Statement of Considerations of Comments Received on Draft Agency Tribal Policy

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) [email protected].

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

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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

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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