The Homeland Security Act of 2002 was passed in response to the national security threats that were identified after the terror attacks on New York City and Washington, D.C. on September 11, 2001. The purpose of this act was to simply create the legal basis for the development of the Department of Homeland Security, to define terrorism as:
“The term ”terrorism” means any activity that-(A) involves an act that-(i) is dangerous to human life or potentially destructive of critical infrastructure or key resources; and (ii) is a violation of the criminal laws of the United States or of any State or other subdivision of the United States; and (B) appears to be intended-(i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping,” (6 USC 101, sect. 2 (15)(a & b))
as well as to outline the responsibilities of the Department of Homeland Security and the responsibilities vested in each member within this new Federal government agency. (Anonymous, 2002.)
While openly accepted by both politicians and the general public, the Homeland Security Act of 2002 had a few flaws that were corrected with various amendments and presidential executive orders in the years following its becoming a law. Unfortunately, one problem that this Act had that was not corrected was the misclassification of U.S. Tribal governments as “local governments.” (Griggs, 2003.) While this may not seem like a big problem, it severely handicapped the relationship between Tribal Governments and the Federal government, and also created serious legal inconsistencies between the Homeland Security Act of 2002 (Anonymous, 2002), the U.S. Constitution, FEMA Tribal Policy (FEMA, 1998), a Presidential Policy memorandum issued by President Clinton in 1994 (FEMA, 1998) and other existing Federal policy statements, agreements, statutes and treaties.
Overview of Homeland Security Act of 2002
The Homeland Security Act of 2002 was perhaps the most influential Federal law passed in the last century. In fact, it caused the first major reorganization of the U.S. Federal government since the 1940s. (Anonymous, 2003.) Part of this reorganization was the creation of one of the first new Federal government agencies in decades, the Department of Homeland Security. The purpose of this agency was to “strengthen the executive branch of the Federal government to better meet the threat to our homeland posed by terrorists.” (Anonymous, 2001.) This would be done by “preventing terrorist attacks within the U.S.; [reducing] the vulnerability of the U.S. to terrorism; minimizing the damage, and assist[ing] in the recovery, from terrorist attacks that do occur within the U.S.” (Anonymous, 2002.) These responsibilities are met by empowering the appointed personnel that staff the Department of Homeland Security with the authority and resources to guide existing and newly created Federal agencies and departments towards the goals established by the Department of Homeland Security (DHS).
Department of Homeland Security – Personnel
The Department of Homeland Security is staffed primarily with professionals appointed by the President of the United States. The head of the Department of Homeland Security is the Secretary of Homeland Security. This person “has direction, authority and control over it [Department of Homeland Security.]” (Anonymous, 2002.) In addition to heading this Agency, the Secretary also has the authority to create grants, contracts and cooperation agreements to meet the goals of the Department of Homeland Security. They also have the responsibility to coordinate the Department of Homeland Security’s activities with non-federal entities, to meet as needed with the National Security Council and to issue regulations. (Anonymous, 2002.) To help meet all of these responsibilities the Secretary of Homeland Security can hire a Special Assistant to assist him in his responsibilities, as well as reassign portions of his responsibilities to other people and departments of the Department of Homeland Security and the Federal government. (Anonymous, 2002.)
Under the leadership of the Secretary of Homeland Security are seven Deputy and Under Secretaries. These positions are filled by a Deputy Secretary, an Under Secretary for Information Analysis, an Under Secretary for Border and Transportation, an Under Secretary for Science and Technology, an Under Secretary for Emergency Preparedness and Response, a Director of Bureau of Citizenship and Immigration Services and an Under Secretary for Management. (Anonymous, 2002.) Finally, this agency is authorized to hire up to twelve Assistant Secretaries to fill administrative and public relations responsibilities. (Anonymous, 2002.)
Department of Homeland Security – Responsibilities
The specific responsibilities that are vested in the Department of Homeland Security range from the oversight of federal grants by the Secretary of Homeland Security to the collection and analysis of information and intelligence on terrorist activities to the management of the Federal Emergency Management Agency, a.k.a. FEMA. (Anonymous, 2002.) The responsibilities that are outlined in the Homeland Security Act of 2002 are distributed between the appointed members of the Agency. For example, the Under Secretary of Emergency Preparedness and Response is responsible for:
“(1) helping to ensure the effectiveness of emergency response providers to terrorist attacks, major disasters, and other emergencies; (2) with respect to the Nuclear Incident Response Team (regardless of whether it is operating as an organizational unit of the Department pursuant to this title)-(A) establishing standards and certifying when those standards have been met; (B) conducting joint and other exercises and training and evaluating performance; and (C) providing funds to the Department of Energy and the Environmental Protection Agency, as appropriate, for homeland security planning, exercises and training, and equipment; (3) providing the Federal Government’s response to terrorist attacks and major disasters, including-(A) managing such response; (B) directing the Domestic Emergency Support Team, the Strategic National Stockpile, the National Disaster Medical System, and (when operating as an organizational unit of the Department pursuant to this title) the Nuclear Incident Response Team; (C) overseeing the Metropolitan Medical Response System; and (D) coordinating other Federal response resources in the event of a terrorist attack or major disaster; (4) aiding the recovery from terrorist attacks and major disasters; (5) building a comprehensive national incident management system with Federal, State, and local government personnel, agencies, and authorities, to respond to such attacks and disasters; (6) consolidating existing Federal Government emergency response plans into a single, coordinated national response plan; and (7) developing comprehensive programs for developing interoperative communications technology, and helping to ensure that emergency response providers acquire such technology.” (6 USC 312, sect. 502.)
The responsibilities that are assigned to each member of the Department of Homeland Security are related directly to the focus of their department, i.e. the Under Secretary of Science and Technology is responsible for science and technology development, management and use, while the Under Secretary for Borders and Transportation is responsible for monitoring and managing U.S. borders and transportation systems that the U.S. has vested interests in. (Anonymous, 2002).
While the Homeland Security Act of 2002 was designed to ensure that all of the various government entities that make up the collective United States of American have access to funding for homeland security activities and to ensure that each government entity has what it needs to secure its corner of the United States a simple error in the definitions section of this Act has compromised its potential effectiveness at preventing, fighting and recovering from acts of terrorism. This error was including Tribal governments under the definition of “local governments.” (Anonymous, 2002).
Tribal Government Rights Infringements
One of the biggest errors that was written into the Homeland Security Act of 2002 was found in the definition of “local governments.” Within this definition Tribal Governments were classified as local governments (6 USC 101, Sec. 2 (10)(b)), this however, is not true. The U.S. Constitution (U.S. Government), the U.S. Supreme Court (International Association of Emergency Managers, 2003) and numerous federal agencies, including FEMA (FEMA, 1998) which is under the control of the Department of Homeland Security (Anonymous, 2002), all identify Tribal Governments as sovereign entities that are neither local governments nor state governments.
The sovereign nature of Tribal Governments gives them a special and direct relationship with the Federal government. (International Association of Emergency Managers, 2003.) This relationship is supported by the U.S. Constitution and Supreme Court rulings which clearly recognize and uphold Tribal government’s rights to retain their “inherent powers of self-government and self-determination.” (International Association of Emergency Mangers, 2003 and Grigg, 2003.) Unfortunately, these powers are limited and infringed upon by the definition error found in the Homeland Security Act of 2002. As a result of this infringement several problems have developed since the Act’s inception.
Homeland Security Funding Problems and Lack of Inclusion
The first problem that was created by the misclassification of Tribal Governments by the Homeland Security Act of 2002 was FEMA funding problems. Instead of getting their homeland security funds directly from the Federal government, as was appropriate, Tribal Governments have been forced to apply for these funds through regional and state government pass through entities. (Pallone, 2005). This is not only an inconvenience to Tribal Governments, but it has also created a situation where past prejudices against Tribal Governments and general oversights by state and regional governments, have reduced the access that Tribal Governments have to FEMA funds for homeland security projects and activities. (Pallone, 2005). This lack of access to FEMA assistance has created not only a vulnerability to terrorism, natural disasters and manmade disasters for the Tribal governments, but also for surrounding local and state governments as well. (NCAI, 2004).
One example of an oversight issue created by the misclassification of Tribal Governments as a local government can be seen in how the October 18, 2007 Homeland Security Presidential Directive (HSPD) #21 was received by Tribal Governments. The purpose of this HSPD was to “establish the National Strategy for Public Health and Medical Preparedness.” (Bush, 2007 and Neel, 2007). Unfortunately, it relied on the definitions and classification of Tribal Governments that the Homeland Security Act of 2002 established and did not address how Tribal Governments could participate in this strategy as unique and sovereign entities. Instead, it assumed that Tribal Governments would act like local governments in the implementation of the strategy by developing: biosurveillance systems, countermeasure stockpiling and distribution strategies, mass casualty care strategies and strategies for community resilience. (Bush, 2007). As a result of not recognizing the unique governmental structure and function of Tribal Governments, many tribes either were not aware of the HSPD 21 or they opted not to implement its recommendations. Fortunately, however, a few Indian based organizations, such as the National Indian Health Board, reviewed the document and urged all Tribal Governments to implement the measures and strategies outlined in the directive to sure up health/medical security gaps in their region. (Neel, 2007).
Corrective Legal Actions
S.578 – Tribal Government Amendments to the Homeland Security Act of 2002
In response to the infringements of Tribal Government rights several corrective bills have been introduced to the Senate and to the House of Representatives. One of the leading proposed bills was S.578 “Tribal Government Amendments to the Homeland Security Act of 2002.” The purpose of this bill was to correct the definition and classification errors related to Tribal Governments within the Homeland Security Act of 2002. These corrections would remove Tribal Governments from the definition of “local governments,” it would recognized the fact that Tribal Governments are sovereign entities and it would recognize that their relationship to the Federal government is different from that of local governments and state governments. (Grigg, 2003). Furthermore, it would create clauses that specifically addressed how Tribal Governments would fit into the Homeland Security framework. With these corrections Tribal Governments would be able to fix Homeland Security activity funding problems that most tribes have had since 2002 (Pallone, 2005) which stem from the requirements outlined in the Homeland Security Act of 2002 that force defined “local governments,” which include Tribal Governments, to get Federal funding for homeland security projects and activities indirectly through local region and state governments. (Pallone, 2005).
In addition to affecting the Homeland Security Act of 2002, S.578 would also impact the wording of the Cyber Security Enforcement Act of 2002, the Omnibus Crime Control and Safe Streets Act of 1968, the Federal Rules of Criminal Procedures, the United States of America Patriot Act and the Foreign Intelligence Surveillance Act of 1978. (Anonymous, 2009). The changes made to these legal documents would basically just identify that Tribal Governments are independent, sovereign entities and that they will be contributing to the shaping, management and enforcement of these legal documents and efforts (Anonymous, 2009) as such.
The people and politicians that opposed S.578 cited passages from the U.S. Constitution that they claimed made this bill unconstitutional. For example, passages from Article IV of the U.S. Constitution such as “the citizen of each state shall be entitled to all the privileges and immunities of citizens in the several states,” “federal government has the power to guarantee that each state will have a republican form of government” and no state can be created “within the jurisdiction of any other state” (http://www.house.gov/house/Constitution/Constitution.html) all conflicted with what would happen with Tribal Governments if the bill passed. For example, Tribal Governments would have the power to form whatever type of government that they want (already in force), they would have the power to “enforce and adjudicate violations of applicable criminal, civil and regulatory laws committed by a person on land under the jurisdiction of the Indian tribal government” (Grigg, 2003) and they would also be able to form their government inside of an existing state (already in force). All of these arguments are moot because they rely on the misconception perpetuated by the Homeland Security Act of 2002, that Tribal Governments are the same type of government body as local governments. This simply is not true. Tribal Governments are sovereign federal governments and therefore are not subject to the provisions and restrictions enumerated in Article IV of the U.S. Constitution. Instead they are governed by a special set of laws, statutes and treaties that guide their interactions with the U.S. Federal government and their sovereign rights within this country. Regardless of the inadequacy of the objections to the passing of S.578, it was never passed.
H.R. 3266 – The Faster and Smarter Funding for First Responders Act of 2003
Another corrective bill that was introduced to the House of Representatives was H.R. 3266 “the Faster and Smarter Funding for First Responders Act of 2003.” (NCAI, 2004). This act was intended to address the funding complaints that Tribal Governments had in regards to being required to indirectly apply for FEMA funds through state governments. Unfortunately, like S.578, H.R. 3266 has yet to be fully reviewed by the House of Representatives or approved as a law.
H.R. 5530 – Tribal Government Homeland Security Coordination and Integration Act
The third corrective bill that was introduced, was introduced to the House of Representatives as H.R. 5530 “Tribal Government Homeland Security Coordination and Integration Act. (Anonymous, 2009). The purpose of this act was to formally integrate Tribal Governments into the Department of Homeland Security and its objectives. One way that this Act would accomplish this would be to “establish an Office of Tribal Government Homeland Security within the Department of Homeland Security.” Unfortunately, like the other corrective bills introduced during the last six years, this bill died on the floor. (Anonymous, 2009).
FEMA, the Federal Emergency Management Agency, is now controlled by the Department of Homeland Security. It is managed specifically by the Under Secretary of Emergency Preparedness and Response. (Anonymous, 2002). However, in regards to Tribal Policy, FEMA and the Homeland Security Act of 2002 are not on the same page. According to the official FEMA Tribal Policy, released in September of 1998, FEMA’s position is that it “operates within a government-to-government relationship with federally recognized Tribal Governments.” (FEMA, 1998.) This position is based on the Policy Memorandum issued in April of 1994 by President Clinton. This memorandum clearly requires the U.S. government to work directly with Tribal Governments and not through indirect methods, such as through state pass through entities. (FEMA, 1998).
There are specific passages and clauses found within the FEMA Tribal Policy that clearly do not support the Homeland Security Act of 2002’s definition of Tribal Governments as local governments, nor do they support the Act’s requirement of Tribal Governments to receive their Homeland Security grant money indirectly through state agencies. For example, in the introduction of this policy it states that “the Federal Emergency Management Agency recognizes and acknowledges that American Indian and Alaska Native Tribal governments hold a unique status in the United States of America with the rights and benefits of sovereign nations. The Federal Emergency Management Agency has developed this policy to affirm the Agency’s understanding, support and pursuit of a government-to-government relationship with American Indian and Alaska Native Tribal governments.” (FEMA, 1998).
Tribal Governments and Homeland Security
The exclusion problems that Tribal governments now face with homeland security activities and FEMA funding are not unique. In the past, Tribal Governments have frequently been left out of emergency and disaster planning, management and coordination efforts. (http://www.viejas.com/vbki/html/pnart_testimony.htm). This is not because Tribal Governments are not interested in participating in mutual aid agreements or lending their help to protect national security, in fact, the opposite is true. Native Americans have participated in every major war that the United States have fought and they have routinely volunteered their services and resources to help respond to emergencies and disasters that have occurred in the United States. (http://www.viejas.com/vbki/html/pnart_testimony.htm). According to Anthony R. Pico, the Chairman of the Viejas Band of Kumeyaay Indians Tribal Government, his tribe has entered into several voluntary emergency and disaster mutual aid response agreements with their non-incorporated neighbors (non-tribal member communities).
(http://www.viejas.com/vbki/html/pnart_testimony.htm). However, none of the incorporated governments that are their neighbors in San Diego County nor the State of California have offered to include the Kumeyaay Indians Tribal Government in local or state level emergency and disaster planning or homeland security planning activities. Furthermore, Pico illustrated that Tribal Governments want to play a more active role in securing the territories held by the United States and they want to contribute their efforts and resources toward meeting the homeland security goals that the other governmental bodies within the United States strive for, the protection of the safety of the United States so that it is a safe place to raise a live, work and raise a family. (http://www.viejas.com/vbki/html/pnart_testimony.htm).
The desire of Tribal Governments to participate in the security of the United States goes beyond philanthropy and national pride. It is a matter of logic. According to the Bureau of Indian Affairs there are 562 Tribal Governments and Alaskan Native Governments that are federally recognized. These Tribal Governments have over 1.7 million members and they own over 66 million acres of land. (Bureau of Indian Affairs, 2009). In California alone there are 107 recognized Tribal Governments, 17 of which are found in San Diego County close to the U.S./Mexico border. (http://www.viejas.com/vbki/html/pnart_testimony.htm). Of the 7,400 miles of patrolled international borders in the United States, 260 miles are considered to be in “Indian Country.” (Pallone, 2005). Furthermore, Tribal Governments own lands on which vast stores of natural resources, water works, nuclear power plants, dams and other sensitive resources are located. All of these factors make it imperative for Tribal Governments to be involved in the “comprehensive maintenance of the homeland security of the United States.” (Grigg, 2003).
The Homeland Security Act of 2002 is the cornerstone for the latest era in national security strategies implemented by the United States government. Its goals and purposes were very ambitious, to reorganize the United States Federal government so that it could more effectively and efficiently deal with the modern threats to the security of the country including terrorism, natural disasters and manmade disasters. The primary tool for dealing with these modern threats is the Department of Homeland Security, a new Federal agency that was established by the Homeland Security Act of 2002. This Agency would not only house the Federal agents that would create the national security strategies for the upcoming years, but it would also determine policy, fund distribution and emergency preparedness strategies for the United States.
Unfortunately, while this Act was widely accepted as a positive step forward in the country’s Federal emergency and disaster management system, one error written into the Act created the potential for serious legal and stability issues. This error was the misclassification of Tribal Governments as “local governments.” This misclassification forced Tribal Governments, that had already been granted the right to be sovereign entities by the United States Constitution, U.S. Supreme Court rulings and several other Federal documents including treaties, executive orders and policies, to act as a local government and apply for FEMA funds for homeland security projects and activities through state agencies. This process not only impeded their rights as sovereign entities to deal directly with the Federal government, but it also created several barriers that prevented many Tribal Governments from gaining access to FEMA funds at all.
When the error was pointed out little was really done by the Federal government. A few corrective bills were introduced to both the Senate and the House of Representatives, including S.578 “Tribal Government Amendments to the Homeland Security Act of 2002,” H.R. 3266 “the Faster and Smarter Funding for First Responders Act of 2003” and H.R. 5530 “Tribal Government Homeland Security Coordination and Integration Act.” Each of these corrective Acts was designed to fix the classification problem found in the Homeland Security Act of 2002, as well as provide provisions within the Homeland Security Act of 2002 that would give Tribal Governments an official role in homeland security. Unfortunately, as of today, none of these corrective bills have been made into laws.
It is confusing that the United States’ Federal government is so stubborn in their preservation of the classification of Tribal Governments in the Homeland Security Act of 2002 document as a local government. This is because in nearly every other Federal law and policy, that is not a derivative of the Homeland Security Act of 2002, Tribal Governments are specifically defined as sovereign entities that have a special relationship to the United States’ Federal government. Even the official FEMA Tribal Policy acknowledges that Tribal Governments are sovereign entities and that they need to be dealt with in a government-to-government relationship. The legal precedence for Tribal Governments’ sovereignty has been established by authoritative sources like the U.S. Supreme Court, the U.S. Constitution and by numerous treaties, federal laws and policies, by not following these precedents with the Homeland Security Act of 2002 in regards to the classification of Tribal Governments, is legally irresponsible and nonsensical. Fortunately, this is an issue that could easily be resolved with an addendum or amendment.
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