How does Tribal sovereignty operate during COVID-19?
Throughout the COVID-19 pandemic, Tribal nations have set an example for sound, future-oriented policy on a local, state, and national level. Tribes have created curfews, stay-at-home orders, call centers, and incident command systems to help slow the spread of the novel coronavirus; these are all examples of sovereignty in action.
The national news media have covered some of these actions during the COVID-19 pandemic. Have you noticed that the term sovereignty has appeared more frequently in the news during the last few months? Native Governance Center Executive Director Wayne Ducheneaux II explains, “When you have major news outlets covering Tribal safety checkpoints and other instances where Tribes are exerting their sovereignty, Tribes’ actions are no longer insular to their nations. People in the general population are interested and want to know more.”
Sovereignty allows Tribes to make necessary decisions to protect their citizens; sovereign governments know best what their people need. When thinking about how Tribal sovereignty operates during a global pandemic, let’s start with the basics: What is sovereignty? And, why do Tribes have sovereignty?
“Sovereignty is something that Tribes have had for time immemorial,” Wayne Ducheneaux II notes. Sovereignty is not granted, but rather, it’s recognized. For example, the United States has recognized Tribes’ sovereignty through treaties since its founding. The U.S. Constitution even states that treaties are “the supreme law of the land.” In order to make a treaty, two sovereign nations must come together, recognize each other’s right to self-determination, and create an agreement.
The key takeaway here? Tribal nations have always been and will always be sovereign.
On March 26, 2020, the Leech Lake Band of Ojibwe Tribal Council enacted a stay-at-home order in response to COVID-19. The emergency order mandated that all residents of the Leech Lake Reservation stay in their homes, except for when engaging in essential activities. The State of Minnesota enacted a similar stay-at-home order in March 2020; however, this order did not include the Leech Lake Band and other Minnesota Tribes due to their status as sovereign, independent nations.
The Non-Removable Mille Lacs Band of Ojibwe temporarily closed its Grand Casino locations on March 16, 2020. The Band explained the decision as follows: “While there have been no reported cases of COVID-19 at either property, Grand Casino sees this as a responsible, proactive decision that places the wellbeing of its Associates, Guests, and local communities at the forefront.”
The Cheyenne River Sioux Tribe requires that all motorists passing through the checkpoint area stop, declare their reason for travel, and answer a brief health survey. Those who do not comply, or are non-residents arriving from COVID-19 hotspots, are asked to re-route around the Reservation. The checkpoints serve as just one part of the Tribe’s COVID-19 mitigation strategy. For example, if a Tribal member passing through a checkpoint reports visiting a coronavirus hotspot, that person is asked to self-quarantine for 14 days and is monitored along the way.
When a question about sovereignty arises, such as in the case of Tribal checkpoints, Tribes use historical precedents such as court cases and treaties for guidance. Rosebud v. South Dakota (1989) affirms that the State of South Dakota does not have jurisdiction over any highways (state or federal) on reservations. In addition, the 1868 Fort Laramie Treaty mentions the Cheyenne River Sioux Tribe’s ability to exclude non-members (those deemed “bad men” based on their moral or criminal activities) from their reservation. The Tribe subsequently incorporated this “bad men” clause into its constitution.
Treaties and court cases affirm the Cheyenne River Sioux Tribe’s ability to install highway checkpoints. So, why does the State of South Dakota continue to insist on the checkpoints’ illegality? Wayne Ducheneaux II, a citizen of the Cheyenne River Sioux Tribe, explains: “You have a state and a governor who do not fully understand Tribal sovereignty. They don’t even fully understand their own state law, federal law, and federal court cases. Federal law and federal precedent are on the side of the Cheyenne River Sioux Tribe.”