The Oklahoman

Tribes navigate new COVID vaccine rules

Mandates may infringe on sovereign rights

- Molly Young Molly Young covers Indigenous affairs for the USA Today Network’s Sunbelt Region of Colorado, Oklahoma, New Mexico and Texas. Reach her at or 405-347-3534.

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 staffers 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 Affairs.

“The answer may depend on a tribe’s specific 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 effective 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 official, 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 fit. There isn’t a one-size-fits-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 offering 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 first 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-profit business they’re in,” he said. “It’s for the benefit 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 effort 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.

 ?? CHRIS LANDSBERGE­R/THE OKLAHOMAN ?? Shannon Livsey receives a COVID-19 test from registered nurse Dasha Johnson on Aug. 4 during an employee testing event at the Absentee Shawnee Tribe’s Little Axe Health Center in Norman. The clinic requires frequent testing among employees who are not vaccinated.
CHRIS LANDSBERGE­R/THE OKLAHOMAN Shannon Livsey receives a COVID-19 test from registered nurse Dasha Johnson on Aug. 4 during an employee testing event at the Absentee Shawnee Tribe’s Little Axe Health Center in Norman. The clinic requires frequent testing among employees who are not vaccinated.

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