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Lawsuit questions Montana COVID vaccine ban on tribal lands

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An economic development agency in Cut Bank filed a lawsuit claiming a state organization has "no jurisdiction" on tribal land to enforce a Montana law that prohibits COVID-19 vaccine mandates. 

Glacier County Regional Port Authority is suing the Montana Human Rights Bureau and Department of Labor and Industry Commissioner Laurie Esau. The case will be tried in U.S. District Court in Great Falls, and Chief Judge Brian Morris will oversee it. 

HB 702, passed by Republican lawmakers and signed by Gov. Greg Gianforte in May 2021, aims to prevent workplaces and customers from discrimination based on their vaccination status.

According to the lawsuit, when HB 702 was passed, the Blackfeet Tribal Business Council had implemented Tribal Ordinance 121, which required mandatory vaccination against COVID-19 for people attending in-person meetings. 

The tribal ordinance states its purpose is “to protect and promote the safety of the tribal workforce.”

The lawsuit focuses on J.R. Myers, who allegedly tried to attend an in-person meeting in Browning but was not vaccinated against COVID-19.

The lawsuit states Myers filed a complaint against the Port Authority with Montana Human Rights Bureau. The bureau determined the Port Authority — which provides small business loans, grants and other assistance — had engaged in illegal discrimination when it required in-person attendees at the meeting to show proof of vaccination.

The Port Authority requests that a judgment would declare the state bureau lacks jurisdiction on tribal lands. Tribes are sovereign nations, meaning they possess the right to govern their territory and internal affairs.

The plaintiff also seeks to enjoin the defendants from enforcing HB 702 against the Port Authority, award the Port Authority costs for attorney fees and grant the Port Authority other relief that the court deems fair.

Several lawsuits have challenged HB 702, but this case stands out in that it challenges the Montana Human Rights Bureau’s ability to enforce the law. Previous cases, like Netzer Law Office v. Montana and Montana Medical Association v. Knudsen sought to strike down the law itself.

Blackfeet Nation and COVID

While tribes in Montana often implemented stricter safety protocols than the state, Native Americans were disproportionately hospitalized and killed by COVID-19.

The Blackfeet Nation sacrificed vital tourism dollars in 2020 when it closed the east-side gates to Glacier National Park to protect reservation residents from the virus. The tribe also implemented mask mandates, curfews, remote learning and other initiatives to curb the spread. In July, the tribe reported that 67 community members had died of COVID-19 since the pandemic began.

COVID-19 was the leading cause of death among Native Americans in Montana in 2020, while it was the third leading cause of death among all Montana residents, according to a Department of Health and Human Services report.

Between March and October 2020, Native Americans in Montana accounted for 19% of COVID-19 cases and 32% of COVID-19 deaths statewide. Indigenous people comprise about 6.7% of Montana’s population.

As of Aug. 31 — more than a year after vaccines were distributed — Native Americans accounted for 8% of COVID-19 cases and 11% of COVID deaths in Montana.

Native Americans face persistent health and health care disparities, which, according to a recent Indian Health Service report, “are a result of centuries of structural discrimination, forced relocation, reduced economic opportunities and chronic underfunding of health care.”

The report also cited barriers to care, historical trauma, discrimination and poverty as other factors contributing to health disparities.

Though Native Americans have access to Indian Health Service, the agency has long been criticized for being chronically underfunded. The same report stated that past funding for the agency addressed about 48.6% of the health care needs for the population it serves. 

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