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Our firm defended a tribal absentee ballot law (denying absentee ballots to non-resident members) against constitutional attack in Jacobson v. Eastern Band of Cherokee Indians, No. CV-05-101 (Supreme Court of the Eastern Band of Cherokee Indians, Nov. 29, 2006).

General Memorandum 13-010

General Memorandum 13-010
Tribal Amendment to the Stafford Act Finally Enacted; Tribal Participation Needed for Crafting Implementing Regulations

On January 29, 2013, the President signed a disaster aid appropriations bill, HR 152, as Public Law 113-2 (Act). The Act, which provides funding for recovery efforts necessitated by Super Storm Sandy, includes an important provision long sought by tribal governments – the authority to directly petition the President for a declaration of an emergency or major disaster. Prior to this Act, tribes experiencing an emergency or major disaster had to rely upon a state governor to petition the President on their behalf. The tribal provision is an amendment to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act).

This amendment to the Stafford Act recognizes tribal sovereignty and the nation-to-nation relationship tribes have with the federal government. In the coming weeks, the Federal Emergency Management Agency (FEMA) will release interim guidance for implementing the Act and will reach out to tribes to plan consultation sessions. Because the Act gives the President considerable leeway to waive or change the cost share that tribes would be required to cover, it will be crucial for tribes to play an active role in shaping the implementing regulations for this provision.

Legislative History. The tribal amendment was FEMA's primary legislative priority in the 112th and 113th Congresses and enjoyed bipartisan support. It was introduced as a standalone bill by Representative Rahall (D-WV) and by Senator Tester (D-MT) and then attached to a variety of legislative vehicles by Representative Denham (R-CA) before it was finally enacted. Copies of FEMA's and Representative Rahall's press releases are attached.

Summary. The Act expressly provides that the Chief Executive of an affected federally recognized Indian tribe may act in the same capacity as the governor of an affected state in the event of an emergency or major disaster. Tribes may now directly petition the President for a declaration of an emergency or a major disaster, and may also directly receive assistance in the same manner as affected state governments. Alternatively, the Act also provides that tribes retain the existing option to receive assistance through a declaration made by the President at the request of a state.
The cost share requirements for disaster relief assistance can be substantial. Generally, it is 75 percent federal and 25 percent non-federal, but existing federal regulations authorize cost share adjustments under certain circumstances. For example, if the per capita amount of damages meet or exceed a certain threshold, the cost share may be adjusted to 90 percent federal and 10 percent non-federal. The Act provides that:
"(1) IN GENERAL. – In providing assistance under this title, the President may waive or adjust any payment of a non-Federal contribution with respect to the assistance if –
(A) the President has the authority to waive or adjust the payment under another provision of this title; and
(B) the President determines that the waiver or adjustment is necessary and appropriate.
(2) CRITERIA FOR MAKING DETERMINATIONS. – The President shall establish criteria for making determinations under paragraph (1) (B)"

The Act recognizes the special circumstances that tribes face and provides leeway for how the terms "necessary and appropriate" will be interpreted. In addition, the Act requires that these "unique conditions" be taken into account when drafting the implementing regulations:
"(e) REGULATIONS. –
(1) ISSUANCE. – The President shall issue regulations to carry out the amendments made by this section.
(2) FACTORS. – In issuing the regulations, the President shall consider the unique conditions that affect the general welfare of Indian tribal governments."

Other Provisions. In addition to empowering tribes and funding recovery efforts for Super Storm Sandy, the Act includes a number of non-tribal-specific amendments to the Stafford Act which:
• Streamline and expedite environmental and historic preservation reviews under the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA) for hazard mitigation projects
• Require the creation, with the input of the Council on Environmental Quality and the Advisory Council on Historic Preservation, of a "unified federal review process" for disaster recovery projects
• Extend reimbursement to state, tribal and local governments for costs relating to:
– basic pay and benefits for permanent employees conducting emergency protective measures if the work is not typically performed by the employees and the type of work may otherwise be carried out by a contract or agreement with private organizations; or
– overtime and hazardous duty compensation for permanent employees conducting emergency protective measures

Tribal support for the amendment to the Stafford Act resulted in a major step forward for Indian Country, but now tribes must actively participate in consultation with FEMA to shape the implementing regulations. We will provide updates on the timetable for tribal consultation sessions as those details emerge in the coming weeks and months.

Please let us know if we may provide additional information regarding this development or assistance in drafting comments when they are requested.

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Inquiries may be directed to:
Moriah O'Brien (mobrien@hobbsstraus.com)

Available Documents for Download ( any referenced attachments are included in download )


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