Katherine Florey has posted “Toward Tribal Regulatory Sovereignty in the Wake of the COVID-19 Pandemic,” forthcoming in the Arizona Law Review. Here is the abstract:
The media has often highlighted the devastating toll COVID-19 has taken in many parts of Indian country – and that, to be sure, is part of the story. But there are other aspects of the picture as well. On the one hand, tribes have taken resourceful and creative measures to combat COVID-19. On the other, a troublesome doctrinal landscape has complicated their efforts to do so. The judicially crafted Montana framework severely restricts tribal civil regulatory power over nonmembers – a particular problem during the COVID-19 pandemic, when nonmembers have defied tribal curfews, camped in prohibited areas, and opened businesses on reservations despite closure orders. While Montana nominally contains a “health and welfare” exception allowing tribes to exercise power over nonmembers in emergencies, its contours are too ambiguous and fact-specific to allow tribes to act with the certainty and speed they require. The pandemic thus provides a vivid illustration of the way in which Montana hinders effective tribal governance. Further, the pandemic has occurred at a moment when the Court may be more receptive than it has been in the past to arguments favoring tribal sovereignty – and at a time when many of the concerns about tribal regulation that motivated the Court four decades ago in Montana seem increasingly distant both from current doctrine and contemporary tribal realities. As a result, it is time, at a minimum, for the Court to expand Montana’s “health and welfare” exception to resemble something closer to the powers states possess to safeguard public health.