This article by Katheryn Houghton first appeared in Kaiser Health News and is republished with permission.
November 17, 2022
JR Myers’ frustration grew when he read the email: In order to attend a meeting of the local Economic Development Council in Browning – the largest community on the Blackfeet Indian Reservation in northwest Montana – he had to show that he had been vaccinated against Covid-19 was.
It was November 2021. Six months earlier, Montana’s Gov. Greg Gianforte, a Republican, had signed legislation prohibiting companies and governments from discriminating against people who are not vaccinated against Covid or other diseases. To Myers, requiring attendance at the Glacier County Regional Port Authority Convention — formed by local governments in Glacier County’s tribal and non-tribal areas — appeared to violate that law.
Myers, who is not a tribal member, lives in Cut Bank, just east of the reservation. He said he didn’t attend the meeting at Blackfeet Community College in Browning because he didn’t want to disclose his vaccination status – adding that Montana law protects him from it. Instead, he filed a complaint with the state.
“When this local government agency started adopting this vaccination card concept, I reacted immediately because I didn’t want them to set a precedent. I wanted them to follow Montana law,” he said.
Montana’s vaccine discrimination law is one of the most controversial pandemic-related measures passed by the Republican legislature in 2021. Its introduction has caused confusion in schools, healthcare facilities and counties. And it has been challenged as unconstitutional by health organizations, doctors and nurses.
Myers’ complaint exposed a new conflict: whether the state can enforce the Blackfeet Reservation Act over the tribe’s right to administer its own rules to protect the health of its people as a sovereign nation within the borders of the United States.
State officials began reviewing Myers’ complaint to determine whether the Port Authority’s decision to review participants’ vaccination status violated state law, according to court documents. In response, the Port Authority filed a federal lawsuit, saying the state has no jurisdiction to enforce the law on tribal lands. His attorneys cited a Blackfeet tribal ordinance that they say established vaccination rules for the reservation.
This month, the Blackfeet tribe joined the lawsuit as plaintiffs, saying they should be allowed to defend themselves against “an unlawful attempt” to enforce state law within the reservation’s borders and protect their rights to self-government found in an 1855 treaty was agreed with the US, according to court records. The tribe asked the court to bar the state from responding to Myers’ complaint and any other attempt to enforce the law on the reservation, according to court documents filed Nov. 15.
Law professors and attorneys said this appears to be the first time laws related to a pandemic have been challenged in court over an alleged violation of tribal sovereignty.
“This case is really about the state of Montana’s attempt to assert its jurisdiction within the territory of the Blackfeet Nation,” said Mark Carter, an attorney for the Native American Rights Fund, a nonprofit organization that represents the tribe. “What happens on the reservation directly impacts the health and safety of Blackfeet citizens and everyone on the reservation.”
Other states have resisted pandemic restrictions: At least 25 states outside of Montana have permanently reduced public health powers in 2021.
Montana’s vaccination ban is the subject of a separate lawsuit being brought by the Montana Medical Association, in which plaintiffs argue the law is unconstitutional and prevents healthcare facilities from providing a safe environment for patients. A decision by US District Judge Donald Molloy was due in mid-November.
A third lawsuit, filed by a Sydney law firm in state court, also seeks to bring down the law. A Richland County judge previously declined to prevent the state from enforcing the law while the case is pending, and on Nov. 16 the state Supreme Court upheld the judge’s decision.
The US Constitution recognizes sovereign tribes as nations with the power of self-government. Shannon O’Loughlin, CEO and attorney for the Association on American Indian Affairs, said that under longstanding federal law, tribal sovereignty takes precedence over state law when it comes to protecting the health and welfare of tribal people.
Kekek Stark, law professor and co-director of the Indian Law Program and Margery Hunter Brown Indian Law Clinic at the University of Montana, said a crucial question in jurisdictional disputes is whether a state is attempting to enforce “fee country” rules — this may refer to a property within the boundaries of a reservation owned by non-Native Americans or seek to regulate a corporation incorporated under state law. He cited whether a tribal nation has a law that differs from state law as another key factor, adding that tribal law takes precedence.
“The lack of regulation, in a way, allows the other sovereign — whether it’s the state or the FBI — to occupy the space,” Stark said. “It’s not absolute that they could still regulate; It just becomes an easier argument if the tribe hasn’t.”
Conflicting rules of tribes and states are not new. As Montana lifted its mask mandate and took steps to stop local health officials from imposing restrictive Covid measures, Blackfeet Nation leaders stuck with or strengthened their rules. Covid-related deaths among Native Americans far exceeded state and national averages, in part due to structural racism that has created health inequalities among Indigenous peoples for generations.
As of 2020, at the height of the pandemic, tribal leaders closed the eastern entrance to Glacier National Park — prioritizing the opportunity to slow the spread of the virus over the economic engine of tourism. Throughout the pandemic, they’ve also enforced stay-at-home fines, mandated mask mandates based on case counts, and imposed a $5,000 fine on anyone who ignored quarantine orders. The preventive measures worked. The reserve has seen a steady decline in Covid cases and the federal Centers for Disease Control and Prevention pointed to Blackfeet Nation as an example to follow.
Port Authority lawyers allege that when their congregations returned to tribal land last year, a Blackfeet tribal ordinance was in effect that included “mandatory vaccination with exceptions,” according to court documents. Carter of the Native American Rights Fund said the regulation allows some facilities to invoke vaccination mandates. At the time of the meeting, Blackfeet Community College, in line with its Covid guidelines for the 2021-22 school year, was requiring everyone on campus to provide proof that they had been vaccinated against Covid.
Blackfeet tribal officials and Port Authority attorney Terryl Matt did not respond to requests for interviews.
The Human Rights Office of the Montana Department of Labor and Industry is responsible for enforcing the law. Jessica Nelson, a spokeswoman for the department, said the agency is not commenting on pending litigation.
In court documents, the state argued that the case did not address the validity of a tribal ordinance or the right of Blackfeet to enforce that ordinance, if one exists. Instead, state attorneys wrote, the issue is whether indigenous organizations such as the Port Authority could escape state control of tribal lands.
Prosecutors allege Montana officials want to make sure non-Native Americans are not discriminated against “simply because they trespass on tribal lands,” according to court records.
The Blackfeet tribe has the power to regulate tribal and non-tribal members alike on its lands under the 1855 treaty, lawyers for the tribe argued in court documents.
The state also questioned whether the Port Authority held the meeting on tribal lands to circumvent state laws. In an affidavit filed in October, Brenda Schilling, the Port Authority’s executive director, said the Browning meeting was held because the organization was returning to pre-pandemic routines and that it was a matter of fairness to the people who live on the reserve. She said attendees could tune in remotely.
Myers, who filed the original complaint against the Port Authority, said he felt people in the community saw him as opposed to tribal sovereignty. But that’s not his goal, he said, adding he wants to hold the port authority accountable.
“What laws do they obey? Which jurisdiction? You cannot serve two masters,” he said, referring to state and tribal laws.
KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism on health issues. Along with Policy Analysis and Polling, KHN is one of the three major operational programs of the KFF (Kaiser Family Foundation). KFF is a donated non-profit organization that provides information on health issues to the nation.
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This story can be republished for free (details).KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism on health issues. Along with Policy Analysis and Polling, KHN is one of the three major operational programs of the KFF (Kaiser Family Foundation). KFF is a donated non-profit organization that provides information on health issues to the nation.
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