There is a controversy developing in North and South Dakota where The Standing Rock Sioux tribe is prioritizing speakers of its native languages for its COVID-19 vaccine distribution. The tribe insists that it wants to protect those who can preserve its language. However, that is the imposition of a language criterion over those categories set out by the CDC for health workers, the elderly and most at risk individuals. The clear import is that prioritized individuals under the CDC guidelines could become infected and die because of the desire to protect those viewed as greater “assets” to the tribe.
Standing Rock Sioux Reservation Tribal Chairman Mike Faith was open about the tribe’s priority given those with the language capability: “It’s something we have to pass on to our loved ones, our history, our culture our language. We don’t have it in black and white, we tell stories. That’s why it’s so important.” Tribal Health Director Margaret Gates added that Standing Rock’s native speakers are the “most important asset to our tribe and people because of the language.”
The numbers involved in this controversy are small. Only 300 people living on the Standing Rock Sioux Reservation are fluent in the native Dakota and Lakota languages.
However, the tribe is using the vaccine supplied by the federal government for free to protect those citizens deemed more valuable “assets.” The question is whether it is appropriate or even legal for states or tribes to use a language criteria to prioritize certain citizens over others.
Federal and state laws do apply on Indian reservations despite their status as self-regulating states. In Employment Division, Department of Human Resources of Oregon v. Smith (1990), the Supreme Court rejected the claim of exemption of tribes from the federal criminal prohibition on the sue of peyote from the general application of its criminal laws. In Lyng v. Northwest Indian Cemetery Protective Association (1988), the Court refused to bar the federal construction of a road through a site in a national forest that was sacred to Native Americans.
Conversely, in Morton v. Mancari (1974), the Court upheld hiring preferences given to 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 declined to apply individual rights protections to a tribal proceeding.
Putting aside 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 do not appear to be hard and fast rules. On Dec. 1, 2020, Advisory Committee on Immunization Practices (ACIP) recommended that health care personnel and long-term care facility residents be offered COVID-19 vaccination first (Phase 1a).
The federal government should be clear on issues of prioritizing “high value” citizens. Imagine if a state like New York made such a decision based on the cultural contribution of certain races or groups. The high risk members of the tribe expected reasonably that they would be afforded the same status of others receiving the federally approved vaccine.
That is why this could present an interesting lawsuit for an injunction. That seems unlikely at this point but it could bring greater clarity to some of these constitutional and quasi-contractual issues.