American Indians face a grave ordeal in the COVID-19 pandemic. With awful poverty, dire rates of preexisting health conditions, and an already-broken rural health-care system, the death rates on reservations are sure to be higher than just about anywhere else in the country. One additional factor is making fighting the pandemic even harder for tribes: the legal complexities that govern American Indian reservations.
To fight this pandemic, governments around the world have needed to impose—and enforce—restrictions on people’s freedom to move and gather. But many Indian Country residents are not members of a tribe, and some scorn tribal regulatory authority. This creates a legal ambiguity that a federal court—perhaps the Supreme Court—will need to resolve: Can the tribes even, say, issue a citation to nonmembers violating curfew?
As I argued in a recent article published in the Stanford Law Review Online, this is not merely a theoretical question. The risk that people will oppose the public-health dictates of a tribe grows greater when state and local officials reject tribal authority. For example, in Northern California, nonmembers egged on by a county official reopened a sit-down diner on the Yurok Tribe’s reservation, defying the tribal government’s order to keep all businesses closed. In New Mexico, Cibola and McKinley County law-enforcement officials insisted that the Navajo Nation could not enforce its curfew on nonmembers. In South Dakota, the governor demanded that the Cheyenne River Sioux Tribe and the Oglala Sioux Tribe either undo or relax their plans to blockade reservation roads to restrict people’s movement, leading to federal litigation. Of course, allowing nonmembers to flout a tribe’s stay-at-home order defeats the purpose of the stay-at-home order.