[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]]

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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.

-----------------------------------------------------------------------

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

[[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