TRIBES, VACCINES, AND COVID-19: A LOOK AT TRIBAL RESPONSES TO THE PANDEMIC.

• Author: Crepelle, Adam

Introduction 31 I. Why Tribes Were Especially Vulnerable to the COVID-19 Virus 35 II. Vaccines, Pharmaceutical Experiments, and Indians 39 III. Tribal Vaccine Distribution 44 IV. Tribal and Medical Sovereignty: Beyond Vaccines 53 A. Mask Mandates and Social Distancing Guidelines 53 B. Highway COVID-19 Checkpoints 57 C. Casino and Other Tribal Enterprise Closures 59 D. COVID-19 Treatments 62 Conclusion 64 INTRODUCTION

The COVID-19 virus has taken the lives of over half a million United States citizens. (1) Although the COVID-19 virus affected people of all walks of life, Indian country (2) was hit particularly hard. (3) In fact, the sparsely populated Navajo Nation had a higher rate of COVID-19 cases than any state in the United States. (4) Indians (5) were much more likely to contract the COVID-19 virus than white United States citizens and died from the virus at nearly triple the rate. (6) Nevertheless, this death rate is likely an underestimate because "Indians" are often misidentified or excluded from data. (7)

Despite countless obstacles, tribes have taken definitive actions to protect their citizens. Tribes implemented mask mandates, curfews, and other safety measures at the first sight of the virus. (8) However, tribes' greatest accomplishment was their COVID-19 vaccine rollout as tribes vaccinated their citizens faster than states. (9) Tribes have been so successful vaccinating their own citizens that they have disseminated the COVID-19 vaccine to non-Indians, (10) and even players in the National Basketball Association turned to tribes for COVID-19 vaccines. (11) While tribal institutions have increasingly proven themselves more effective than their state and federal counterparts, (12) tribes' success with vaccines came as a surprise.

Due to tribes' unique legal status, (13) Indians have rights to healthcare through treaties and the federal-tribal trust relationship. (14) The Indian Health Services (IHS) is a manifestation of this relationship. (15) The IHS was established in 1955. (16) Today, there are 109 federally operated IHS facilities, while tribes themselves use federal funds to operate over 600 healthcare facilities. (17) There are also 41 urban Indian organizations that contract with the IHS to provide healthcare to Indians who reside away from tribal service areas. (18) The IHS provides a variety of healthcare services to Indians, including primary and emergency care. (19) However, the IHS is infamously underfunded. (20) This has contributed to massive health disparities between Indians and the general population. (21) These disparities have made Indians extremely susceptible to the COVID-19 virus. Notwithstanding the historic troubles, the IHS rose to the moment and helped tribes effectively distribute vaccines.

Tribes' experience disseminating the COVID-19 vaccine can provide lessons for future state and municipal inoculation campaigns. Tribes' experience with the COVID-19 virus also raises numerous questions about tribal sovereignty and medicine. (22) This Essay examines tribal COVID-19 vaccine campaigns and explores how tribal sovereignty relates to other pandemic response measures, such as business shutdowns and mask mandates.

The remainder of this Essay proceeds as follows. Part I explains why tribes were particularly susceptible to the COVID-19 virus. Part II provides background information on Indians' historical relationship with western medicine and pharmaceutical research. Part III examines the effectiveness of the tribal COVID-19 vaccine distribution strategies. Part IV explores how tribal sovereignty impacts public health measures other than vaccine distribution.

1. WHY TRIBES WERE ESPECIALLY VULNERABLE TO THE COVID-19 VIRUS

   Populations with preexisting conditions were particularly vulnerable to the COVID-19 virus, (23) and Indians have among the worst health statistics in the United States. Indeed, Indians suffer from virtually every health malady at higher rates than the general population. (24) For example, Indians contract tuberculosis at seven times the rate of the white population. (25) Respiratory ailments, like tuberculosis, are a particularly potent combination with the COVID-19 virus. (26) Indians also have diabetes at triple the rate of the U.S. population, (27) and diabetes severely amplifies the health hazard presented by the COVID-19 virus. (28)

   Poor health statistics are closely related to material poverty. (29) Indians have the highest poverty rate in the United States, (30) and Indians who live on reservations are even poorer. (31) Poverty results in 40% of reservation housing being deemed substandard compared to 6% outside of Indian country; likewise, approximately one-third of Indian country homes are overcrowded. (32) Moreover, 48% of reservation housing lack access to safe water. (33) Overcrowded houses with inadequate water supplies are prime places for communicable diseases like COVID-19 to spread. (34)

   Once someone contracts the COVID-19 virus, accessing medical care can be difficult on a reservation. Indians who reside on reservations usually must make long drives to see healthcare providers. (35) Indian country's roads are consistently ranked among the United States' worst. (36) As Indian country's roads are often unpaved, inclement weather can render ground transportation impossible. (37) Reservation houses also often lack physical addresses, so emergency responders have difficulty identifying their destination. (38) Even if addresses exist, telecommunications infrastructure is lacking in Indian country. (39) Hence, a Global Positioning System will be useless. (40) Reservation housing has the lowest rate of internet access in the United States, so telemedicine is not an option for many reservation residents either. (41)

   Inadequate roads, healthcare, and numerous other obstacles to healthy communities are a direct result of the federal government failing to uphold its trust and treaty obligations to tribes. (42) Despite having trust and treaty obligations to tribes, the United States persistently underfunds tribal governments. (43) Additionally, federal law undermines tribal economic development efforts. (44) For example, federal law prevents Indians from mortgaging their trust land without federal approval. (45) The inability to get a mortgage contributes to reservation housing shortages, thereby producing overcrowded homes. The inability to obtain a mortgage on reservation lands makes accessing capital in Indian country exceedingly difficult; hence, Indian country has virtually no private sector. (46) This helps explain Indian country's perennially high unemployment rate, and without job opportunities, poverty and poverty-related health maladies will persist.

2. VACCINES, PHARMACEUTICAL EXPERIMENTS, AND INDIANS

   Tribes have an over 200-year history with vaccines. (47) In 1797, Chief Little Turtle of the Miami Tribe became the first Indian to receive a federally sanctioned vaccine. (48) The vaccine was for smallpox, (49) which caused incalculable harm to tribes. (50) During the Jefferson Administration, vaccines were used as part of the U.S. tribal diplomacy efforts. (51) Accordingly, smallpox vaccines were a diplomatic tool wielded by Lewis and Clark on their expedition to the Pacific. (52) To further tribal diplomatic efforts, Congress passed the Indian Vaccination Act in 1832. (53) Congress appropriated additional funds for Indian vaccination efforts in 1839. (54)

   Although some Indians were reluctant to get vaccinated, Indians usually accepted vaccines. (55) Indians witnessed their tribes and others being ravaged by smallpox; thus, Indians viewed vaccines as an important tool to protect their people. (56) In fact, indigenous healers incorporated western vaccine techniques into their traditional medical practices. (57) The United States used its Indian vaccination efforts to demonstrate the nation's high-minded Indian policy to the world. (58) However, the U.S. vaccine campaign was not always successful or well-intentioned. (59)

   Vaccines did not always stop the smallpox spread for a variety of reasons. One reason is the vaccination techniques of the 1800s were relatively weak and ineffective by contemporary standards. (60) Moreover, the vaccine involved infecting persons with a moderate case of smallpox, and the vaccinated person could transmit smallpox prior to overcoming the diseased. (61) U.S. agents also based tribal vaccination distribution on strategic concerns; that is, vaccines went to tribes the United States deemed economically important or allies of the United States. (62) Throughout the years, providing Indian healthcare has remained a federal responsibility, though how this duty is fulfilled has changed over time. (63) Not until 1955 did the IHS assume its current form within the Department of Health and Human Services. (64)

   The following year, Congress passed the Indian Relocation Act of 1956. (65) The impetus for this legislation was to eliminate tribes and assimilate Indians into the United States mainstream. (66) Accordingly, the Indian Relocation Act coerced Indians to leave their rural reservations for major urban areas. (67) Indians were promised jobs and assistance until they got on their feet; however, the United States failed to deliver on this promise which caused extreme hardship for numerous Indian families. (68) Leaders in urban Indian communities sought ways to improve the healthcare urban Indians received. (69) These efforts resulted in Congress funding the first program for urban Indians in 1966.[TM] Today, the 41 Urban Indian Health Organizations provide healthcare services to urban Indians through IHS funding. (71) Although the IHS funds Urban Indian Health Organizations, the IHS has been chronically underfunded and thus, performed subpar. (72)

   Similarly, the IHS has been involved in several scandals. Indians have experienced medical mistreatment outside of the IHS too. (73) Mishandling of the Havasupai...