Indian tribal governments have the inherent power to declare states of emergency on tribal lands to protect the health and welfare of tribal members, and a number of tribes have issued emergency declarations under tribal law during the past several weeks. On March 13, 2020, under § 501(b) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5207 (the “Stafford Act”), the President declared COVID-19 a pandemic of sufficient severity and magnitude to warrant an emergency declaration for all states, tribes, territories, and the District of Columbia. This Stafford Act declaration triggers access to federal technical, financial, logistical, and other assistance to state, tribal, local, and territorial governments.

The March 13 declaration advises that requests for a declaration of a major disaster under § 401(a) of the Stafford Act may be appropriate, and encourages governors and tribal leaders to consider requesting federal assistance.

In order to receive assistance under § 401(a), state governors or chief executives of Indian tribal governments must request a major disaster declaration based on their conclusion that the disaster is of “such severity and magnitude nationwide that effective response” is beyond the capabilities of the tribe or state. The Chief Executive must take appropriate action to respond to the emergency and activate the tribe’s emergency response plan. Once the tribe’s capacity to respond has been exceeded, the Chief Executive must provide information describing the tribe’s “efforts and resources which have been or will be used to alleviate the emergency,” and must “define the type and extent of Federal aid” the tribe requires to respond to the emergency.

The March 13th declaration also allows FEMA to provide assistance under §§ 502 and 503 of the Stafford Act. Assistance is provided through the Public Assistance Program. More information about the program can be found here. State, tribal, and territorial governments do not need to request separate emergency declarations to receive FEMA assistance under this nationwide declaration.

FEMA assistance requires the execution of a FEMA-Tribal Agreement, which contains the understandings, commitments, and conditions under which FEMA’s disaster assistance will be provided. The agreement is signed by the FEMA Regional Administrator or designee and the Chief Executive of the tribal government. No disaster funding or direct federal assistance will be authorized until the FEMA-Tribal Agreement has been signed, except where FEMA deems it necessary to begin the process of providing essential emergency services or housing assistance.

Schwabe has created a COVID-19 Task Force to help clients navigate these uncertain times, and we are constantly updating our COVID-19 Resources page. Our Indian Law group stands ready to help you.