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Jurisdictional Issues Using the Law to Enhance Cross-Jurisdictional Coordination

Welcome

Welcome to “Jurisdictional Issues and Using the Law to Enhance Cross-Jurisdictional Coordination.” This learning module is the second in a series of modules developed by the Tribal Legal Preparedness Project to assist Tribal Nations interested in expanding their legal preparedness capacity.

Responding to public health and other emergencies requires coordination among jurisdictions, as such threats rarely follow jurisdictional boundaries. Thus, an understanding of how law can assist such coordination is an essential part of preparedness, response, and recovery.

Please use the next button at the bottom of the screen to navigate through this module.

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Disclaimer

The contents of this module have not been formally disseminated by the Centers for Disease Control and Prevention, ChangeLab Solutions, and the Center for Public Health Practice. The contents should not be construed to represent any agency/organization determination or policy.

These module materials are for instructional use only and are not intended as a substitute for professional legal or other advice. While every effort has been made to verify the accuracy of these materials, legal authorities and requirements may vary from jurisdiction to jurisdiction and change over time. Always seek the advice of an attorney or other qualified professional with any questions you may have regarding a legal matter.

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Navigating Through This Module

This module is designed to be interactive. If a slide is interactive or includes an activity, instructions will be provided.

When you see the book icon, click on it for more information.

When you see the “i“ icon, click on it for slide instructions.

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Learning Objectives

At the end of this module, you will be able to:

Understand how the law can assist with collaboration and coordination for emergency preparedness, response, and recovery;

Describe different types of intergovernmental agreements to enhance cross-jurisdictional coordination; and,

Describe recommendations for successful intergovernmental agreements.

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Federal – Tribal Relationship: Government – to – Government

Before we begin, there are five levels of jurisdiction to consider:

Tribal;

Federal;

State;

Local; and,

International.

The federal government has a trust obligation to Tribal Nations.

As part of its trust responsibilities, United States government agencies assist and support Tribal Nations in preparing for, responding to, and recovering from emergencies. For example, there is a Tribal part of the National Response Framework, which helps federal agencies coordinate response to incidents involving federally recognized Tribes.

In addition, the United States government recognizes a nation-to-nation relationship with Tribal governments.

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State – Tribal Relationship: Government – to – Government

States have no authority over Tribal governments unless expressly authorized by Congress. While federally recognized Tribes generally are not subordinate to states, they can have a government-to-government relationship with other sovereigns, as well.

Furthermore, federally-recognized Tribes possess both the right and the authority to regulate activities on their lands independently from state government control. They can enact and enforce stricter or more lenient laws and regulations than those of the surrounding or neighboring state(s) where they are located. Yet, Tribes frequently collaborate and cooperate with states through compacts or other agreements on matters of mutual concern such as environmental protection and law enforcement.

Indeed, poor Tribal-state relationships can have a significant negative affect on disaster operations, as such states do not make efforts to include Tribal governments in disaster planning and do not assist Tribal Nations with disaster response and recovery.

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Collaboration and Coordination

Some Tribal Nations have a relatively small land base that is highly integrated into the surrounding non-Indian community, while other Tribal Nations have a large land base that may be more self-contained.

In addition, as a result of federal policies, a significant portion of Indian land was sold or transferred to non-Indian parties but remained within reservation boundaries. As a result, trust lands, fee lands, and lands owned by Tribes, individual Indians, and non-Indians are mixed together on the reservation, creating a checkerboard pattern. This checkerboard leads to unique jurisdictional challenges, as different governing authorities (for example, county, state, federal, and Tribal governments) claim the authority to regulate, tax, or perform various activities within reservation borders.

Generally speaking, Tribal Nations recognize that it may be to their mutual benefit to formalize arrangements with neighboring jurisdictions and state governments to combine resources in the event of a disaster or emergency.

In 1953, the federal government transferred some of its jurisdiction to certain state governments under Public Law 83-280, commonly referred to as P.L. 280. Under P.L. 280, five states (California, Minnesota, Nebraska, Oregon, and Wisconsin) were given criminal jurisdiction over crimes committed in Indian Country. These states are referred to as the “mandatory” states because they had no choice in accepting this jurisdiction. Alaska was added as a mandatory state in 1958. P.L. 280 also authorized the remaining states to acquire this same jurisdiction at their option.

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Cross-Jurisdictional Coordination

Although states have limited jurisdiction on Tribal lands, Tribal governments may decide to enter into agreements with state, local, or other Tribal governments regarding cross-jurisdictional issues related to emergency preparedness.

Inter-governmental agreements address common areas of mutual interest and concern. They allow governments to formalize arrangements regarding response authority, use of personnel and resources, and data sharing under certain circumstances.

Inter-governmental agreements include: mutual aid agreements, memoranda of understanding, memoranda of agreement, service sharing agreements, and compacts.

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Cross-Jurisdictional Coordination: MAA

Mutual Aid Agreement or MAA: An agreements among emergency responders to lend assistance across jurisdictional boundaries in times of need.

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Cross-Jurisdictional Coordination: MOU

Memorandum of Understanding or MOU: An agreement between the parties that does not need to include legally enforceable promises.

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Cross-Jurisdictional Coordination: MOA

Memorandum of Agreement or MOA: A written understanding between the parties that is legally binding and holds parties to their commitment or partnership.

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Cross-Jurisdictional Coordination: Service Sharing Agreement

Service Sharing Agreement: A formal contractual relationship to share funding, personnel, or resources (e.g., equipment, supplies, space) across jurisdictions.

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Cross-Jurisdictional Coordination: Compacts

Compact: Another word for agreement, usually between jurisdictions on matters in which they have a common concern.

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Cross-Jurisdictional Coordination (cont.)

These cross-jurisdictional agreements may also be informal and unwritten, which some Tribal leaders feel allows more flexibility and time for a relationship among Tribal and non-Tribal partners to develop.

The California Rural Indian Health Board (CRIHB) conducted a study of cross-jurisdictional sharing arrangements between Tribes and counties in California. The study survey, which included 83 Tribes and 29 corresponding counties, found that 46 of the 83 Tribes (55%) and 22 of the 29 counties (83%) in California reported having a cross-jurisdictional sharing arrangement. Of those with these cross-jurisdictional arrangements, 26% of Tribes reported formal arrangements, while 74% reported informal “handshake” agreements.

Click on the book icon for more information about the California Rural Indian Health Board Cross-Jurisdictional Sharing Research Project.

Book Icon Content: California Rural Indian Health Board Cross-Jurisdictional Sharing Research Project- Visit https://crihb.org/wp-content/uploads/2017/02/CJSToolkit_Final.pdf for the Cross-Jurisdictional Sharing Between Tribes and Counties for Emergency Management Toolkit Visit the California Rural Indian Health Board website at https://crihb.org/

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Reasons to Enter into Intergovernmental Agreements

So, why enter into intergovernmental agreements?

Intergovernmental agreements provide a creative opportunity for Tribes and their neighboring communities upfront, before a disaster strikes or a public health emergency occurs, to address outstanding differences.

They also provide the opportunity to leverage collective resources in manpower, equipment, funding, and the like to address disaster response and recovery.

Why are intergovernmental agreements particularly useful in preparedness?

In times of stress, such as when a natural disaster strikes or a public health emergency occurs, it is incredibly helpful to have legal uncertainty resolved in advance.

In addition, entering into intergovernmental agreements before an active emergency establishes and specifies roles, responsibilities, and authorities.

Moreover, intergovernmental agreements can foster and nurture increased trust, communication, and an understanding of mutual priorities among Tribal Nations and their neighboring jurisdictions.

If intergovernmental agreements are not in place and there is no coordination across jurisdictions, people can get hurt or even die. This can lead to liability issues. Also, because Tribal governments are not guaranteed access to disaster funds like Public Health Emergency Preparedness (PHEP) funds, they may have budgetary limitations regarding emergency response. In addition, not having intergovernmental agreements in place might impact the good neighbor relationship you have with other jurisdictions.

Please see the last module in this series for some best practices related to intergovernmental agreements.

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Intergovernmental Agreements

An example of an intergovernmental agreement is the Olympic Regional Tribal-Public Health Collaboration and Mutual Aid Agreement, entered into by 7 Tribes and 3 local health departments located in the Olympic peninsula of Washington State.

By entering into this agreement, all 10 partners agreed to aid and assist each other and share resources in the event of a public health incident, disaster, or emergency, or “related to day to day public health services, communicable disease outbreak, isolation and quarantine public health services, or any other public health service or action permitted by law.”

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Recommendations for Successful Intergovernmental Agreements

Here are some recommendations to establish successful intergovernmental agreements.

The first is mutual respect and understanding between the partners. It is highly likely that the governments involved will be structured differently, as Tribal, state, and local governments vary widely in terms of governance structure, leadership, size, capacity, infrastructure, and range of services. All potential partners should take time to learn about one another so that there is mutual respect and understanding.

Another important part of a successful partnership is a shared purpose or goal. All governments want to ensure the health and safety of their communities; however, it is important to clarify specific goals when entering into intergovernmental agreements.

Before starting down the road of signing an intergovernmental agreement, it is a good idea to have an established relationship between the partners so that there is time to build trust and respect. Along the same lines, it is wise to use the same designated personnel for communication and planning purposes. This will help build personal relationships, which are highly beneficial in emergency situations. Having the support of your Tribal council and community is essential prior to entering into an intergovernmental agreement.

Finally, having a neutral organization to convene the meetings may be beneficial.

For example, the American Indian Health Commission Mutual Aid Agreement Project facilitated a collaborative process for Tribes and local health jurisdictions in certain regions of Washington State to develop mutual aid agreements.

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Summary

In summary,

The law can assist with collaboration and coordination for emergency preparedness, response, and recovery.

Intergovernmental agreements can enhance cross-jurisdictional coordination and provide the opportunity to address issues and resolve disputes in advance before a disaster or emergency occurs.

Recommendations to ensure successful intergovernmental agreements include mutual respect and understanding, having a shared purpose or goal, and having an established relationship in place prior to entering into an agreement.

This is the second module in a series of 4 modules.

See module 4, Tribal Legal Preparedness Best Practices Toolkit, for best practices related to legal preparedness, including audio and video recordings from Tribal Nations across the country.

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Resource Library

The Tribal Legal Preparedness Project has developed a resource library to provide relevant resources to Tribal Nations seeking to enhance their legal preparedness capacity. While most resources have a Tribal focus, some resources are included that are generally applicable to legal preparedness for public health emergencies and natural disasters. Please visit tlpp.pitt.edu to access the resource library.

Additionally, a printable word version of this module will be available for download upon completion of this module. To access the document, please click on the resources tab in the top right hand corner of this module.

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Thank You

Thank you for viewing this learning module, which was developed by the Tribal Legal Preparedness Project, directed by Tina Batra Hershey, a professor at the University of Pittsburgh Graduate School of Public Health, with assistance from many agencies, organizations, and individuals.

The Tribal Legal Preparedness Project wishes to thank the Centers for Disease Control and Prevention, ChangeLab Solutions, the United South and Eastern Tribes, and the Northwest Tribal Emergency Management Council, as well as many Tribal Nations across the country for their support and input during the development of this learning module. The names of Tribal entities involved in the listening sessions that informed the development of this module were not provided unless permission was granted by the Tribal Nation.