Recently W. Craig Fugate has made a major effort to involve the Native Americans more deeply in FEMA programs, functions and activities. Unfortunately, he is between the proverbial rock and a hard place. The Robert T. Stafford Disaster Relief and Emergency Assistance Act, Public Law 100-707 that supplemented in part, repealed in part, and modified in part the Disaster Relief Act of 1974, Public Law 93-288, treats tribes as local government units. The rulings of SCOTUS (Supreme Court of the US) and federal law including treaty law treat them as sovereign nations. In an administrative law process the Department of Interior rules on which tribes will be given recognized federal status, include the right in some cases to open and operate casinos.
Under the Clinton Adminstration an effort by a brilliant young staffer (actually trained as a chemist) to resolve this conundrum led to her being drummed out of FEMA for following federal law and policy. Although the office of the General Counsel was never asked to rule officially on this split in legal authority during my time there 1979-1999) I did my best to support the staff effort which I believe directly contradicts the Stafford Act approach.
In his famous treatise on statutory construction, Professor Sutherland opines that Congress is presumed to both know its own mind and to know federal law. Thus, Congressional enactments should be construed to avoid conflicts whenever possible. Only where there is a direct statutory conflict should the statute later in time have some weight as controlling. But the Indian Tribal rights issues have plagued American law since President Jackson blotted his contribution to history by ejecting the Choctaws, Cherokees, and other tribes from the Southeast so there land could be settled by White Americans.
This is the kind of issue that should have been addressed by the OLC (Office of the Legal Counsel) at the DOJ (Dept. of Justice) but since FEMA has historically been reversed by OLC on both its legal analysis and policies almost 100% of the time in cases referred this was never a likely step to be taken by FEMA in the past when independent and certainly not likely to be taken by the GC of DHS, currently Mr. Fong.
If this was resolved properly my hope would be that recognized tribes and other Native Americans could in fact become more heavily utilized not just as recipients of federal disaster outlays and other FEMA programs, but could be trained up and utilized much as the NGO's are for disaster operations. Time Will Tell!
