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The Role of the Legal Professional Related to Disaster Preparedness in Indian Country

By Brian Candelaria

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Imagine for a moment the following scenarios:

  • It is a quiet spring morning in March. You are asleep in your modest little home outside of Oso, Washington, when you feel the ground shake. You briefly think it is an earthquake until you hear the sounds of buildings around you being crushed and destroyed. You look out your bedroom window and see a wall of mud tearing through the valley pushing and dragging houses and vehicles in its wake.
  • It is a gorgeous summer day in August. You are on a bank of the San Juan River. You are about to step into the river, hand-in-hand with your grandson, when you notice the water is slowly turning a bright orange color you have never seen before in the river. Perplexed and a bit scared, you decide you and your grandson should not go into the river today. Your grandson turns to you and asks what happened to the river. You tell him you don’t know. You each stare at the river.

Now that you have those images in your mind, let us add to each scenario that you are experiencing these events as a Native American tribe member. Who would you have turned to before each disaster or emergency? Who do you turn to as the event is occurring and who do you turn to afterward? This article will explore why legal practitioners must have a basic awareness of complex jurisdictional issues in Indian country that can make disasters and emergencies, whether they be natural or man-made, extremely difficult for tribal authorities to address. The article will then conclude with some important takeaways to bear in mind regarding this subject.

A BASIC HISTORY AND CONCEPTS OF FEDERAL APPROACH TO DISASTERS AND EMERGENCIES IN AMERICA

What is Indian Country?

As per the United States Code, “[e]xcept as otherwise provided in sections 1154 and 1156,” “Indian country” refers to:

(a) all land within the limits of any Indian reservation under the jurisdiction of the United State Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.1

Through a complex history of Supreme Court cases, starting with the early rulings of Johnson v. M’Intosh,2 Cherokee Nation v. Georgia,3 Worcester v. Georgia4 and continuing through to today,5 a tangle of criminal and civil jurisdictional issues has understandably left all parties lost and confused during times and situations when effected individuals can least afford it.

This is never more apparent than when discussing the effects of disasters in Indian country – especially those that are man-made. At the core of these difficulties is the fact that tribes are left with very few legislative, legal tools by which tribes can criminally punish evil-doers and civilly recover damages from negligent actors. It is important for tribes to be able to act “when discharges of hazardous substances and other pollutants result in injuries to these natural resources and natural resource services, impairing the important ecological and economic functions that they provide.”6 In order to better understand how detrimental these jurisdictional quagmires can be at times of disaster and emergency, let us look back to some example of past disasters, natural and man-made, that occurred in Indian country.

On April 1, 1979, President Jimmy Carter created the Federal Emergency Management Agency (FEMA) as the nation’s single domestic agency entrusted to “managing the Nation’s disasters.”7 Although not the federal government’s first “involvement in emergency management,” since its 1979 inception and up to 2010, FEMA had coordinated “federal response and recovery efforts and supported State, Tribal, and local efforts in more than 1,800 incidents.”8 In 1988, Congress passed the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act)9 and then the Homeland Security Act of 200210 (following the attacks of Sept. 11, 2001) to act as the legislative foundations upon which FEMA derives its core mission. That mission was modified when, following the passage of the Homeland Security Act of 2002, FEMA was consolidated to become an agency within the Department of Homeland Security, not an independent agency as it once had been. As a result, FEMA was tasked to lead “the coordination of efforts across the Federal Government to support its partners in the Federal, State, Tribal and local government and private sector to enhance the Nation’s preparedness to prevent, protect against, respond to, recover from, and mitigate all hazards.”11

FEMA accomplishes its mission by providing effected citizens with assistance in response and recovery from a variety of events. Using the National Response Framework (NRF) and National Disaster Recovery Framework (NDRF), FEMA can help states, tribes and local governments coordinate “resources from one another, the Federal Government, voluntary, non-profit and private sector agencies regardless of an event’s size, scale, or whether it receives a Presidential declaration.”12 Additionally, FEMA can coordinate communities with federal support from agencies like the Environmental Protection Agency (EPA), Department of Agriculture, Department of Housing and Urban Development (HUD), Department of Health and Human Services (HHS) , Department of Defense (DOD) and many others.13 Part of the process involved in communities seeking FEMA assistance involves determining the severity of the damage the community has suffered or may suffer.

Using the two important statutory concepts of “major disaster” and “emergency,” FEMA categorizes its important duties and responsibilities toward affected geographic populations and governmental entities. Differences between the two classifications include the fact that: 1) the president cannot declare a major disaster without a formal request from the governor of the affected state or in the case of tribal land, a formal request from the affected federally recognized Indian or Alaska Native tribe,14 2) the president cannot declare a major disaster in regards to non-natural events unless the event involves a fire, flood or explosion15 and 3) a major disaster declaration authorizes “the President to approve more assistance programs than emergency declarations.”16

In order to start the disaster declaration process, the Stafford Act requires that “[o]nly the governor of a state or the chief executive of a federally-recognized Indian tribal government may request a Presidential declaration.”17 Within required paperwork, the governor or the American Indian nation chief executive “must furnish information on the nature and amount of state/tribe and local resources that have been or will be committed to alleviating the results of the disaster.”18 Additionally, the request must include the estimates of “the amount and severity of damage” with the projected “impact on the private and public sector,” as well as “an estimate of the type and amount of assistance needed under the Stafford Act.”19 Finally, the Stafford Act requires that “[t]he request must be based upon a finding that the event is of such severity and magnitude that effective response is beyond the capabilities of the state/tribe and the affected local governments, and that federal assistance is necessary.”20 It is important to note, until recently, American Indian nations were required to submit their formal requests through the governor of the state within which the tribal boundaries exist. This was changed and codified in the Stafford Act so the chief executive of a federally recognized tribe could submit a formal request for declaration just as a governor of an affected state would.21 However, nonfederally recognized tribes are still classified as “local governments” and require the governor of the affected state to actively assist in the application process.22

Once a formal request has been submitted by the appropriate leadership representative, FEMA will then evaluate the request using a number of factors. According to its own regulations, and codified in the Code of Federal Regulations (C.F.R.), the factors FEMA uses for major disaster declaration evaluation includes, but is not limited to:

[t]he amount and type of damages; the impact of damages on affected individuals, the State, and local governments; the available resources of the State and local governments and other disaster relief organizations; the extent and type of insurance in effect to cover losses; assistance available from other Federal programs and other sources; imminent threats to public health and safety; recent disaster history in the State; hazard mitigation measures taken by the State or local governments, especially implementation of measures required as a result of previous major disaster declarations; and other factors pertinent to a given incident.23

Once FEMA evaluates the request, the agency will then provide a written recommendation and analysis which is then delivered to the president for authorization as a formal declaration or rejection.

Upon formal presidential declaration of an affected area’s status for “major disaster,” FEMA and the state or tribe work together to navigate the daunting task of recovery amid the difficult terrain to federal agency bureaucracy. In a federal aid process already fraught with complexities and obstacles, major disasters involving tribal nations are even more so. Some of these complications can best be understood by reviewing past events affecting tribal communities in Indian country.

EXAMPLES OF PAST DISASTERS IN INDIAN COUNTRY

Example of a Past Natural Disaster in Indian Country

Mudslide in Oso, Washington. The first example of an American Indian community affected by a natural disaster was discussed within one of our opening scenarios. In this case, the reader was asked to imagine a quiet spring day in March and the mudslide that followed. This scenario is one in which members of the Sauk-Suiattle Indian tribe of Washington state were forced to experience. On the morning of March 22, 2014, deep within the North Cascade Mountains of Washington state a devastating mudslide “engulfed 49 homes, was responsible for the deaths of 43 people and destroyed utility infrastructure ... Without phone or Internet service, tribal government operation largely came to a standstill and made the process of initiating emergency services nearly impossible.”24 To compound these initial difficulties, the Sauk-Suiattle Indian tribe leadership were further hampered by the fact that the loss of State Route 530 forced tribe members to commute “92 miles each way to the town of Arlington using an alternate route” in order to access employment obligations and medical services.25 In addition to the loss of life and property, the mudslide’s effect on tribe members day-to-day transportation expenses proved to be disruptive. This is because tribe members had to pay “gasoline prices at nearly $4.00 per gallon” resulting in an extreme hardship for a community where many “household incomes [were] already under 200 percent below the poverty level.”26

Example of Past Man-Made Disaster in Indian Country

While man-made events are technically categorized under “emergency” status, these types of events are no less devastating to those tribes affected by them.

Gold King Mine Disaster. As in the scenario discussed early in this article involving the grandfather and grandson on the bank of the San Juan River, an example of a man-made disaster or emergency is the Gold King Mine disaster on Aug. 5, 2015. An EPA contractor was attempting to contain a leak from the Gold King Mine near Silverton, Colorado.27 “The contractor using heavy machinery ruptured the mine’s containment barrier releasing millions of gallons of contaminated mine waste into a tributary of the Animas River, Cement Creek. This toxic wastewater containing heavy metals such as arsenic, lead, and cadmium flowed from Cement Creek into the Animas River, and into the San Juan River.”28 Delegate LoRenzo Bates noted that “the Navajo Communities along the river have experienced significant cultural and economic damages as a result of the spill. Water is sacred to the Navajo People; it is the basis of all life. Spiritually and culturally Navajo beliefs are deeply connected to the land, air, and water that lie between the four sacred mountains that form the aboriginal boundary of our land.”29 Most importantly, Delegate Bates emphasized that “[t]he spill has contaminated or destroyed many of the essential elements of our religious practice, and desecrated a river we have treated with reverence since time immemorial.”30

FUTURE DISASTERS IN INDIAN COUNTRY

The Importance of Tribes Being Prepared and Active in Trying to Influence Federal Policy Formation

What can American Indian nations, tribes and legal professionals do when confronted with the jurisdictional hurdles and intrusions that occur during and after a disaster or emergency, no matter what the cause may be? What follows are three possible solutions that can address some of the “global” jurisdictional concerns that will someday affect most tribes during a disaster or emergency.

First, it is vital that tribes do what they can to develop “intergovernmental agreements” (IGA) with neighboring governmental entities in the form of state, county and municipal agencies and organizations. “An IGA is an agreement or memorandum of understanding (MOU) negotiated between a tribe and a neighboring government to clarify some aspect of their legal relationship. In some cases, these agreements permit cooperation and sharing of resources.”31 The result of an agreement “instituted before an active emergency, would establish and specify roles, responsibilities, and authorities to which the involved governments could agree.”32 In establishing and specifying roles, responsibilities and authorities, the parties of the agreement also “clarify the application of broad and uncertain jurisdictional principles in very specific contexts likely to arise in a public health emergency.”33 Most importantly, just the “process of negotiation may foster a cooperative relationship between tribal and state or local governments that the involved governments can codify in an IGA or pledge of mutual assistance.”34

Next, it is equally important for legal professionals who are entrusted with assisting the American Indian nations during this preparation process to make themselves and their tribal clients aware of the applicable statutory processes during and after a disaster or emergency occurs in Indian country. For instance, in the case of FEMA disaster recovery and assistance, tribes can take proactive steps that will pay in time, money and expenditure of resources during a disaster. One such step includes communities “pre-qualifying” debris removal contractors “or contractors for other emergency work that is commonly required, prior to an event and solicit bid prices from this list of contractors once an event has occurred. This method allows competitive bidding while preserving the ability to achieve reasonable market prices at the time the work is performed.”35 In other words, by planning ahead the tribe is more likely to develop a viable and economical budget plan rather than risk higher costs that might result from limited post-disaster resources and the ensuing risk for “price-gouging” from vendors and contractors.

Another pre-disaster preparation tool tribes can utilize is the establishment of “mutual aid agreements before disaster strikes, and to address the subject of reimbursement in their written mutual aid agreements.”36 Yet another example of how attorneys can help their tribal clients is by “work[ing] with their clients to formally adopt a local code or ordinance that gives local government officials the responsibility to enter private property to remove disaster-related debris or perform work in the presence of an immediate threat.”37

One final example would be “[a]ttorney should ensure that their clients comply with requirements and permits for debris operations. For example, staging and disposal sites should be a safe distance from property boundaries, wetlands, surface water, structures, wells, septic fields, and endangered species, and appropriate sites should be identified for the disposal of hazardous materials.”38 While not an exhaustive list of pre-disaster legal tasks, this list shows just a glimpse of some of the expectations that federal agencies like FEMA will expect of those within Indian country during and following a disaster or emergency declaration.

The third proposed solution for American Indian nations and tribes to consider is to maintain constant communication and involvement in the continued formation of federal disaster relief and recovery policy with the knowledge that by doing so the voices of tribal citizens cannot be ignored.

CONCLUSION
Whether we imagine ourselves as a person suffering from the effects of a Washington state mudslide or a grandfather on the banks of his ancestral lands on the shore of the San Juan River, complex jurisdictional issues in Indian country make disasters and emergencies, whether they be natural or man-made, extremely difficult for tribal authorities to address. In the end, tribes and supportive legal professionals can help individual tribe members to navigate the logistical hazards that precede and follow natural and/or man-made disasters.

ABOUT THE AUTHOR
Brian T. Candelaria graduated from the OCU School of Law in May 2019. He also has an MLS in indigenous peoples law from the OU College of Law and is currently employed with Oklahoma Indian Legal Services. He has attended the Sovereignty Symposium for the past four years.

1. 18 U.S.C §1151.
2. Johnson v. M’Intosh, 21 U.S. 543 (1823).
3. Cherokee Nation v. Georgia, 30 U.S. 1 (1831).
4. Worcester v. Georgia, 31 U.S.515 (1832).
5. At this writing, the United States Supreme Court is slated to hear oral arguments for Sharp v. Murphy, 17-1107, for a second time.
6. Allan Kanner, “Tribal Sovereignty and Natural Resource Damages,” 25 Pub. Land & Resources L. Rev. 93 (2004).
7. The Federal Emergency Management Agency Publication 1, p. 3, (November 2010).
8. Id.
9. Robert T. Stafford Disaster Relief and Emergency Assistance Act, Pub. L. No. 100-707, 112 Stat. 4689.
10. Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135.
11. FEMA Publication 1, supra at note 73, at 20.
12. Erin J. Greten & Ernest B. Abbott, “Representing States, Tribes, and Local Governments Before, During, and After a Presidentially-Declared Disaster,” 48 Urb. Law 489, 492 (2016).
13. Id.
14. Id. at 495.
15. Id.
16. Id. at 496.
17. Idat 497, citing 42 U.S.C. §122 (4), (6), (12) (Supp. 2015).
18. Id.
19. Id.
20. Id., citing 42 U.S.C. §§5170, 5191 (a) (Supp. 2013).
21. 42 U.S.C. §5170
22. Greten, supra 7, at 503.
23. 44 C.F.R. §206.37(a)(1).
24. Prepared Statement of Hon. Ronda Metcalf, Secretary, Sauk-Suiattle Indian tribe, When Catastrophe Strikes: Responses to Natural Disaster in Indian Country: Hearing before the Committee on Indian Affairs, United States Senate, One Hundred Thirteenth Congress, Second Session, p. 29, (July 30, 2014).
25. Id. at 30.
26. Id.
27. LoRenzo Bates, Navajo Nation Council Delegate for Communities of Nenahnezad, Newcomb, San Juan, Tiis Tsoh Sikaad, Tse’Daa’Kaan, and Upper Fruitland, EPA’s Gold King Mine Disaster: Examining the Harmful Impacts to Indian Country: Hearing before the Committee on Indian Affairs, United States Senate, One Hundred Fourteenth Congress, First Session, p. 71, (Sept. 16, 2015).
28. Id.
29. Id.
30. Id.
31. Justin B. Barnard, “Responding to Public Health Emergencies on Tribal Lands: Jurisdictional Challenges and Practical Solutions,” 15 Yale J. Health Pol’y, L. & Ethics 251, 279 (Summer 2015).
32. Id. at 281.
33. Id.
34. Id.
35. Greten, supra note 13, at 521.
36. Id.
37. Id. at 529.
38. Id.

Originally published in the Oklahoma Bar Journal -- OBJ 90 pg. 34 (November 2019)