NULR of Note

There has been much press coverage on the Navajo Nation’s struggle to contain the spread of COVID-19 on its lands. As of May 2, 2020, the Nation has 2,373 confirmed cases, and more than seventy deaths from the virus. These reports have noted the practical impediments the Nation faces in responding to the pandemic, including a high population of people with pre-existing health problems, the lack of easy access to health care, and the significant number of families without running water.

The Navajo Nation has issued several orders aimed at combating COVID-19. President Jonathan Nez and the Nation’s Commission on Emergency Management declared a state of emergency in early March. President Nez also issued Executive Orders closing the government and the schools. The Nation’s Health Command Center has issued several Public Health Emergency Orders requiring all residents to stay at home, imposing night and weekend curfews, ordering all visitors to leave, closing all non-essential businesses, and mandating the use of masks in public. Finally, the Navajo Nation Council closed all Navajo Nation-owned roads to visitors and tourists.

What is less often discussed is the legal environment facing sovereign Indian nations, like the Navajo Nation, when responding to the pandemic. The Navajo Nation is a sovereign government whose authority pre-exists the federal Constitution. The Nation has two ratified treaties with the United States—from 1849 and 1868—which recognize and affirm the sovereignty of the Nation. Indian tribes possess the common attributes of governmental authority, including the power to issue public health orders. Within their territory, they are the primary governments providing necessary services to tribal members and non-members alike, including combatting infectious diseases.

However, the United States Supreme Court has purported to limit tribal authority in significant ways, classifying tribes not as full sovereigns but as “Domestic Dependent Nations”.  In Oliphant v. Suquamish Indian Tribe, the Court ruled tribes have no criminal authority over non-Indians. In Montana v. United States, the Court limited tribal civil jurisdiction over non-members, presuming tribes have no authority, and required them to affirmatively prove one of two exceptions: (1) the tribe must show the non-member has a “consensual relationship” with the tribe or a member, and that the tribe’s regulatory action has a “nexus” to that relationship or (2)  the tribe must show the non-member’s actions would be “catastrophic” to the existence of the tribe.

The Navajo Nation and other tribes have pushed back on these limitations, arguing their inherent power to exclude non-members from their lands means they do not have to fulfill the two Montana exceptions. A line of cases in the Ninth Circuit holds tribes may regulate non-members on tribally-owned lands free from Montana’s restrictions. The result is a split between the Ninth Circuit and other circuits over whether the right to exclude, by itself, allows regulation of non-members, with other circuits requiring tribes to fulfill one of the two exceptions. Despite multiple attempts to bring the issue before the Supreme Court, the split remains today.

This legal complexity has immediate practical consequences for tribes’ ability to control the spread of COVID-19. Many tribes have significant numbers of non-members residing within their territory, employed as teachers, doctors, and other occupations, or married to tribal members. Further, due to the allotment of communal tribal lands, some non-Indian families have lived within a reservation for over a century, on lands the tribe does not own, precluding exclusion. Finally, the federal government and tribes have granted rights-of-way within their reservations for public highways. Non-members with no connection to the tribe at all may then enter and travel on the reservation’s highways, and the tribe has no legal right to exclude them .

The lack of clear, compact boundaries further complicates enforcement. Some tribal lands lie outside formal reservations in islands surrounded by state, federal, and private lands, creating a “checkerboard” of land statuses. A tribal public health order may then apply on one parcel, but not on the adjacent one.

Further, some reservations are adjacent to non-Indian “border towns.” The Nation, and other remote reservations, often lack significant numbers of grocery and other retail stores provided by border towns, which incentivizes tribal members to travel off the reservation. Often these communities, such as Gallup, New Mexico, also allow the sale of alcohol when the tribe does not. Travel to and from those towns has increased the spread of the virus and the tribes have no control over whether border towns honor tribal closure orders by closing businesses or restricting alcohol sales.

Because of these issues, tribes are at a disadvantage when issuing public health orders. While states apply their general police powers to all people present in their borders, tribes must constantly fight for legitimacy when doing the same. For some tribes like the Nation, there is very little non-Indian owned land within the reservation, and non-Indians residing there are a small minority who are unlikely to successfully challenge tribal public health orders. However, those tribes may still have issues restricting access on state highways within their reservations, and lack any direct ability to enforce orders in border communities. For other tribes where non-members own their own lands and may be a majority of the reservation population, public health orders may be even more difficult to enforce.

Whether through the power to exclude, Montana’s exceptions, or both, tribal nations should have the authority to restrict movement of anyone within their territory, even on state public highways, especially during a pandemic. As COVID-19 presents a “catastrophic” threat to many tribal communities, tribes can exert the maximum scope of their powers. If non-members challenge such authority, tribes should not hesitate to enforce their orders and defend their actions in tribal and federal court, as the stakes are too high to accept a narrow conception of tribal sovereignty. Given the practical and legal complexities, tribes might also attempt to work with surrounding governments to honor tribal orders,  assist in enforcing them, and collaborate on cross-jurisdictional responses to the virus (additional sources on file with author). Through these various approaches, tribes can maximize their resources to fight the pandemic and protect all people within their communities.

Paul Spruhan is Assistant Attorney General for the Litigation Unit of the Navajo Department of Justice. He lives with his wife and two children in Fort Defiance, Arizona, on the Navajo Nation.