Tribal Emergency Preparedness Law: Sovereignty, Federal Law and Mutual Aid

American Indian and Alaska Native tribes are sovereign nations with a government-to-government relationship with the United States. There are 567 federally recognized tribes in the contiguous states and Alaska. Besides political sovereignty, tribes exercise cultural sovereignty through their own traditions and religious practices — a foundation for their political sovereignty that spans the spiritual, emotional, mental and physical sides of Native life. Because they make their own laws, tribes have the authority to protect their communities' health and welfare, and to prepare for and respond to emergencies in the ways that best suit them. This brief from CDC's Public Health Law Program introduces the subject.

Tribal authority

Tribes governed themselves long before the United States existed; their sovereignty rests not on federal grant but on principles of international law. The United States continued to recognize them as sovereign nations, subject to certain federal laws. In the Supreme Court's words, tribal sovereignty is the authority "to make their own laws and be ruled by them." Tribes differ widely in law, government and resources, but protecting their citizens is central to sovereignty, and their emergency powers take many forms.

• Constitutions. The Standing Rock Sioux Tribe's constitution gives it authority to safeguard the general welfare, property and cultural and natural resources of the tribe; the tribal chairman cited that provision in declaring a state of emergency in May 2013, when flash floods threatened roads, homes and the irrigation system.
• Codes. The Snoqualmie Indian Tribal Code's Emergency Management Department Act creates a department that writes and updates the tribe's comprehensive emergency management plan, runs exercises, inspects emergency facilities and enrols volunteers in advance; in an emergency, the chairman may declare it, issue emergency rules and orders, obtain supplies and services, and requisition personnel and materiel. The Eastern Band of Cherokee's code sets up an Office of Emergency Management to plan and run emergency work on Cherokee lands, recruit volunteers, write response plans and hold public practice alerts, and lets the chairman declare emergencies and order evacuations. Other laws help too: solid waste, nuisance and insecticide laws can support a response to a vector-borne outbreak, and tribal laws on contact tracing and partner notification, quarantine and isolation, and involuntary testing and treatment address infectious disease.
• Emergency management plans. Often required by tribal law, these set out a tribe's strategy. The Lummi Nation's plan lays out its emergency structure, legal authorities, incident command and coordination with local, state and federal partners — and extends the tribe's protection to everyone on the reservation and in its facilities: residents, visitors, employees, students and clients. The Squaxin Island Tribe's community health and pandemic flu plan adds procedures for health emergencies, making the tribal health department responsible for surveillance and securing medical supplies.

Federal Indian law

Federal Indian law defines the rights, relationships and responsibilities among tribes, states and the federal government. The United States has a moral and legal trust responsibility to tribes — a fiduciary duty to protect treaty rights, lands, assets and resources and to carry out federal Indian law. It binds the whole federal government, not just the Indian Health Service or Bureau of Indian Affairs, so agencies with emergency roles, such as the Federal Emergency Management Agency and CDC, must offer tribes consultation as well as their services.

Congress can legislate on tribal matters, and some federal emergency laws affect tribes. The Stafford Act lets the president declare a major disaster or emergency when an event overwhelms state, tribal, local or territorial governments, opening federal technical, financial and logistical help; a tribe's chief executive can request a declaration. Federal power does not displace tribal authority unless federal law expressly says so — a Stafford Act declaration does not stop a tribe declaring its own emergency — and states have no authority over tribal members on tribal lands unless federal law grants it.

Working across borders

Though states have limited jurisdiction on tribal lands, tribes can make intergovernmental agreements — mutual aid agreements or memorandums of understanding — with states, local governments and other tribes to share information, data, medical and response staff and other resources in an emergency. On Washington's Olympic Peninsula, seven tribes and three local health departments signed a mutual aid agreement covering everyday public health services, communicable disease outbreaks, isolation and quarantine, and any other public health action.

Sources

• Centers for Disease Control and Prevention, Public Health Law Program, "Tribal Emergency Preparedness Law," developed by Aila Hoss and Gregory Sunshine. https://www.cdc.gov/phlp/php/tribal-public-health/tribal-emergency-preparedness-law.html · PDF: https://www.cdc.gov/phlp/media/pdfs/brief-tribalemergency.pdf
• Gregory Sunshine and Aila Hoss, "Emergency Declarations and Tribes: Mechanisms Under Tribal and Federal Law," Michigan State International Law Review 24 (2015).
• Justin B. Barnard, "Responding to Public Health Emergencies on Tribal Lands: Jurisdictional Challenges and Practical Solutions," Yale Journal of Health Policy, Law, and Ethics 15 (2015).
• Words on this page from people and organisations outside the federal government are paraphrased; rewritten in hubnx's own words.