
believe that other modifications in the introductory section of the
final policy address the Association's issue.
Comment: ``This policy pertains to Federally recognized tribes and
provides guidance to employees of the Federal Emergency Management
Agency for issues affecting American Indians and Alaska Natives,
[recommend language be inserted:] who are members of Federally
recognized tribes. Strike next sentence.'' (Douglas Indian Association
Tribal Government)
Response: We changed this sentence to be consistent with the scope
of the policy document, which is to address the Agency's relationship
with American Indian and Alaska Native Tribal governments rather than
to focus on individual Tribal members. We believe it is important to
emphasize that this policy does not extend to State-recognized Tribes,
and therefore we are retaining this statement in the final policy.
Comment: ``Within the Introduction, a sentence in the fourth
paragraph regarding working relationships between FEMA and Tribal
governments contains the statement, ``they will vary according to the
legal basis and management requirements for each relationship.'' We
have no idea what is meant by that statement. If FEMA intends to work
with federally recognized tribes on a government-to-government basis,
there is no need to vary that basis and therefore the statement should
be removed from the sentence.'' (Prairie Island Indian Community) and
``With regard to working relationships with tribal governments, FEMA
states in the Introduction that those relationships ``will vary
according to the legal basis and management requirements for each
relationship.'' This statement needs to be clarified since all
federally recognized tribes should be treated equally, while keeping in
mind the unique needs of each government.'' (National Congress of
American Indians)
Response: (To both comments) We agree with the concerns. We deleted
the original sentence and developed a statement that indicates the
Agency's desire for consistent relationships with Tribal governments
within the existing authorities and resources of the Agency.
Comment: ``This policy is adopted [recommend language insert:] to
support tribal self-government pursuant to and consistent with existing
law and does not pre-empt or modify * * * [recommend language insert:]
This policy does not diminish or modify existing tribal government
authority in any way. The Federal Emergency Management Agency has the
authority to work with tribal governments concerning emergency
management programs under existing law.'' (Douglas Indian Association
Tribal Government)
Response: We modified this language in the final policy in response
to this comment.
Comment: ``Currently, there exists in the courts, when interpreting
Indian Treaties, canons of constructions. The canons of construction
provide the courts with a way to interpret Treaties and statutes which
provide some certainty in the interpretations. I would recommend that
FEMA adopt these canons of construction be used as guidelines for the
Agency. By adoption of the canons of construction adopted
[[Page 2105]]
by the courts in the FEMA policy no rights will be granted or waived.
The cases which developed the canons include the following: Choctaw
Nation v. United States, 318 U.S. 423,431-432 (1943); Choate v. Trapp,
224 U.S. 665,675 (1912); United States v. Walker River Irrigation
District, 104 F. 2d 334, 337 (9th Cir. 1939); McClanahan v. Arizona
State Tax Commission, 411 U.S. 164, 174 (1973); Carpenter v. Shaw, 280
U.S. 363,367 (1930); Winters v. United States, 207 U.S. 564, 576-77
(1908); Choctaw Nation v. United States, 397 U.S. 620, 631 (1970);
United States v. Shoshone Tribe, 304 U.S. 111, 116 (1938); Jones v.
Meehan, 175 U.S. 1, 11 (1899); Worcester v. Georgia, 31 U.S. (6 Pet.)
515, 551-54, 582 (1832).'' (Northern Idaho Agency, Bureau of Indian
Affairs, U.S. Department of the Interior) and ``These are very positive
comments, yet, such an important policy statement merits further
explanation and supporting law. From the earliest days of this
republic, the United States has recognized the unique sovereign status
of Indian tribes (Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17
(1831). The Constitution recognizes tribal sovereignty by classifying
Indian treaties among the supreme Law of the land'' (Article VI, U.S.
Constitution) * * * The citing and inclusion of specific supporting
legal principles, such as those cited above, would clarify and
emphasize FEMA's fiduciary role in the government-to-government
relationship with American Indian and Alaska Native governments.''
(National Congress of American Indians)
Response: (To both comments) We elected not to include these
specific citations in the Agency's final policy. We chose instead to
acknowledge generally the body of legal precedents that exist to govern
the Federal government's relationship with Tribal governments.
Comment: ``We prefer wording that acknowledges the authority of the
Ho-Chunk Nation to govern and administer its own affairs * * * Nor does
the policy suggest recognition of tribal authority that does not
currently exist beyond the inherent attributes of sovereign tribal
authority (and/or any Federal law authority) which permit the exercise
of power to protect Tribal interests and advance the general welfare.''
(Ho-Chunk Nation Legislature)
Response: We agree with the intent of the proposed language. The
final policy reflects this recommendation.
Comment: ``Add language pertaining to the cultural differences and
sensitivities of American Indian and Alaska Native tribal governments
in reference to the interconnectedness of tribal communities, their
customs and religions, and how they view their environment, natural
hazards, and tribal lands.'' (International City/County Management
Association)
Response: We included language in the final policy that is
consistent with statements in the President's policy and addresses the
issues that the Association raised.
Comment: ``I would also recommend a statement which would repudiate
past practices of the Agency, if any, which would run counter to the
spirit of this policy.'' (Northern Idaho Agency, Bureau of Indian
Affairs, U.S. Department of the Interior)
Response: None.
C. Definition Section
Comment: ``These definitions are consistent with current policy
documents, federal programs, and congressional legislation. Broader
definitions are found in other federal initiatives, such as those
federal programs which provide services to State recognized tribes;
however, FEMA has restricted this policy to federally recognized
tribes.'' (National Congress of American Indians)
Response: None.
Comment: ``Add language explicitly referring to various forms of
local government including cities, counties, regional council of
governments, townships, [and] special districts.'' (International City/
County Management Association)
Response: We have incorporated this recommendation in the final
policy.
Comment: ``Something that is under your definitions * * * We deal
with the Bureau of Indian Affairs and Indian Health Services. We have a
category * * * which is programs, functions, services, activities and
other relationships * * * trying to get consistent terms throughout the
government.'' (United South and Eastern Tribes)
Response: We agree. We incorporated this language in the definition
of ``Indian Tribe'' in the final policy.
D. Principle on Government-to-Government Relations
Comment: ``The Ho-Chunk Nation actively exercises its rights in
this regard while at the same time keeping in mind the effect that such
exercise has upon its non-tribal residents, relatives, employees, and
its neighbors. We propose * * * The Federal Emergency Management Agency
further recognizes that each tribal government has the right to set its
own priorities and goals for the welfare of its membership, which
includes the considerations tribal governments make to fulfill their
responsibilities to their non-tribal residents, relatives, employees,
and neighbors, and that the Federal Emergency Management Agency will
deal with each tribal government, when appropriate as determined by
FEMA, to meet that tribe's needs.'' (Ho-Chunk Nation Legislature)
Response: We agree with much of the recommended language. We made
changes in the final policy, remaining mindful of other respondents,
concerns about the ``when appropriate'' phrase.
E. Principle on Acknowledging Policy Precedents
Comment: ``FEMA could improve this statement by referring directly
to the April 29, 1994 Memorandum which reaffirmed the United States'
`unique legal relationship with Native American tribal governments',
directing all executive departments and agencies of the Federal
Government that: `As executive departments and agencies undertake
activities affecting Native American tribal rights or trust resources,
such activities should be implemented in a knowledgeable, sensitive
manner respectful of tribal sovereignty.' '' (National Congress of
American Indians)
Response: We agree. We revised the policy to reflect these
recommendations.
Comment: ``Add the word ``and'' following Iroquois Confederacy of
Nations.'' (St. Regis Mohawk Tribe)
Response: We agree and made the change.
F. Principle Acknowledging the Trust Relationship
Comment: ``The State of Connecticut would be concerned that issues
which might affect areas addressed in the Tribal-State Compacts with
the Mashantucket Pequot and Mohegan Tribes may not be considered prior
to implementing policies that not only affect the Tribal governments
but may also have an impact on the State of Connecticut. Consultatiou
with the State of Connecticut should be provided for within the draft
policy should areas affecting the State's relationship with the Tribe
be impacted.'' (Division of Special Revenue, Department of Revenue
Services, State of Connecticut)
Response: We understand the State's concerns but believe that the
consultation we undertake with States is clearly articulated in other
Agency policies and regulations and we elected not to modify the final
policy.
Comment: Insert following ``trust responsibility'', ``for American
Indian
[[Page 2106]]
and Alaska Native tribes.'' (St. Regis Mohawk Tribe)
Response: We agree and we changed the language in the final policy.
G. Principle on Consultation with Tribal Governments
Comment: ``The Ho-Chunk Nation recognizes the rights of a large
number of people in addition to its membership. We take into account
the effects of Tribal action when such exercise of Tribal authority
results in direct and indirect consequences on our non-tribal
residents, relatives, employees, and neighbors. We propose * * * The
Federal Emergency Management Agency recognizes that, as a sovereign
government, the tribe is responsible for the welfare and rights of its
membership and also has responsibilities that extend to its non-tribal
residents, relatives, employees, and neighbors.'' (Ho-Chunk Nation
Legislature)
Comment: Reword as follows: ``The Federal Emergency Management
Agency recognizes that, as sovereign governments, American Indian
tribes and Alaska Native governments are responsible for the welfare
and rights of their membership.'' (St. Regis Mohawk Tribe)
Response: We agreed that the policy language needed to be revised.
The final policy includes these recommendations.
Comment: ``The State should seek a clear understanding of whether
or not the entire draft policy is limited to emergency management
issues.'' (Division of Special Revenue, Department of Revenue Services,
State of Connecticut)
Response: We want to reassure the Department of Revenue Services
that this policy only applies to the interactions of the Agency with
American Indian and Alaska Native Tribal governments on emergency
management programs.
H. Principle on Partnership Among All Levels of Government
Comment: ``We believe such statement sets forth a very laudable
goal; cooperation and coordination is a principle which should be
supported, and can be attained, once tribes have access to an equal
playing field.'' (National Congress of American Indians)
Response: We agree and believe that this is policy is an important
first step.
Comment: ``While we fully support this Policy Principle, FEMA must
proceed very cautiously. FEMA must always consult with the involved
Tribe first. That is, FEMA must not assume that the tribe would want to
work with the State or local governments * * * If a tribe requests a
meeting with FEMA or assistance from FEMA it is expected that just FEMA
will be involved, unless the Tribe specifically includes other
parties.'' (Prairie Island Indian Community)
Response: We understand the concerns expressed by the community and
will be sensitive to these issues.
Comment: Add this sentence at the end of the first paragraph:
``Respecting the government-to-government relationship and
acknowledging that in some instances it will not be possible to get a
full measure of cooperation FEMA is committed to providing the full
spectrum of emergency services to Tribes.'' (Mandan, Hidatsa, and
Arikara Nation--Three Affiliated Tribes)
Response: We believe that our stated commitment to a government-to-
government relationship suffices, and that the purpose of this
principle is to reflect our desire for partnership and cooperation.
Comment: ``Are there provisions in any of the regulations or even
the Stafford Act to stop funding to States, especially in the State of
Arizona where they're discriminating against the Tribe, so FEMA at that
point could stop funding to the emergency services office?'' (Southern
Ute Agency, Bureau of Indian Affairs, U.S. Department of the Interior)
Response: We also are concerned about this issue and will explore
the underlying concern for cooperation between and among governments.
Comment: ``Delete both occurrences of `or Indian nations', and `and
Indian Nations.' (St. Regis Mohawk Tribe)
Response: We agree. We made the change in the final policy.
Comment: ``So when you develop these partnership, you need to
recognize that this partnership needs to be truly equal and not just
for appearance.'' (Passamaquoddy Tribe)
Response: We acknowledge this comment.
I. Principle on Diminishing Impediments
Comment: ``Would State laws or compact provisions be affected under
this provision?'' (Division of Special Revenue, Department of Revenue
Services, State of Connecticut)
Response: We do not intend that this policy affect existing State
laws or compact provisions. The final policy incorporates language to
address this concern.
Comment: [With regard to Executive Order 12875, entitled `Enhancing
Intergovernmental Partnership, and incorporated by reference in this
policy principle, the Executive Order states the intent to] ``* * *
increase the availability of waivers to State, local, and tribal
governments; and to establish regular and meaningful consultation and
collaboration with State, local, and tribal governments * * * Would
this apply to funds available to remap the FEMA rate maps (zones) for
the NFIP so people can purchase flood insurance?'' (Colorado River
Indian Tribes)
Response: This is certainly an issue that we need to explore
further.
Comment: ``It has been our experience that most of the impediments
exist at the Regional level.'' (Prairie Island Indian Community)
Response: All FEMA employees will be familiar with the commitments
outlined in the Agency policy.
J. Principle on Working with Other Federal Agencies
Comment: ``There are some overlapping sister agencies with existing
programs which can assist FEMA in the responsibilities of implementing
tribal emergency preparedness programs by providing emergency response
training, exercises, and planning. These programs should be identified
by FEMA and the agencies contacted by FEMA to provide assistance.''
(National Congress of American Indians)
Response: We agree. To the extent possible we will work closely
with other Federal agencies and departments to identify program areas
of mutual interest.
Comment: ``We also encourage FEMA to work with other federal
departments to resolve the shortcomings related to flood plain
delineation. We have concluded that at the border of a reservation
existing delineations stop. Without flood plain delineation, building
continues in areas that could be flooded out.'' (Billings Area Office,
Bureau of Indian Affairs, U.S. Department of the Interior)
Response: We acknowledge the concerns related to development in
flood hazard areas.
Comment: ``Presently, the BIA is perceived as responsible for
providing assistance to the tribes during urgent situations but uses
annual operating funds to provide that assistance. These situations
deprive the intended use of those funds from occurring. The Federal
government should consider setting up a disaster fund so that money
could be made available for disaster preparedness, response, and
recovery.'' (Wind River Agency, Bureau of Indian Affairs, U.S.
Department of the Interior)
Response: The Stafford Act is the nation's program for
Presidentially authorized disaster assistance with one
[[Page 2107]]
Disaster Relief Fund. We will work with BIA on this issue.
K. Principle on Internalizing this Policy
Comment: ``With regard to FEMA's identification of a liaison for
Tribal governments], the office or individual selected must be familiar
with all elements of FEMA * * * all aspects of emergency management--
hazard mitigation, planning, preparedness, recovery, training,
exercises, the REP program, and financial.'' (Prairie Island Indian
Community) and ``The Ho-Chunk Nation feels that effective coordination
is best realized when policy oversight is charged to the Agency that
implements policy. Communication between FEMA and the various Tribes
will flow more freely if the office or individual coordinating this
policy is within FEMA and has access to the operations of the Agency.''
(Ho-Chunk Nation Legislature)
Response: (To both comments) FEMA Director Witt asked each of the
Agency's ten Regional Directors to appoint a Tribal point of contact to
serve as liaison to Tribal governments and to pursue the implementation
of this policy. Within the Headquarters, Director Witt charged the
Preparedness, Training and Exercises Directorate with coordinating
national level liaison and policy implementation efforts. All Agency
points of contact are well versed in the scope of FEMA's programs.
Comment: ``I would also recommend that the FEMA pursue an
aggressive education and training effort for its employees to raise the
level of awareness and understanding of the political relationship
between the Tribes and the United States . . . The education which too
often occurs in on-the-job training when Agency personnel are faced
with an issue requiring immediate attention. This method is ineffective
and inefficient.'' (Northern Idaho Agency, Bureau of Indian Affairs,
U.S. Department of the Interior)
Response: We agree that additional employee training may be
helpful.
Comment: ``FEMA may want to consider developing a protocol for
working with tribal officials. Other agencies, such as the
Environmental Protection Agency have developed protocols for responding
to letters from tribal officials (no more than ten days to respond),
visits to the reservation (appropriate program people must be
notified), and visits to the regional office (the regional
administrator is always available to meet with a tribal chairperson.''
(Prairie Island Indian Community)
Response: We appreciate these recommendations and promise to
explore these suggestions.
L. Principle on the Effective Date of the Policy
Comment: Several respondents suggested that FEMA include tribal
representatives on the Agency's working group and/or develop an
advisory group of some sort that included tribal members.
Response: We appreciate this recommendation. Consistent with our
commitment to consultation on issues that impact Tribal governments, we
will pursue all avenues for input and comment on policy development and
implementation efforts.
Comment: ``Confederated Salish and Kootenai Tribes would like to
see in place a plan of action on how a meaningful Indian Policy would
be implemented should the policy become reality.'' (The Confederated
Salish and Kootenai Tribes of the Flathead Nation)
Response: We will work to develop a long-term plan within a
reasonable amount of time after we make this policy final.
Comment: ``I would further recommend development of an internal
mechanism which would allow for the policy to find its way into the
infrastructure of the Agency by rule and regulation and still provide
the flexibility required for offices and staff to refine the policy to
meet local and regional needs.'' (Northern Idaho Agency, Bureau of
Indian Affairs, U.S. Department of the Interior).
Response: We agree and believe the process we used to make this
policy final meets the need that the Northern Idaho Agency (NIA)
identified. The final policy does not include specific discussion of
the range of FEMA programs to allow precisely the flexibility that the
NIA recommends.
Comment: ``As this policy is implemented, the Federal Emergency
Management Agency will consider tribal requests for any amendments or
revisions necessary to support tribal self-government consistent with
the President's Memorandum on Government-to-Government Relations with
Native American Tribal Governments.'' (Douglas Indian Association
Tribal Government) and ``I would suggest the policy be reviewed on an
annual basis to measure the success of its implementation.'' (Northern
Idaho Agency, Bureau of Indian Affairs, U.S. Department of the
Interior)
Response: (To both comments) We agree that the periodic review of
this policy will assure it flexibility to meet the needs of American
Indian and Alaska Native Tribal governments. We included a statement to
this effect in the final policy.
Dated: September 25, 1998.
James L.Witt,
Director.
[FR Doc. 99-643 Filed 1-11-99; 8:45 am]
BILLING CODE 6718-06-P
