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Virus fight: Tribal sovereignty squares off against disease

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Blackfeet tribal business council

Plexiglass panes separate Blackfeet Tribal Business Council members Stacy Keller, left, and Vera Weaselhead to prevent the spread of COVID-19 infection in the Blackfeet tribal headquarters in the fall. 

MISSOULA — Since April 1, every person entering the Cheyenne River Reservation in South Dakota has to stop at a checkpoint to be screened for COVID-19.

An attendant stops each car and asks the passengers where they are going, whether they have any COVID-19 symptoms, and whether they’ve been in any hot spots.

Cheyenne River Sioux Tribal Chairman Harold Frazier said checkpoints along with mandatory stay-at-home orders and a mask mandate aim to protect reservation residents from contracting COVID-19. Members of the Oglala Sioux Tribe ordered similar barriers on their South Dakota reservation.

Across the country Native American tribes are using their self-governing powers to enact stricter rules than many state and county governments. At least in one state, a tribe has seen significant pushback against its exercise of sovereign powers. The question is, did the muscular and in some cases embattled efforts deliver the hoped-for result? Did it keep people safe from infection? Did it justify the equally dramatic sacrifice made by businesses and residents of reservations who lost billions of dollars in economic activity over the past year?

A study by the National Congress of American Indians found that “COVID-19 will cost Indian Country an estimated $50 billion in economic activity and place the livelihoods of 1.1 million tribal business workers — both Native and non-Native — at risk.” And a Center for American Progress report found that reservation casino closures in early March alone led to $4.4 billion in lost economic activity, including $997 million in lost wages. As many tribes have no land base from which to earn property taxes, their main source of income for public services for their communities are tribal casinos.

Yet while some Indian reservations made it through the summer with low or no coronavirus incidents, others were less fortunate. By June, the Navajo Nation had the highest infection rate in the nation — worse than New York. Indian people in New Mexico make up a tenth of the state population but reported 55 percent of the COVID cases. In Wyoming, Indian people comprise only 3 percent of the population but a third of the virus cases.

By Oct. 27, the Indian Health Service’s seven-day rolling average of positive tests found the Great Plains Area (North and South Dakota, Nebraska and Iowa) had the highest increase in case numbers at 23 percent, followed by the Billings Area (Montana and Wyoming) at 12.8 percent. IHS reports show that 42.1 percent of the nation’s 2.6 million Indians have been tested for coronavirus since March. Of the 1.6 million Indians who live within IHS service areas, 64.9 percent have been tested.

In June, when the rest of Montana decided to re-open for business after an initial two-month shutdown, the Blackfeet Nation voted to continue its lockdown through the fall. Montana Gov. Steve Bullock supported them, agreeing to continue work with the Blackfeet Business Council on any decisions regarding the reservation and the area around it, including the eastern gates of Glacier National Park.

The action seemed to work. The Blackfeet Reservation stayed COVID-free for more than three months. The wall started to crumble in late August, and then cracked open in September when cases went from 15 on the week of September 18 to 99 on the week of September 24. Glacier County caseloads have been in triple digits every week since.

“Since the beginning of the public health emergency, Glacier County, including the Blackfeet Reservation, has done an excellent job over the course of the public health emergency to prevent COVID-19 outbreaks, including closing the eastern entrance to Glacier National Park, stay-at-home orders, etc.,” Montana Department of Public Health and Human Services spokesman Jon Ebelt said. “We know they have taken this very serious, and they are taking the necessary steps to prevent further spread. But, just as the rest of the state has experienced an increase in cases largely due to close contacts and community spread, Glacier County has as well. And, as cases increase, so do hospitalizations and deaths.”

But in South Dakota, Gov. Kristi Noem saw the pandemic differently than the Sioux tribes. The Governor released a video message on August 26 as cases were growing statewide saying South Dakota was, “open for opportunity and always will be.” Noem refused to enact a statewide mask mandate or stay-at-home order.

By October, South Dakota had become one of the nation’s COVID hot spots. On Oct. 29, it posted the nation’s highest daily average of new cases over the past seven days. Events like the Sturgis Motorcycle Rally in August have been linked to spread of the infection to numerous other states.

Both the Oglala Sioux and Cheyenne River Sioux established checkpoints where travelers were asked about possible COVID-19 symptoms and what their business was on the reservations. The check-points take less than a minute to pass through, according to report by Center for American Progress, and kept Cheyenne River to a single case of COVID-19 through May.

By the end of October, there were more than 100 active cases on the reservation and health care facilities there reported being overwhelmed. Cheyenne River’s health center has only 8 beds, three hours away from the next closest critical care facility. Oglala Sioux in June had four beds and 24 Covid-19 test kids for a tribe of 50,000 people.

South Dakota reports almost 20 percent of its deaths are among Native people. On Oct. 16, the National Congress of American Indians demanded to know why Cheyenne River Sioux infected patients were being transported seven hours out of South Dakota to hospitals in Minnesota.

Nevertheless, the South Dakota government argued the checkpoints were illegal.

Gov. Noem sent a letter to the tribe, demanding that they remove the checkpoints. She alleged that the tribe didn’t have the authority to regulate use of state and federally-owned roads.

But it turns out, the state and federal government couldn’t legally shut down the checkpoints. As sovereign nations, tribes can’t be sued unless Congress authorizes the lawsuit. Tribal sovereignty means tribes can make laws that govern the people and land within their territory. But there is a catch. Tribes don’t own all the land within their reservations.

“Indian reservations are kind of like Swiss cheese,” said tribal sovereignty expert Matthew Fletcher of the Grand Traverse Band of Ottawa and Chippewa Indians. “The borders are there but Congress has opened up large swaths of land to non-Indians, non-members of the tribe. So you have a checkerboard pattern of land ownership within Indian reservations.”

Pre-pandemic, tribes couldn’t just turn away people who don’t pass a health screening, like the Cheyenne River Sioux have done since April. They could make laws that applied to tribally owned land and tribal members, but not to non-members living on the reservation, or to roads owned by the state or federal government.

But in unprecedented times like a pandemic, there are exceptions.

“The tribe has jurisdiction over every person within their reservation boundaries who is engaged in an act, or could engage in an act, that is a serious threat to the continuing existence of the tribe,” Fletcher said.

What that means exactly has been debated in the courts for decades. Courts haven’t ruled on whether a pandemic counts as a “serious threat to the tribe.”  The Cheyenne River Sioux, the Blackfeet, and many other tribes across the U.S. are betting it does. So are the Navajo Nation, Crow Nation, Northern Cheyenne Tribe, Fond du Lac Band of Lake Superior Chippewa, Hualapai Tribe, Isleta Pueblo, Eastern Band of Cherokee Indians, Lummi Nation, Nez Perce Tribe, Leech Band of Ojibwe, Reno-Sparks Indian Colony, Pyramid Lake Paiute Tribe and Confederated Salish and Kootenai Tribes.

“One person could come in, who is asymptomatic, who is not intending to do any harm to anybody, and could still create a terrible epidemic of COVID-19 within a reservation community,” Fletcher said.

So why did things go so differently for the Blackfeet in Montana than for the Cheyenne River Sioux Tribe in South Dakota?

“The governor of South Dakota is a very close friend of President Trump,” said Nikki Ducheneaux, a Cheyenne River Sioux tribal attorney and tribal member. “She felt that our exercise of our sovereignty was an affront to her authority over the state. And, of course, her narrative that COVID is no big deal.”

In June the Cheyenne River Sioux sued the federal government for pressuring them to take down the checkpoints. Ducheneaux is working on that ongoing lawsuit. She says when tribes back their sovereign rights with legal action, it reinforces the power they have to govern themselves. And as COVID-19 ravages the country, tribes see that unless they implement and enforce their own regulations, their very existence is at risk.

“The exercise of our sovereign authority is really the strongest weapon that we have at our disposal,” Ducheneaux said.

The COVID-19 coronavirus has no political affiliation or court standing. So the biological fight has to continue.

“One key point to make is that we know that Glacier County has the highest COVID testing rate in the state per capita,” said DPHHS’s Ebelt. “So, they are doing everything possible to test people to identify cases and break the chain of transmission. They continue to conduct surveillance testing in key settings, testing front line staff, nursing home, close contacts, etc.” 

This story was edited by Rob Chaney with support from Solutions Journalism Network.

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