There is a controversy in north and south Dakota where the Standing Rock Sioux tribe is prioritizing native speakers for the distribution of COVID-19 vaccines. The tribe insists that they want to protect those who can preserve their language. However, this is to impose a language criterion on the categories established by the CDC for health professionals, the elderly, and the most vulnerable. The clear meaning is that prioritized people, as per CDC guidelines, could become infected and die because they want to protect those who are considered greater “assets” for the tribe.
Mike Faith, tribal chairman of the Sioux Reservation in Standing Rock, was open about the tribe’s priority given their language skills: “It’s something we need to pass on to our loved ones, our history, our culture, and our language. We don’t have it in black and white, we tell stories. That’s why it’s so important. Margaret Gates, Director of Tribal Health, added that Standing Rock’s native speakers “are the most important asset to our tribe and people because of language.”
The number of these controversies is small. Only 300 people living on the Standing Rock Sioux Reservation are fluent in Dakota and Lakota, their native languages.
However, the tribe is using the federal government-provided vaccine for free to protect citizens who are considered more valuable “assets”. The question is whether it is appropriate, or even legal, for states or tribes to use language criteria to give certain citizens precedence over others.
Federal and state laws apply to Indian reservations despite their status as self-regulating states. In the Employment Division, Oregon Department of Human Resources v Smith (1990), the Supreme Court denied a motion to exempt tribes from the federal prohibition of the lawsuit against peyote from general application of its criminal laws. In Lyng v Northwest Indian Cemetery Protective Association (1988), the court declined to prohibit federal construction of a road through land in a national forest that was sacred to Native Americans.
Conversely, in Morton v Mancari (1974), the Court upheld recruitment preferences for Indians within the Bureau of Indian Affairs, as allowed under the Due Process clause of the Fifth Amendment. There is also Talton v. Mayes (1896) where the Court refused to apply protection of individual rights to a tribal trial.
Apart from the application of such individual rights to tribal decisions, there remains the unassailable right of the federal government to dictate the distribution criteria for tribes. Fortunately for the tribe, the “recommendations” on priority don’t seem like a set of rules. On December 1, 2020, the Advisory Committee on Immunization Practices (ACIP) recommended that health workers and residents of long-term care facilities be offered a COVID-19 vaccination first (phase 1a).
The federal government should be clear about the prioritization of “high quality” citizens. Imagine if a state like New York made such a decision based on the cultural contribution of certain races or groups. Members of the high-risk tribe reasonably expected that they would be given the same status as others receiving the federally approved vaccine.
Because of this, this could be an interesting injunction lawsuit. This seems unlikely at the moment, but it could make some of these constitutional and quasi-contractual issues clearer.