In early July, the Supreme Court ruled that the eastern part of Oklahoma remains Indian Country for the purposes of federal criminal law. Oklahoma argued that decades of federal and state incursions and violations of an 1833 treaty with the Muscogee (Creek) Nation effectively dissolved the tribe’s reservation. Five justices disagreed. The reservation remains unless and until Congress decides it doesn’t.
Justice Gorsuch opens McGirt v. Oklahoma loftily: “On the far end of the Trail of Tears was a promise.” But the decision upholds a vastly diminished promise, and it details a much longer trail of promises broken by the federal and state governments. Headlines heralding this victory as “stunning,” “startling,” and “unusual” painfully reveal how far expectations have fallen for Native American justice.
Across the page from this “historic” legal win, another, much more familiar Native American story is being retold in public health. Where once Native American populations faced novel diseases brought by Europeans – smallpox, measles, typhoid – now they confront COVID-19. And in so doing, they must once again overcome added challenges stemming from centuries of neglect, discrimination, and exploitation by White-dominated society. Will the U.S. government step up, or will its response again fall a day late and many dollars short?
COVID has hit urban and rural Native Americans especially hard
Much of the reporting on COVID’s heavy impact on Native American communities has focused on so-called Indian Country. Certainly, conditions in many rural and very low-income reservation communities make access to care harder and may lead to higher transmission rates.
The Navajo reservation, which spans four states including Arizona and New Mexico, experienced extremely high infection and mortality rates early on. Tribal leaders responded with measures that helped contain the spread even as Arizona’s statewide infection rates skyrocketed in June. But this is not just a story of rural poverty.
Some of the hardest hit reservation communities, like the Mississippi Band of Choctaw Indians (MBCI), derive tribal income and employment from large casinos. The MBCI, comprising some 11,000 members, reported over 1000 cases and 76 deaths from COVID as of August 4. The current death total for the U.S. is 49 deaths per 100,000 inhabitants, but this tribe’s mortality translates to 690 deaths per 100,000.
Reports that focus on living and working conditions on rural reservations only paint part of the picture of COVID-19 and Native Americans. Over half of Native Americans live in cities, and many reservations border on urban centers. For example, well over 110,000 Native Americans live in Arizona’s Maricopa County, distributed across urban Phoenix as well as on nearby reservations. Maricopa County breaks out its data to include Native Americans, and the results are shocking.
Though the county data includes race/ethnicity on only 55% of COVID cases, available data suggests that 4.35 percent of Native American county residents have tested positive, nearly four times the rate for White residents and over 2.5 times the rate for Blacks.
Uneven data reporting hinders tribal response
Population-specific data identifies hot spots, which should, in turn, help direct COVID response resources. Unfortunately, many state and local governments do not include Native Americans in their demographic breakdowns of COVID cases, rendering invisible the much of the urban share of the Native American population. CDC’s federal database and data from the Indian Health Services are also incomplete due to spotty reporting. Tribal attempts to coordinate with local governments also faced delays and roadblocks that hindered tribal public health response.
Nonetheless, tribal COVID response has often been strong and very effective. Unfortunately recovery from the lingering economic and human effects will take years. For example, the MBCI has closed its tribal casino, which employs over 1200 tribal members, since March due to the pandemic.
Two large July fairs that draw thousands of tourists were also cancelled. The economic fallout has been particularly harsh because tribal government revenues often depend on taxes from these businesses in lieu of property taxes. (Tribal land is in federal trust, so not taxable.) Such stories of economic devastation in Native American communities have recurred across the country.
The Federal government remains part of the problem
The U.S. government response to tribal needs has fallen short, at best. Native American epidemiologists still cannot access CDC data they need to help with their response, which the CDC has blocked even as it gives access to state governments. Chronically underfunded Indian Health Services and Urban Indian Health Centers report over $22 billion in budgetary needs, but have received little from Congress.
Congress did approve $8 billion dollars in tribal relief in the CARES Act in late March and gave the Treasury Department 30 days to distribute the funds. Numerous roadblocks and delays followed. The Treasury department asked tribes for updated population data, then simply ignored tribal responses. Instead, it used flawed and outdated records that shortchanged a number of tribes, leading to numerous, ongoing lawsuits. The first CARES payments did not go out until May 5. It was mid-June before the rest (minus $500 million still tied up in courts) reached tribes.
Similarly, the Small Business Administration’s flawed legal interpretation led it to exclude smaller tribal casinos from accessing $349 billion in CARES Act emergency federal stabilization funds for businesses. By the time Congress members pointed out the errors and SBA had amended its guidance, the first tranche of Paycheck Protection Program funds was gone.
Will Congress step up, or will Native American have to go it alone again?
These ongoing struggles reflect a long history of ignoring, marginalizing, or outright trampling tribal interests. Native Americans have had to overcome these abuses just to survive. Perhaps the McGirt v. Oklahoma decision can spark a shift toward better recognition of tribal rights, but only time will tell. In the short term, Congress can bolster tribal COVID response by directing more resources to the underfunded Indian Health Services and to tribal economic recovery efforts.
Congress and the CDC should also work to improve the fidelity, specificity, and transparency of race/ethnicity data reporting, including for Native Americans who live off reservation. Public health agencies should facilitate, not block, secure data sharing to help identify COVID problem areas before they blossom into crises. These concrete steps would save lives. They would also signal that Congress might finally be stepping up to rectify some of its long broken promises to Native American communities.
