Seeking Higher Ground: Developing a Tribal Model Code for Disaster and Emergency Management in a Complex Jurisdictional Environment

Authors

Brian CandelariaFollow

Abstract

“The teepee is much better to live in;

always clean, warm in winter, cool in summer; easy to move. The white man builds his big house, cost much money, like big cage, shut out sun, can never move; always sick. Indians and animals know better how to live than white man; nobody can be in good health if does not have all the time fresh air, sunshine, and good water.”

- Chief Flying Hawk[1]

In 2019, I opened my submission for the Sovereignty Symposium’s Doolin Award with the statement above. The entry was accepted and reprinted in the American Indian Law Journal (AILJ) in the Spring of 2020 by the Seattle University School of Law.[2] The article, Mapping a Way Through Disaster and Emergency Issues Involving Indian Country and the Importance of Legal Preparedness, was designed to “explore why complex jurisdictional issues in Indian Country make disaster and emergencies, whether they be natural or human-made, extremely difficult for tribal authorities to address.”[3] Little did anyone know what profound challenges and changes awaited us not long after the article was published. This paper will explore what has happened since 2020 and the effects the recent developments have had on disaster preparedness, response, and mitigation in Indian Country.

This paper is divided into multiple sections to guide the reader through complex jurisdictional issues facing American Indian Nations and Tribes when it comes to disaster preparedness and response. Part I will be used to provide a brief introduction into various disaster-related changes experienced in the last three years, largely due to COVID-19. Part I will also briefly introduce the changes in jurisdictional realities because of recent United States Supreme Court opinions during the past three years. Part II will provide a detailed overview of what is at stake when disasters strike Indian Country. Part III will explore the current state of federal Indian law and recent case law that may influence issues of jurisdiction and sovereignty. Part IV will discuss the current state of disaster law since the beginning of the COVID-19 pandemic. Part V will be used to propose the existence of a field of federal Indian disaster law category. This category will provide the foundation for new solutions and opportunities for tribes to stake their ground for sovereignty and self-preservation. Part VI will then be used to propose the structure and contents for a Disaster and Emergency Management Model Code (DEMMC) for American Indian Nations and Tribes to consider. In the end, this paper will be used to recommend that tribes must take steps necessary to survive future disasters by adopting a Disaster and Emergency Management Model Code to account for the various legal, jurisdictional, and cultural aspects of disaster in Indian Country. Most importantly, tribes should do so before the federal Indian law legal landscape is altered so much so that they are prevented from exercising their true sovereignty on the issue. The tribes must reach and stake the higher ground before others do.

Recommended Citation

Candelaria, Brian (2023) "Seeking Higher Ground: Developing a Tribal Model Code for Disaster and Emergency Management in a Complex Jurisdictional Environment," American Indian Law Journal: Vol. 12: Iss. 1, Article 1.
Available at: https://digitalcommons.law.seattleu.edu/ailj/vol12/iss1/1