Fletcher on Pandemics and the Making of a Tribal State

My draft paper, “Pandemics in Indian Country: The Making of the Tribal State,” part of a symposium on John Fabian Witt’s American Contagions book hosted by the St. Thomas Law Journal, is available on SSRN.

The abstract:

This Essay is inspired by the fascinating narrative told by John Fabian Witt theorizing how epidemics make states and how states can also make epidemics. The two stories centered in Peshawbestown, Michigan of the 1881 smallpox outbreak and the 2020-2021 COVID-19 pandemic seems to play into that story. The state (acting through the local and federal government) made the 1881 outbreak fatal, while the epidemic (acting through the tribal and federal government) made the state (in this case, the tribe) in 2020-2021. The story here seems to be one of sovereignty. In the smallpox era, the tribes exercised almost no sovereignty. Now they are practically self-governing; the incredible success of the Grand Traverse Band is a ringing endorsement. The tribe is acting like a capable and responsive government. But I argue there is more going on here. Sovereignty – whether liberal or authoritarian, in Witt’s words – is the first step in the analysis, but not the last. Culture is the second step.
This Essay intends to gently disrupt Professor Witt’s theory by superimposing Anishinaabe political theory on American Contagions. The very notion of sovereignty is foreign to Anishinaabe. Western political theory insists on the power of a sovereign entity to enforce a social contract or else society will collapse. Anishinaabe political theory does not. The difference matters.

Govind Persad on Allocating Medicine Fairly in an Unfair Pandemic

Govind Persad has posted “Allocating Medicine Fairly in an Unfair Pandemic,” forthcoming in the University of Illinois Law Review, on SSRN. Here is the abstract:

America’s COVID-19 pandemic has both devastated and disparately harmed minority communities. In this Article, I focus on the pressing question of how the allocation of scarce treatments for COVID-19 and similar public health threats should respond to these racial disparities. Many policymakers and popular commentators have recognized that the inevitable initial scarcity of vaccines presents questions about racial disparity. Therapeutics like monoclonal antibodies raise similar questions, as do emergency interventions such as ventilators and ICU beds. Some have proposed that members of racial groups who have been especially hard-hit by the pandemic should receive priority for scarce treatments. Others have worried that this prioritization misidentifies racial disparities as reflecting biological differences rather than structural racism, or that it will generate mistrust among groups who have previously been harmed by medical research. Still others complain that such prioritization would be fundamentally unjust.

In Part II, I provide a brief overview of current and proposed COVID-19 treatments and identify documented or likely scarcities and disparities in access. In Part III, I argue that randomly allocating scarce medical interventions, as some propose, will not effectively address disparities: it both permits unnecessary deaths and concentrates those deaths among people who are more exposed to infection. In Part IV, I explain why using individual-level racial classifications in allocation is precluded by current Supreme Court precedent. Addressing disparities will require focusing on factors other than race, or potentially considering race at an aggregate rather than individual level. I also argue that policies prioritizing members of Native American tribes can succeed legally even where policies based on race would not. In Part V, I examine two complementary strategies to narrow racial disparities. One would prioritize individuals who live in disadvantaged geographic areas or work in hard-hit occupations, potentially alongside race-sensitive aggregate metrics like neighborhood segregation. These approaches, like the policies school districts adopted after the Supreme Court rejected individualized racial classifications in education, would narrow disparities without classifying individuals by race. The other strategy would address the starkly disparate racial impact of deaths early in life by limiting the use of policies that explicitly deprioritize the prevention of early deaths, and by considering policies that prioritize their prevention.

Cherokee Nation Prevails Against Insurance Company over Pandemic-Forced Business Shutdown

Here are the materials in Cherokee Nation v. Lexington Ins. Co. (Cherokee County Dist. Ct.):

2020-4-13 Petition

2020-08-11 Cherokee first MPSJ

2020-09-14 Arch Opposition Brief – OK MPSJ

2020-09-14 Aspen resp to MPSJ

2020-09-14 Evanston Supp Resp to MPSJ

2020-09-14 HALLMARK CHEROKEE – Hallmark Resp to MPSJ

2020-09-14 INSURERS Opp Cherokee’s MPSJ

2020-09-14 Landmark – Cherokee – Supp Opposition Brief – OK MSJ

2020-09-14 XL’s Opposition to Cherokee’s MPSJ [20-0914]

2020-11-20 Notice of Supp Authortiy (Western District)

2020-12-11 – Cherokee Reply to Arch- MSJ

2020-12-11 – Cherokee Reply to Aspen – MPSJ

2020-12-11 – Cherokee Reply to Evanston – MPSJ

2020-12-11 – Cherokee Reply to Hallmark – MPSJ

2020-12-11 – Cherokee Reply to Landmark – MPSJ

2020-12-11 – Cherokee Reply to Liberty Mutual – MPSJ

2020-12-11 – Cherokee Reply to XL Insurance America – MPSJ

2020-12-11 Cherokee Reply to Insurers MPSJ

2020-12-17 Cherokee – Liberty Mutual, Landmark, Arch Motion for Leave to file SurRely

2020-12-17 Insurers’ Ntc of Supplemental Authority

2021-01-06 Arch Sur-Reply to MPSJ

2021-01-06 Landmark Sur-Reply to MPSJ

2021-01-06 Liberty Mutual Sur-Replyto MPSJ

2021-01-14 Order – Granting Cherokee’s MPSJ