Aila Hoss has posted “A Framework for Tribal Public Health Law” on SSRN. Here is the abstract:
Law plays an integral role in advancing public health. Public health advancements in areas such as vaccine-preventable diseases, tobacco control, and motor vehicle safety have been driven by legal interventions, such as vaccination requirements for school attendance, smoke-free laws, and seat belt laws. The field of public health law continues to expand in the depth and breadth of the study of law as a tool in advancing public health. However, much of this research has focused on the state and local governments and does not contemplate the cultural, legal, and practical realities of Tribes and American Indian and Alaska Native communities.
The federal government recognizes 573 Tribes within the boundaries of the United States and maintains a government-to-government relationship with these Tribes. Unlike state and local governments, Tribes are sovereign nations and have the inherent authority to “make their own laws and be ruled by them.” This unique governing structure and relationship with the United States merits its own investigation and research in terms of public health law. Additionally, evidence has shown that American Indian and Alaska Native communities are disproportionately burdened by a variety of health outcomes including diabetes, unintentional injuries such as motor vehicle injuries, and chronic liver disease, which further supports the value of developing a framework in which to understand Tribal public health law through a Tribal lens, rather than state and local public health authorities.
This article offers a framework for public health law as applied to Tribes, whose history, culture, legal structure, and population health outcomes differ greatly from other jurisdictions. Additionally, the complexities of both federal Indian law and emerging public health crises establish a need to evaluate these issues in a systematic way. Part I of this article provides background on public health law, highlighting the insufficiency of existing scholarship in Tribal public health. Part II proposes a framework for understanding and researching Tribal public health law based on Tribal sovereignty, federal Indian law, Tribal law, and an analysis of structural violence. Finally, Part III concludes with a case study to demonstrate the need for establishing a separate framework for Tribal public health law and how this framework can support thoughtful and rigorous research in this area.