Tribal governments are often treated similarly to state governments for emergency planning purposes. Tribal lands sometimes cross state and local jurisdictional lines, complicating disaster response and recovery efforts. Federal environmental laws authorize the EPA to allow tribes to implement certain programs in the same manner as states to address these jurisdictional issues. Developing tribal emergency plans involves determining whether land is under state or tribal jurisdiction and ensuring participation of all relevant governing entities.

1. Each level of government operates under a specific source of delegated authority.
Developing an emergency plan for a Tribal area is no different. Tribal governments are
typically treated the same as if they were a state government. Tribal government borders
or Indian country, at times, cover multiple jurisdictions, often crossing state and county
lines, which presents potentially complicated jurisdictional issues for response and
recovery during disaster relief.1
In addition, non-tribe members may live or own land
within Indian country, which can potentially further complicate matters.
The term “Indian country” is defined in 18 U.S.C. § 1151:
a) All land within the limits of any Indian reservation under the jurisdiction of the
United States Government, notwithstanding the issuance of any patent, and,
including rights-of-way running through the reservation;
b) All dependent Indian communities within the borders of the United States
whether within the original or subsequently acquired territory thereof, and
whether within or without the limits of a state; and
c) All Indian allotments, the Indian titles to which have not been extinguished,
including rights-of-way running through the same.
Three environmental statutes (Safe Drinking Water Act – SDWA, Clean Water Act –
CWA, and Clean Air Act – CAA) authorize the EPA “to treat tribes in the same manner
as states” (TAS) for the purpose of implementing environmental programs.2
Although the
Emergency Planning and Community Right-to-Know Act (EPCRA) does not explicitly
provide jurisdictional authority, the EPA has taken the position that it has discretion to
approve tribes to implement certain programs in the same manner as states in order to fill
jurisdictional gaps in how the statutes are implemented in Indian country.3
However, the
EPA must first determine whether a particular area is within state or tribal jurisdiction
before imposing a federal operating permit program on that area.4
Tribes have inherent sovereignty that may prevent the EPA from mandating certain
institutional controls.5
When a tribe applies for a regulatory program, they must prove
jurisdiction over the territory. Jurisdiction over activities by nonmembers owning “Indian
country” in fee simple come from two potential sources: a tribe may have inherent
authority over these activities; or Congress may, by statute, delegate federal authority to a
tribe.6
For example, under § 7601(d)(1)(A), Indian tribes may petition the EPA for
authority to regulate reservation air quality in accordance with minimum federal
standards over non-tribal members.7
Tribal applications for authorization to administer
program are sent to EPA's Regional Administrators.8
“If the tribe or tribe’s government
refuses to approve an [Institutional Control], the EPA may need to consider other options
such as informational devices.”9
1
Natural Disaster Recovery Framework, FEMA, 23, (2011), http://www.fema.gov/pdf/recoveryframework/ndrf.pdf
2
Tribal Assumption of Federal Environmental Laws, http://www.epa.gov/tribalcompliance/airresources/arregsdrill.html.
3
Id.
4
Johnson, S. Lee, Court Overturns EPA Limit for Tribal Areas, http://www.honigman.com/media/site_files/500_imgimg332399.pdf
See Also Michigan v. EPA, 268 F.3d 1075 (2001).
5
Implementing Institutional Controls in Indian Country, United States Environmental Protection Agency, 12, (2013),
http://www.epa.gov/superfund/policy/ic/guide/ICs_in_Indian_Country_FINAL.pdf.
6
Tribal Compliance Assistance Center, http://www.epa.gov/tribalcompliance/rolescountry/riregsdrill.html.
7
42 U.S.C. § 7601(d)(1)(A)
8
Id.
9
Implementing Institutional Controls supra at 12.

2. Planning for disasters involves creating a Tribal Mitigation Plan. Land located in
“checkerboard” areas, where tribal and non-tribal lands are interspersed, can participate
in the development of the Tribal Mitigation Plan, or develop a mitigation plan
independently.10
If developed separately, a non-tribal organization or tribal entity must
develop a Local Mitigation Plan under 44 CFR 201.6 and would only be eligible to apply
for HMA grants as a subgrantee.11
A multi-jurisdictional plan prepared in coordination
either with other Indian Tribal governments or with non-tribal jurisdictions is acceptable
under 44 CFR 201.7(a)(4).12
However, any parties that do not participate, within the
planning area, will not be eligible for future FEMA mitigation project grant assistance
unless they have developed their own approved plan.13
“Multi-jurisdictional mitigation
plans that include non-tribal jurisdictions must be submitted to the SHMO for initial
review and coordination, with the State then forwarding the plans to FEMA for formal
review and approval.”14
10
Federal Emergency Management Agency Department of Homeland Security, Tribal Multi-Hazard Mitigation Planning Guidance,
FEMA, 11, (2010), http://www.fema.gov/media-library-data/20130726-1732-25045-2215/tribal_planning_guidance_may2010.pdf
11
Id.
12
Id. at 70.
13
Id.
14
Id. at 75.