By Victoria Sutton
Native American Nations are sovereigns and acknowledged in the U.S. Constitution. The U.S. Supreme Court has further established the sovereignty of Native Nations in early cases that form the foundation of Federal Indian Law.
During the COVID-19 declared federal public health emergency, the sovereignty of the Native American Nations to protect their citizens was essential. Understanding the federalism relationship between the federal, state, and local governments was essential but evident that it was lacking during the pandemic. In addition, during the pandemic, an attorney from the Western Cherokee Tribe wrote, “ . . . Indian tribes must continually determine which federal and/or state laws and regulations may or may not apply to the tribe and its entities and employees.” Further explaining this issue, the author gives this example: “. . . even though my tribe decided to voluntarily close our casinos and associated entertainment options, we were not legally required to do so under state ‘non-essential business’ closures.”
As another example, the Navajo Nation effectively used their jurisdictional authority to screen ingress of cars into their jurisdictional reservation lands to limit the spread of COVID-19. The states of Arizona and New Mexico, adjacent to the Navajo Nation had an understanding of the federalism relationship between states and Native Nations.
In July 2020, the Blackfeet Nation decided to close the access road through their reservation lands into Glacier National Park, to protect its citizens from COVID. The Governor of Montana was supportive and understood the federalism relationship.
In contrast, the Cheyenne River Sioux and the Ogala Sioux Nations, which are adjacent to South Dakota. These Native Nations also used their sovereign power to limit ingress through their borders to protect their citizens from the pandemic, but instead of the successful relationship seen with the Navajo and adjacent states, the governor of South Dakota took action to stop the Cheyenne River and Ogala Sioux Nations from protecting their own borders.
South Dakota Governor Kristi Noem tweeted on May 8, 2020: “Today I sent letters to two South Dakota tribes asking them to immediately cease interfering with or regulating traffic on US and State Highways and remove all travel checkpoints.” She threatened legal action in her letters, writing: “If the checkpoints are not removed within the next 48 hours, the state will take necessary legal action . . .” Later that day, she appeared to reverse her threat by indicating any action against the Native Nations would be federal. The federal government came to the Governor’s aid and took steps to initiate the dismantling of the checkpoints.
Whether it was largely a political statement (or a complete lack of understanding of constitutional federalism and Native Nations) it was an egregious waste of government resources and destructive to the ability of the Cheyenne River Sioux Nation to protect their own citizens as a sovereign government. Further, the U.S. Centers for Disease Control and Prevention has published data showing that Native Americans suffered up to 3.5 times more COVID deaths than other populations. So, it is part of a Native Nation’s sovereign role to protect its citizens particularly with a threat of disease and death at substantially higher rates than the surrounding populations.
In June 2020, the Cheyenne River Sioux Nation filed a complaint asking for an injunction in the U.S. District Court for the District of Columbia against the federal government for illegally forcing the Nation to dismantle their checkpoints to prevent non-citizens from entering the reservation over which they have sovereign jurisdiction. The federal government filed a motion to dismiss the complaint in September. By June 2021, the Cheyenne River Sioux Nation voluntarily removed their checkpoints, citing the drop in cases. Valuable time and resources were expended unnecessarily in South Dakota at a time where resources could have been better spent on safeguarding against exposures for vulnerable populations.
Going forward, it essential to educate state and local governments about the Constitutional sovereign status of Native Nations and their sovereign duty to govern themselves, especially so during a threat to citizens of their own Nations. The federal government fails not only their responsibility to protect the public’s health when they support or do not stop lawless activities of state and local governments — it is not only unconstitutional, but a continuation of federal genocidal policies toward Native Americans.
Victoria Sutton is the Paul Whitfield Horn Distinguished Professor of Law and Director of the Center for Biodefense, Law and Public Policy at Texas Tech University.
