Upholding Tribal Sovereignty and Promoting Tribal Public Health Capacity During the COVID-19 Pandemic

Tribes are sovereign nations with authorities and responsibilities over their land and people. This inherent sovereign authority includes the right to promote and protect the health and welfare of their communities. The COVID-19 pandemic has brought national attention to the health inequities experienced by American Indian and Alaska Native communities. The sovereign legal authority for Tribes to respond to this pandemic has received less attention. This Chapter describes some, but not all, of the urgent legal issues impacting Tribal response to the COVID-19 pandemic. It describes and identifies gaps in federal Indian health policies and highlights how Tribes have exercised their sovereignty to respond and promote resilience in the wake of COVID-19. It also provides examples of intergovernmental challenges. It highlights how ignorance of or animosity to federal Indian law has led non-Tribal governments to infringe on Tribal sovereign rights during the COVID-19 pandemic. It ends by providing a list of recommendations on how law can be better used to support Tribal responses as the pandemic unfolds.This paper was prepared as part of Assessing Legal Responses to COVID-19, a comprehensive report published by Public Health Law Watch in partnership with the de Beaumont Foundation and the American Public Health Association

Beyond the Pandemic: Historical Infrastructure, Funding, and Data Access Challenges in Indian Country

The COVID-19 pandemic has disproportionately impacted Tribal communities, in part, due to the historical inequities that Tribes have faced for centuries. As sovereign nations, Tribes have the authority to self-govern their people and land. However, the federal government has a special trust responsibility and treaty obligations to Tribes that it often has failed to fulfill. As a result, many Tribal communities live in inferior living conditions as compared to their non-Native counterparts. This Chapter builds on the prior report to explore the historical inequities Tribes experience and how they have been compounded by the pandemic. More specifically, it identifies persistent challenges with infrastructure in Indian Country. It also provides a legislative update on laws directly related to the pandemic as well as laws that have the potential to address some of the issues underlying the pandemic. It concludes by identifying additional recommendations to right these historic wrongs and build on the resiliency shown by Tribes during the pandemic. This paper was prepared as part of the COVID-19 Policy Playbook: Legal Recommendations for a Safer, More Equitable Future, a comprehensive report published by Public Health Law Watch in partnership with the de Beaumont Foundation and the American Public Health Association

Innovations in Opioid Law and Policy Interventions Workshop: Summary of Proceedings

In 2017, Indiana University, in cooperation with Indiana Governor Eric Holcomb and community partners, launched the Grand Challenge: Responding to the Addictions Crisis initiative, a university-wide effort to advance interdisciplinary research and interventions in response to the substance abuse crisis affecting Indiana and the nation. The “Legal and Policy Best Practices in Response to the Substance Abuse Crisis” project is one of sixteen funded under Phase 1 of the Grand Challenge. In July 2018, and as part of this project, the research team convened a group of national experts to discuss legal and policy innovations to respond to the opioid use disorder (OUD) crisis. This report summarizes the proceedings of this workshop and updates some of the recommendations made by the team in their March 2018 Preliminary Report. During the workshop, experts answered targeted questions relating to the challenges in implementing law and policy recommendations to respond to the addiction crisis, as well as identified gaps in the current research. Participants provided examples of innovative interventions to respond to this crisis across four primary topic categories: (1) Criminalization; (2) Public Health; (3) Treatment; and (4) Effectuating Change

Emergency Declarations and Tribes: Mechanisms Under Tribal and Federal Law

Article published in the Michigan State International Law Review

State statutes and regulations related to human papillomavirus vaccination

A cross-sectional analysis of human papillomavirus (HPV) vaccine statutes and regulations from states and the District of Columbia in the United States (U.S.) was conducted from September-November 2018 to advance analyses of policy impact on HPV vaccination uptake. A search was conducted using WestlawNext, a legal research database. Statutes and regulations relevant to the study were analyzed and coded based on their legal attributes into ten broad coding questions and several sub-questions. Of the 212 laws identified by the initial search string, 93 (43.9%) reference HPV vaccination in statute or regulation. An additional three laws were added following subsequent review. There was a total of 52 statutes and 44 regulations from 34 states and the District of Columbia. Most laws were related to developing and distributing HPV vaccination materials for parents, and mechanisms to fund and reimburse for the vaccination. This study can be used by policymakers in jurisdictions that are considering establishing HPV vaccination promotion interventions in state law and highlighting the limited statutory and regulatory efforts that have been implemented to promote HPV vaccination. Importantly, this study can also be used to conduct evaluations of the efficacy of statutory and regulatory strategies in increasing HPV vaccination rates

Legal and Policy Best Practices in Response to the Substance Abuse Crisis: A Preliminary Report

In 2017, Indiana University, in cooperation with Indiana Governor Eric Holcomb and community partners, launched the Grand Challenge: Responding to the Addictions Crisis initiative, a university-wide effort to advance interdisciplinary research and interventions in response to the substance abuse crisis affecting Indiana and the nation. The “Legal and Policy Best Practices in Response to the Substance Abuse Crisis” project is one of sixteen funded under Phase 1 of the Grand Challenge. This preliminary report outlines the initial findings of the project

Tribal Water Rights: Exploring Dam Construction in Indian Country

Introduction – Tribal Environmental Public Health The environment, particularly, land and water, play a powerful role in sustaining and supporting American Indian and Alaska Native communities in the United States. Not only is water essential to life and considered — by some Tribes — a sacred food in and of itself, but environmental water resources are necessary to maintain habitat for hunting and fishing. Many American Indian and Alaska Native communities incorporate locally caught traditional subsistence foods into their diets, and the loss of access to subsistence foods represents a risk factor for food security and nutrition status in indigenous populations.1 Negative health outcomes, including obesity, diabetes and cancer, have accompanied declines in traditional food use in indigenous communities throughout the United States.2 This paper will outline the legal and policy framework related to Tribal water rights, with a particular focus on the environmental public health impacts of dam construction in Indian Country. The paper will spotlight three distinct projects — the Dalles Dam on the Columbia River, the Elwha River Dams on the Elwha River, and the Pick-Sloan Missouri River Basin Program — to highlight impacts related to health and well-being, water rights, and land use

Critical Race Theory and the Trust Responsibility

Last September, former President Donald J. Trump signed an executive order, ironically titled “Combating Race and Sex Stereotyping,” that prohibited the inclusion of critical race theory and implicit bias in federal trainings. The order deemed statements such as “racism ‘is interwoven into every fabric of America’” as both harmful and inappropriate in federal trainings. The Office of Management and Budget also issued a memorandum stating that anti-racism trainings are “divisive, un-American propaganda.” With the executive order and memorandum in place, federal agencies were required to suspend or cancel funding for federal contractors that use federal funds to support trainings covering the topics outlined in the order. The impact of these actions was immediate. Events on gender diversity and Hispanic heritage, among others, were canceled. Stanford University issued a checklist for its employees to evaluate whether diversity training materials were impacted—and prohibited—by the executive order. A variety of organizations issued statements opposing the Trump Administration’s actions, including the deans at University of California law schools and members of the history department at the University of North Carolina, Chapel Hill. A group of race theory scholars published a response that both condemned the attempt to stifle discussions of race and racism and highlighted the Trump Administration’s conflation of critical race theory with diversity trainings as “an example of the profound ignorance the current Administration has as it pertains to studying and understanding race in the United States.” Legislators including U.S. Senator Cory Booker (D-N.J.) also expressed concern that the order would chill protected speech and requested that the Senate Judiciary Committee convene a hearing to assess the constitutionality of the prohibitions. Missing from these and many other statements against the critical race theory ban is the ban’s impact on the relationships between Tribes and the federal government. Tribal sovereignty and the federal Indian trust responsibility were also absent from the Trump Administration’s analysis on the perceived harms of critical race theory and racial bias training. Challenges to critical race theory and implicit bias trainings fail to consider the essential value of such trainings on federal-Tribal relations and the federal Indian trust responsibility. The Bureau of Indian Affairs describes the trust responsibility as “a legally enforceable fiduciary obligation on the part of the United States to protect Tribal treaty rights, lands, assets, and resources, as well as a duty to carry out the mandates of federal law with respect to American Indian and Alaska Native tribes and villages.” This responsibility is based on history, treaties, case law, and legislation. As the U.S. Supreme Court stated in Seminole Nation v. United States, when carrying out treaty obligations with tribes, the federal government “is something more than a mere contracting party.” Instead, under a “humane and self-imposed policy which has found expression in many acts of Congress and numerous decisions of this Court,” the federal government “has charged itself with moral obligations of the highest responsibility and trust.” The trust responsibility therefore encompasses both a fiduciary relationship and a moral one. To establish whether there has been a breach of the fiduciary aspect of the trust responsibility, federal courts require that breach of trust claims include both express statutory language supporting a fiduciary relationship as well as comprehensive federal control and supervision of the trust. Unfortunately, as one federal district court recently concluded, “the United States has mismanaged Indian trusts for nearly as long as it has been trustee.” As a result of this mismanagement, Tribes and their members have brought suit, asserting breaches of trust and winning billions of dollars in settlements. But what of the rest of the trust responsibility—the moral obligation? As with the chronic mismanagement of fiduciary responsibilities to Tribes, here too, the federal government has failed. The existing legal framework fails to offer a meaningful mechanism to adjudicate instances of federal failings of its trust responsibility when the United States government reneges on its moral responsibilities. Perhaps one step that the federal government can take in meeting its moral obligation under the trust responsibility to Tribes is ensuring the inclusion of Tribal critical race theory in federal trainings, providing additional education to those responsible for developing regulations and policies affecting Tribal communities. In 2005, Professor Bryan McKinley Jones Brayboy (Lumbee) proposed a nine-tenet framework for Tribal critical race theory, or TribalCrit. These tenets acknowledge both colonization and white supremacy as pervasive across federal policies related to Indigenous peoples. TribalCrit also centers Tribal sovereignty and cultures as essential to changing how federal policies are oriented. As Professor Brayboy writes, TribalCrit “is potentially a better theoretical lens through which to describe the lived experiences of Tribal peoples.” Deploying a TribalCrit lens can facilitate “a better understanding of the needs of Indigenous communities” and help illuminate the institutional and societal changes required to implement programs that actually benefit Indigenous communities. This theoretical framework is a tool that regulators and policymakers can embrace to “analyze the problems encountered by American Indians” thoroughly and effectively—which, in turn, promotes a more morally responsible way of governing of Tribal peoples. Between 2013 and 2017, I served as a faculty member for the Working Effectively with Tribal Governments course at the Centers for Disease Control and Prevention alongside Tribal public health practitioners. The curriculum, developed almost exclusively by Tribal members, incorporated many of the tenets of Professor Brayboy’s TribalCrit. How could such a curriculum not acknowledge colonization, racism, and genocide as being historical and modern anchors in federal policies related to Tribes, American Indians, and Alaska Natives? In December 2020, a federal district court judge enjoined the executive order’s ban following a complaint filed by The Diversity Center and other LGBTQ rights organizations, which argued that the ban was unconstitutional. More recently, President Joseph R. Biden reversed President Trump’s executive order on his first day in office, signing an order of his own. In response, conservative organizations have threatened to challenge President Biden’s executive order in court, and some commentators have questioned the value of critical race theory at all. Should such legal challenges gain traction, I hope that Tribes and the federal trust responsibility are not again omitted when assessing the impact of a critical race theory ban. Tribal critical race theory is not only an important component of federal trainings on Tribes and Indigenous peoples but is also essential to substantive federal policies and regulations. Embracing Tribal critical race theory is essential to prevent continuing harm to Tribal sovereignty and Indigenous peoples by federal actors. It is crucial to the federal government’s trust responsibility to Tribes