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Shelter-in-Place Orders and Exclusion of Non-Residents in Response to COVID-19

March 26, 2020

Overview

In an effort to protect Indian tribal members and residents of Indian reservations and slow the spread of COVID-19, several tribes have issued shelter-in-place orders.  Like the orders issued by a number of state governors, the tribal orders require residents – both tribal and non-tribal - to shelter in their homes except to provide or receive essential services, engage in essential activities, or work for essential businesses and essential governmental services.  Businesses and governmental agencies must cease all non-essential operations within reservation boundaries, and limit travel. 

As the United States Supreme Court recognized in Montana v. United States, tribal governments retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands, when that conduct threatens or has some direct effect on the health or welfare of the tribe.  Native communities are disproportionately affected by health conditions that the Centers for Disease Control and Prevention (CDC) has specifically identified as increasing the risk of serious complications from COVID-19.  Unchecked spread of COVID-19 on a reservation clearly threatens the health and welfare of the tribe, and tribal governments.

The shelter-in-place orders follow previous steps tribes have taken, including closing tribal casinos and resorts.  The Navajo Nation closed all tourism locations, tribal parks, and casinos in an effort to limit the number of outside visitors on Navajo tribal land.  The closure stopped short of closing the reservation to outsiders; however, the Navajo Nation President said in a press conference that the tribe would not be putting up roadblocks because it did not have the resources to do so. 

In Washington, the Quinault Indian Nation announced on March 23, 2020 that tribal lands were closed to visitors until further notice.  Access is restricted to residents, Quinault tribal members, tribal government employees, postal service, food service and delivery, and other pre-approved agency personnel.  Courts have long recognized that as part of their residual sovereignty, tribes retain the inherent power to exclude nonmembers from tribal lands.  A closure order is a powerful tool, but one which may require coordination with, and the cooperation of, state, local, or federal agencies.  The Quinault Reservation, for example, is traversed by state highways 101 and 109.  Although the tribe does not have the power to close state highways, the tribe is in talks with the Washington State Department of Transportation to post signs limiting access to local traffic only.  

Schwabe has created a COVID-19 Task Force to help clients navigate these uncertain times, and we are constantly updating our COVID-19 resource page. Our Indian Law group stands ready to help you.

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