This essay was originally published on June 25, 2020 in Volume 73 of the Stanford Law Review. The following is the introduction. Footnotes have been removed.
American Indian people know all too well the impact of pandemics on human populations, having barely survived smallpox outbreaks and other diseases transmitted during the generations of early contact between themselves and Europeans. Indian people also suffered disproportionately from the last pandemic to hit the United States about a century ago. Some things have changed for the better for Indian people, namely tribal self-governance, but many things are not much better, including the public health situation that many Indian people face.
Modern tribal governments navigate a tricky legal and political environment. While tribal governments have power to govern their own citizens, nonmembers are everywhere in Indian country, and the courts are skeptical of tribal authority over nonmembers. For example, after the Navajo Nation announced a 57-hour curfew for the weekend of April 10-13, 2020 (Easter weekend for many), the sheriff’s offices of Cibola and McKinley Counties sent letters to the tribe insisting that the tribe refrain from citing nonmembers during the curfew, further insisting that nonmembers are governed more “full[y]” by the Governor of the State of New Mexico. A few weeks later, the Governor of South Dakota threatened litigation against tribes who planned to enforce a quarantine roadblock on reservation roads. Further, the fact that state and local officials are the ones sending these letters is a deeply consequential signal to nonmembers, one that encourages opposition to tribal regulation. Of course, allowing nonmembers to flout the tribe’s curfew defeats the purpose of the curfew. During a pandemic, limiting tribal power could lead to tragedy.
This short essay argues for tribal regulatory powers over nonmembers in Indian country during a pandemic. This should be an easy argument, but federal Indian law makes it more complicated than it should be.
Read the full essay here.