Tribes navigate new COVID vaccine rules
Mandates may infringe on sovereign rights
The email chains and phone calls among tribal leaders and lawyers started soon after President Joe Biden announced a sweeping plan Thursday to vaccinate millions of people against COVID-19.
Large private employers must require employees to get vaccinated or face frequent tests. Federal employees, federal contractors and staffers of many health care facilities must also get vaccinated.
But how will those requirements affect tribal governments and the businesses they operate?
“We’re all trying to understand what the president’s six-point plan means,” said Mary Pavel, a Washington, D.C., attorney and former chief counsel for the Senate Committee on Indian Affairs.
“The answer may depend on a tribe’s specific situation, instead of being a blanket answer,” said Pavel, who belongs to the Skokomish Tribe of Washington.
As sovereign governments, tribes often employ dozens, hundreds or even thousands of both Native and non-Native workers. Some employees carry out basic public services such as road improvements. Others work at tribal business ventures, which range from ranches to casinos. In rural communities, tribal payrolls can be among the biggest. In Oklahoma, the Chickasaw and Choctaw nations are two of the largest employers in the state.
Neither have yet disclosed how they believe Biden’s new rules might impact them. But Chickasaw Gov. Bill Anoatubby issued a statement saying 78% of all employees — and 88% of health care workers — were fully vaccinated. In addition to employing thousands of workers in government jobs, the tribe in south central Oklahoma operates health care facilities and several businesses, including a casino near the Texas border advertised as the largest in the world. Job ads for Chickasaw health care positions list the COVID-19 vaccine as a requirement.
“We consistently implement effective workplace vaccination and testing guidelines, which provide a safer environment for our employees, citizens and guests,” Anoatubby said.
Tribal leaders all want to take steps to end the pandemic, just like any other public official, said James Meggesto, who leads the Native American law practice at Holland & Knight in Washington, D.C. But vaccine mandates may impact tribes’ sovereign rights to carry out their government as they each see fit. There isn’t a one-size-fits-all approach that’s going to work in Indian Country, he said.
“If they are undertaking something that is going to impact Indian Country and implicate tribal sovereignty, they ought to consult tribal governments,” said Meggesto, who is a member of the Onondaga Nation based in upstate New York.
Biden’s push to vaccinate up to 100 million Americans lands amid a deadly surge of the coronavirus. Deaths and hospitalizations began to rise in July and continued to climb. Unvaccinated people are faring the worst, doctors and public health experts say. Vaccines are free and widely available for people ages 12 and older. Yet millions haven’t received the shot.
In Oklahoma, for instance, the statewide vaccination rate is 45%, compared to the national mark of 53.4%. Only 11 states have lower rates than Oklahoma.
Tribal health facilities emerged as important vaccination hubs in Oklahoma and across the U.S. soon after the doses became available this spring. Months later, many are still offering shots to the general public, in addition to citizens and employees.
While many tribes have encouraged employees to become vaccinated, few have implemented workforce vaccine mandates. One exception is the Cheyenne & Arapaho Tribes in western Oklahoma. Gov. Reggie Wassana issued an executive order Aug. 12 giving employees three weeks to get their first vaccine shot or be placed on unpaid leave until they are deemed safe to return to work.
The Navajo Nation, whose reservation covers parts of Arizona, New Mexico and Utah, announced in August that employees would either need to receive the vaccine or face frequent testing.
“I have tribal clients who have instituted this testing or vaccine mandate months ago,” Pavel said. “I suspect they’re looking at the president and saying, ‘Well, it’s about time you caught up.’”
But other clients, she said, have stayed away from requirements in favor of incentives for receiving the vaccine.
For those tribes, the impact of Biden’s vaccine requirements remains unclear. For example, a tribal business that has Defense Department contracts might be subject to the federal contractor vaccine requirement. But the calculus is not clear-cut.
“Tribes are not subject to state regulatory power,” Meggesto said. “It gets murkier with respect to the federal government,” Meggesto said.
Biden has tasked the Occupational Health and Safety Administration with writing and enforcing the rules over vaccine and testing requirements among large private employers. The Supreme Court has never weighed in on whether OSHA standards apply within Indian Country, Pavel said.
OSHA regulators have an obligation to consult with tribes before publishing any rules that could impact their sovereign rights, Meggesto said.
“Tribes are sovereign governments, and it doesn’t matter what industry or what for-profit business they’re in,” he said. “It’s for the benefit of governmental revenues, and it doesn’t make it any more subject to regulation in our view.”
Some leaders of tribes may decide to challenge OSHA’s effort to enforce any new vaccine mandates, Pavel said.
Whether tribes have to require vaccines under Biden’s new plan also could hinge on existing legal compacts, which govern everything from casino operations to cigarette sales. Some compacts might say that tribes agree to abide by all federal health standards, which might be interpreted to include the new vaccine requirements, Pavel said.
In response to Biden’s plan, Cherokee Nation Principal Chief Chuck Hoskin Jr. said in a statement that the tribe is “already ahead of the curve when it comes to tribal government employee vaccination rates and mandatory COVID testing of our business employees.”
The tribe in northeastern Oklahoma is the second-largest in the U.S. and has thousands of employees throughout its government, health care and businesses operations. Hoskin said nearly 75% of government employees are vaccinated. Workers for the tribe’s business arm, Cherokee Nation Businesses, are tested twice every week for COVID-19. Cherokee leaders are weighing additional vaccine and testing measures, Hoskin said.