On October 25, 2013, in a Dear Tribal Leader Letter, Federal Emergency Management Agency (FEMA) Administrator Fugate released the Agency’s draft Tribal Consultation Policy. Comments are requested by March 3, 2014. Administrator Fugate’s letter and a document describing the process for receiving comments on the draft policy are attached. A copy of the draft policy is available here:
The purpose of the policy is to establish a process to guide FEMA officials on how to engage Indian tribes and Tribal Officials in regular and meaningful consultation and collaboration on actions that have tribal implications. There are four phases of the consultation process that are detailed in this policy:
• Identification of whom to consult and what type of consultation to conduct
• Notification to tribal officials of the consultation
• Input from tribal officials and documentation of comments
• Follow-up by FEMA on the input received
When Consultation Should Occur.
For instances when consultation is not already required by law the draft policy states that “(1) FEMA may identify an action that might be appropriate for consultation; or (2) an Indian tribe or Tribal Official may make a request to FEMA to consider an action appropriate for consultation” and “Agency officials are to initiate consultation on actions with tribal implications and are to do so early enough in the decision-making process to allow tribes the opportunity to provide meaningful input and to give FEMA the opportunity to consider the input.”
The draft policy defines “tribal implication” and “substantial direct effect” as follows:
“A ‘tribal implication’ occurs when the action has a substantial direct effect on: (1) one or more Indian tribes; (2) the relationship between the Federal government and Indian tribes; or (3) on the distribution of power and responsibilities between the Federal Government and Indian tribes.”
“The term ‘substantial direct effect’ generally refers to an effect or impact on an Indian tribe(s), either beneficial or adverse, that is directly caused by the FEMA action and that is significant in size or amount when compared to the effect or impact on non-tribal stakeholders.”
In instances an action would affect tribes but is not a substantial direct effect the draft policy explains that “the Senior Agency Officials and Tribal Consultation Coordinators should include tribes in the outreach normally conducted with other stakeholders affected by the action, such as States and local governments, emergency managers, or members of the public.”
Since the enactment of PL 113-2 on January 29, 2013, which amended the Robert T. Stafford Disaster Relief and Emergency Assistance Act to recognize the authority of tribal governments to directly petition the President for a declaration of an emergency or major disaster , tribes are more directly affected by FEMA’s actions. In light of these changes, this tribal consultation policy takes on an even greater importance.
Please let us know if we may be of assistance developing comments or if we may provide additional information regarding the Federal Emergency Management Agency’s draft Tribal Consultation Policy.