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Excerpted From: Katherine Florey, Toward Tribal Regulatory Sovereignty in the Wake of the Covid-19 Pandemic, Arizona Law Review 399 (Summer, 2021) (319 Footnotes) (Full Document)


KatherineFloreyAs the COVID-19 pandemic spread throughout the United States, members of the Oglala Lakota Nation knew they were facing a serious problem. Although the tribe at the time had no reported cases (a situation that would last through the beginning of April 2020), it had been clear for some time to tribal leaders that, without action, the pandemic could spread to tribal lands with catastrophic consequences. Tyler Yellow Boy, a member of the tribe's pandemic task force, noted the potentially devastating combination of challenges the tribe was facing: a particularly vulnerable population due to age and chronic conditions, a shortage of beds and ventilators, and difficulties in obtaining supplies and funds. As of April 4, 2020, for example, the tribe still had only 24 COVID-19 test kits; President Julian Bear Runner estimated that medical resources were inadequate to handle an outbreak of more than ten people.

Worried about what could happen if COVID-19 gained a foothold, the tribe swung into action quickly to “wall[] off the outside world” and help keep tribe members safe from the disease. On March 8, 2020--just a few days after New York Mayor Bill DeBlasio had urged residents to “get out on the town despite coronavirus,” and President Trump suggested shutting 21 COVID-19 patients out of the country to help to keep U.S. numbers down tribe curbed nonessential travel by its employees and urged nontribal visitors to postpone their trips to the Pine Ridge Reservation. Two days later, as the first COVID-19 cases were identified in the surrounding state of South Dakota, the tribe declared a state of emergency. Church volunteers who had been helping to repair houses were instead asked to stay away. Later in March, the tribe issued a shelter-in-place order applicable to “[a]ll individuals currently living within the Pine Ridge Indian Reservation,” and shortly thereafter imposed a curfew and passed an ordinance closing the reservation to nonresidents for nonessential travel. Finally, in a move that would later cause resistance from South Dakota's governor and subsequent legal action, the tribe established checkpoints, staffed by volunteers and a security firm, at entrances to the reservation in order to ensure compliance with the tribe's limits on nonresident entry.

Despite these measures, in early April, the tribal council learned that Juliana Parker, a non-Native teacher living on the reservation with her husband, had tested positive for COVID-19 following travel to Colorado that the tribal council believed to be in violation of the shelter-in-place order. (Parker denied this, saying she had made the trip before the order was in place.) After a 9-9 tie ultimately broken by President Bear Runner, the tribal council voted to banish the couple from the reservation. The tribal power to exclude, which has a historical foundation in some tribes' practices but which has more recent grounding in courts' often landowner-like conception of tribal sovereignty, has long been somewhat controversial, and some tribe members objected to the decision. President Bear Runner, however, while acknowledging that there were “[two] sides of the story,” emphasized the potential danger to tribe members and the need for non-Natives on the reservation to follow the rules; further, he noted, the banishment was subject to appeal. Shortly after this action, the tribal council imposed a strict temporary lockdown.

Unfortunately, COVID-19 eventually established a larger presence on the Pine Ridge Reservation. On May 11, two reservation residents tested positive for COVID-19, prompting the tribe to impose another brief lockdown. Despite the tribe's efforts, cases have continued to grow. Nonetheless, delaying the onset of COVID-19 allowed the tribe time to obtain supplies and develop surge plans, as well as prevent much of the harm that might have resulted from uncontrolled spread. Despite its severe lack of resources (the Pine Ridge Reservation is located in the poorest county in the United States), the tribe for many months had significantly fewer cases per capita than the surrounding state of South Dakota, which as of March 2021 had not imposed a shelter-in-place order or mask mandate despite having among the highest per capita case rates in the United States. While the South Dakota surge ultimately affected the Oglala Lakota Nation as well, the tribe has since emerged as a leader in vaccination efforts, and cases have dwindled to a handful per week as of March 2021.

The media has often highlighted the devastating toll COVID-19 has taken in many parts of Indian country that, to be sure, is part of the story. Many of the challenges tribes face--fragile tribal finances, a high chronic-disease burden, locations far from medical facilities--make COVID-19 particularly dangerous for Native people. But there are other parts of the picture as well: on the one hand, the often resourceful and creative measures tribes have taken to combat COVID-19 and, on the other, the troublesome doctrinal landscape that has complicated their efforts to do so.

While each tribe's COVID-19 response has been different, similarities exist across many tribal approaches. In particular, many tribes recognized early on the distinct threat that COVID-19 posed to them and took aggressive steps to combat the virus. The Cheyenne River Sioux Tribe, located in South Dakota on the Cheyenne River Reservation, implemented checkpoints and took a variety of other actions, from requiring shoppers to be 16 or older (the rationale being that younger children might be unreliable social distancers) to setting up daily check-ins on elderly residents living alone. The Picuris Pueblo in New Mexico worked with state and federal authorities to set up a roadblock and pop-up testing site, requiring that everyone from “visiting construction workers and homebound seniors to the clerks at the pueblo's sole general store” test negative before setting foot on tribal land. The Navajo Nation imposed a strict stay-at-home order on March 20, 2020, at a time when only a handful of states had done so. Further, even as many jurisdictions in the United States were slow to recognize the importance of masks, Navajo Nation President Jonathan Nez was wearing a mask in public by mid-March, and the Navajo Nation went on to mandate face coverings in public places throughout the Nation on April 17. Elsewhere within the United States, tribes confronted COVID-19 with similarly swift action.

But despite these efforts, the tribal response to COVID-19 has been complicated by an unusual circumstance of tribal sovereignty. Since the U.S. Supreme Court's 1981 decision in Montana v. United States, tribes have virtually no regulatory jurisdiction over nonmembers when they are acting on privately owned land within tribal borders. In other words, tribal power even in Indian country extends unambiguously only to people who are formally enrolled members of the tribe group that is highly unlikely to include everyone living on the reservation and, for some tribes, may be only a minority of residents.

To be sure, Montana allows two exceptions to this rule, one of which allows the tribe to regulate conduct by nonmembers that “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” This exception sounds potentially broad, but courts have interpreted it extraordinarily narrowly, sometimes suggesting that the regulation in question must be “necessary to avert catastrophic consequences.” Also problematically, courts applying the exception “disregard the aggregate effects of the conduct tribes attempt to regulate, asking only whether any particular instance, taken in isolation, actually poses [a] ... threat to the very existence of the tribal community.” Thus, for example, tribal courts may lack jurisdiction to hear a tort claim involving a traffic accident because, even though widespread negligent driving could gravely imperil the population's well-being, a single incident (even if a sign of a broader problem) does not.

Of course, measures to control a deadly pandemic to which a tribe's population is especially vulnerable would certainly seem to meet anyone's definition of the sort of needed-to-avert-catastrophe regulation that Montana permits. Indeed, the threat of epidemic illness is all too real to many tribes because of their historical experience with disease and, in some cases, the small numbers and advanced age of their members. The Picuris Pueblo's lieutenant governor, for example, noted disturbing parallels between COVID-19 and the devastating diseases brought to Native people by European colonists, explaining that “[i]f the virus does reach us, that could be the end of Picuris.” Other pueblos--some of whose members number only in the hundreds--similarly regard COVID-19 as an “existential threat” to their communities. COVID-19 thus seems like the sort of emergency for which the health-and-welfare exception was tailor-made. Further, even beyond the health-and-welfare exception, tribes have another power to rely on--that is, the power to exclude members and nonmembers alike from tribal lands, which underpins the legality of banishment and likely permits lesser, included actions such as subjecting incoming visitors to border checkpoints.

Yet while a robust argument exists that tribes are acting fully within their powers when they act forcefully to combat COVID-19, it remains no more than that--a never-tested argument in an area of law where massive uncertainties exist about the particulars. No specific case law describes what actions tribes may and may not take during a pandemic, and courts have reached conflicting results on how tribes may use their exclusion power more generally. There is no tribal equivalent of the Tenth Amendment reserving powers to tribes, nor is there any tribal equivalent of Jacobson v. Massachusetts, the foundational Supreme Court case that recognizes states' power to take aggressive action, including mandatory vaccination and quarantine, to combat a public health emergency. Surely Montana permits tribes to do something to stop nonmembers from bringing infection to the reservation, but how far can tribes go? How long may the measures remain in place? How sharply can the tribal response diverge from the policies of surrounding states?

These issues are not merely theoretical. State and local authorities have challenged the legality of tribal orders, and nonmembers have shown a propensity in many areas to flout COVID-19-related directives--whether by stealing tribal supplies, failing to inform tourists passing through tribal areas of tribal public health restrictions, opening a restaurant for dine-in service prohibited by tribal rules, camping in areas closed to visitors, or arguing that tribal curfews do not apply to them. In combatting a virus that moves swiftly and often stealthily, particularly where testing capacity is inadequate, tribes need certainty, the ability to respond with speed, and the power to enforce their orders against the recalcitrant. The Montana framework makes that difficult and, in some cases, potentially impossible.

If tribal powers even in the face of a once-in-a-century pandemic are not firmly established, tribal authority to deal with more commonplace problems and everyday emergencies is far less so. As the Supreme Court itself has recognized, much conduct causing significant harm to tribe members is simply not covered by the Montana health-and-welfare exception. (Montana' s second exception for “consensual activity” is also unhelpful in most situations; some courts have suggested it means little beyond allowing tribes to enforce agreements they make in their own courts. Tribes are often helpless against nonmember reckless drivers, meth cookers, and check kiters. Technically, they cannot even direct nonmembers acting on private property to control their vicious dog or dispose of their garbage properly. The blunderbuss tool of banishment--which often engenders bad feeling and which tribes are generally reluctant to undertake tribes' sole option for dealing with persistent troublemakers who do not have formal membership in the tribe. Indeed, because states and counties generally also lack power over nonmembers on reservations so, because states and tribes are separate sovereigns independent of each other may be no power apart from the federal government that can restrain nonmembers from doing virtually anything they wish within tribal borders. Matthew L.M. Fletcher has observed that conduct by nonmembers in Indian country is “some of the least governed activity in the United States.” And although restrictions on tribal criminal jurisdiction over nonmembers is also a significant contributor to this problem, limits on regulatory power mean that--issues of enforcement aside--tribes technically cannot even purport to make law applicable to nonmembers in most circumstances.

These problems are not new. For years, tribal advocates have, before the Supreme Court and many lower federal courts, argued for change that has failed to materialize. Decades of the Supreme Court rolling back tribal sovereignty have fostered among tribes and tribal lawyers a deep--and historically warranted--pessimism. This Article argues, however, that while the legal landscape for tribes remains uncertain in many ways, the issue of tribal regulatory authority presents a particularly strong case for a new approach at a time when change is possible.

Why might this be a particularly opportune time for progress on tribal regulation? To begin with, the pandemic--and its well-publicized disproportionate impact on tribes a vivid example of why it is important for tribes to be able to engage in rapid on-the-ground regulation of members and nonmembers alike. But the lessons of the tribal COVID-19 experience are not limited to the current crisis. While pandemics are unusual, other public health issues, both acute and slow-burning--not to mention other sorts of emergencies--are not. The tribal experience of COVID-19 clearly illuminates the inadequacy of tribes' Montana-constrained powers in ways that might focus attention on the problems with the status quo.

Further, the pandemic has happened at a time when the chance for progress at the Supreme Court is perhaps greater than it has been for decades. Justice Kagan and Justice Sotomayor have cast more pro-tribal votes than their predecessors and appear to have, in contrast with many previous justices, familiarity with and sympathy for the issues facing tribes. The nomination of Justice Gorsuch to Justice Scalia's seat has been an even more important development. Indeed, it is hard to think of a more consequential change in Supreme Court membership for tribal issues that often blur ideological lines. The significance of the change does not only lie in the fact that Justice Scalia was generally hostile to tribal interests while Justice Gorsuch is friendly to them--though that fact alone has tipped potential 4-5 losses for tribes into 5-4 wins. It is also that Justice Gorsuch possesses a strong understanding of the issues and doctrines surrounding tribal sovereignty that many previous justices have not. Although the Court's recent McGirt v. Oklahoma decision, authored by Justice Gorsuch, did not deal directly with tribal regulatory power, it evinces a fundamental recognition of tribes' sovereign character that has implications for the regulatory arena as well. While tribal advocates have made compelling arguments to the Supreme Court about tribal sovereignty for decades, the Court--or at least a majority of justices--may now be listening.

Judicial options for strengthening and clarifying the nature of tribal regulatory powers are many. A welcome route, to be sure, would be for the Court to entirely sweep away the Oliphant/Montana framework that has reigned--with little authority to back it and much destructive effect--for almost a half-century. But the Court could also take the more modest, incremental step of understanding Montana's health-and-welfare exception more expansively than it has where regulation is concerned, taking advantage of a door the Court has already left open.

This Article proceeds in four parts. First, it discusses the existing case law that has severely constrained tribes' ability to regulate uniformly throughout territory over which they are nominally sovereign. Second, the Article looks at the difficulties the Montana framework--in COVID-19 times and otherwise-- poses to effective tribal regulation and day-to-day governance. Third, the Article discusses the Supreme Court's relative neglect of tribal regulation (as opposed to tribal courts and taxation) since Montana, which suggests a need to revisit the issue in light of changed conditions. Finally, the Article evaluates prospects for reform in the Supreme Court.

[. . .]

For many years, tribes have made the best of their regulatory powers even while facing strict yet uncertain limits on the degree to which they can apply them to nonmembers within their borders. The same has been true during the COVID-19 pandemic. Many tribes recognized the risk of the disease early and acted quickly with approaches rooted both in science and community norms. While tribes have had some success fighting back a virus that remains a grave threat to them, the uncertainty of tribal regulatory jurisdiction over all people and land within reservations has complicated the tribal response.

Montana's limits on tribal regulation were never grounded in preexisting law and, from the start, have caused needless difficulties for tribes, as the COVID-19 response makes manifest. Changes in Supreme Court membership and recent decisions like McGirt suggest that the Court might, for the first time in decades, be open to a broader understanding of tribal authority. While tribal sovereignty has many dimensions, perhaps the most basic is the power to make rules that apply uniformly within tribal territory, regardless of who happens to own a particular parcel of land. It is time for the Court to change Montana's framework to allow tribes to do so.

Martin Luther King, Jr. Professor of Law, University of California, Davis, School of Law.

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