Aila Hoss has posted “Securing Tribal Consultation to Support Tribal Health Sovereignty,” forthcoming in the Northeastern University Law Review, on SSRN.

Here is the abstract:

Effective intergovernmental coordination is essential to promoting health and safety. Yet, the current political climate has seen discord between Tribes, states, and the federal government on issues ranging from public health to environmental protection, among countless others. The COVID-19 pandemic has magnified this discord. Many states have challenged Tribal authority to access data, implement quarantine and isolation measures, and establish checkpoints and mask mandates. The federal government has delayed access to COVID-19 data, established burdensome and inconsistent policies for the use of federal response funds, and failed to meet its obligations to provide health care in many American Indian and Alaska Native communities.

As sovereign nations, Tribes have authority and responsibility over their land and people. Modern relationships between Tribes, states, and the federal government are based on the colonization and genocide, legalized by the United States under federal Indian law. Federal Indian law both recognizes Tribal sovereignty but also carves out instances in which a Tribe’s criminal or civil jurisdiction can be infringed. It has allowed federal agencies, Congress, and federal courts to exercise overwhelming authority to determine the scope of Tribal and Indigenous rights. And yet, Native representation in these same branches have been abysmal.

One method for ensuring Tribal and Native perspectives in these decision-making processes has been through Tribal consultation. Consultation is a formal, government-to-government process that requires governments to consult with Tribes before taking actions that would impact them.

Tribal consultation is essential for effective Indian health policy. This article argues for a more robust mechanism for Tribal consultation for health policy issues. Section I briefly describes Tribal governments and their relationship to the federal government. Section II summarizes existing requirements for Tribal consultation under federal and state law. Section III describes the limitations of existing Tribal consultation practices. Finally, section IV describes the impact of inadequate consultation on American Indian and Alaska Native health and offers recommendations for a Tribal consultation framework that fully supports American Indian and Alaska Native health.