WASHINGTON – As the U.S. Supreme Court weighs the Biden administration’s COVID-19 vaccine mandate, tribal leaders are making sure the administration knows that they have deep concerns about the lack of federal-tribal consultation on the directive.

No matter how the high court ends up ruling – whether it strikes down the requirement, or leaves it in place for employers of 100 or more people – tribal leaders want the administration to learn from this instance that it should deal with tribes as the politically-unique entities they are, in accordance with federal and tribal law. Because of tribal sovereignty, as well as legal trust and treaty responsibilities from the federal government to tribes, tribal leaders do not believe that the Biden administration should treat tribes as ordinary employers. And they, therefore, should be exempt from any federal vaccine mandate, according to some tribes.

If the Supremes do uphold the edict, which, based on oral arguments from Jan. 7, seems unlikely, legal observers expect that tribes will press the administration for an exemption and/or further technical support to lighten the load.

Several tribal leaders have told top Biden administration officials that the mandate would put an undue burden on tribal governments – especially ones that are already stretched thin by many aspects of the ongoing pandemic – to force tribal employees to either get a COVID-19 vaccine or get fired. Record-keeping and other compliance issues are particular concerns, as are tribal economic woes if many employees are forced to be laid off.

“We support vaccinations, but this may be a hindrance on tribal businesses,” Terri Parton, president for the Wichita and Affiliated Tribes, said during a recent virtual call with the U.S. Department of Labor on this topic.

Robert McGhee, vice chairman of the Poarch Band of Creek Indians, also blasted the Biden administration on the matter during its Nov. 17 White House Tribal Nations Summit. He received no response to his concerns during the meeting.

“We all support the goal…to defeat the pandemic; however, enforcing [the mandate] on tribal government enterprises violates tribal sovereignty and ignores tribal laws and local decision making,” McGhee said. 

He argued that tribally-owned businesses are not like other private-sector businesses, and thus should not be treated the same in terms of a vaccine mandate.

Many tribal leaders want Biden staffers to know that they are not opposed to COVID-19 vaccines, per se; rather, they are opposed to demands from the federal government that they view as threatening their tribal sovereignty. 

Indeed, it has been a point of pride for many of the 574 federally-recognized tribes that they rapidly vaccinated many of their tribal citizens, in some cases more efficiently than states and local governments. 

Last year, for instance, Stacy Bohlen, the director of the National Indian Health Board, was able to get a vaccine at her hometown tribe, the Sault Ste. Marie Tribe of Chippewa Indians, more expediently than she could in the Washington, D.C. metro area where she works. She made the 850-mile trek to the tribe’s health facilities, because the tribe was doing a strong job at getting vaccinations out quickly, she noted on social media.

Some tribes have been reported in federal health statistics to be among the top vaccinators in the nation.

Still, it irked many tribal leaders when the White House recently announced that a tribal leader briefing would be held following the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) Nov. 5 proclamation that the vaccine mandate applies to all entities, including tribal businesses, that employ 100 or more people.

Tribal leaders, including McGhee, have said that the action was something that OSHA was wrong to do sans consultation with tribes and that the announcement should have come after appropriate consultation. 

OSHA’s rationale for the lack of consultation was that there was just no time for it, according to the agency’s Nov. 5 justification in the Federal Register, which reads as follows: “Executive Order 13175 Section 5 of E.O. 13175, on Consultation and Coordination with Indian Tribal Governments, requires agencies to consult with tribal officials early in the process of developing regulations that: (1) Have tribal implications, that impose substantial direct compliance costs on Indian governments, and that are not required by statute; or (2) have tribal implications and preempt tribal law. 65 FR 67249, 67250 (Nov. 6, 2000). E.O. 13175 requires that such consultation occur to the extent practicable. Given the expedited nature of issuing the ETS [vaccine mandate], it was not practicable for OSHA to consult and incorporate non-federal input prior to promulgation of the standard.” 

“OSHA commits to meaningful consultation with tribal representatives after publication of the ETS [vaccine mandate] and during the comment period before finalizing any permanent standard,” the notice continued. “Such consultation will be consistent with the Administrative Procedure Act.”

Some tribal leaders thought the Federal Register’s language was especially patriarchal – a problem tribes have long experienced with federal executive actions, but one that they hoped would express itself less egregiously during what many view as a tribally-friendly Biden administration.

“You make time for something as big as this,” one tribal leader, who asked to remain anonymous due to ongoing discussions with the White House on this matter, told Indigenous Wire. “You don’t have President Biden saying he is doing the best ever at consultation with tribes, then slip it into the Federal Register that you didn’t have time to consult with us on including us in such a sweeping action.”

The tribal leader said that they agree with vaccine science, they are vaccinated themselves – as are a majority of their tribe – but they still do not believe that gives OSHA the permission to put a mandate in place on tribes without consultation and real consideration of tribal sovereignty. 

“It is wrong. It leaves the administration looking like they don’t really care about tribal consultation and informed consent, no matter what President Biden is saying,” the tribal leader said. 

If the Supreme Court does uphold the mandate, the official said their tribe would ask for an exemption, given legal protections the tribe believes it would have in this instance.

OSHA has in the past ignored and argued against tribal claims to special status. In 1998, for instance, the agency exercised its belief that it could conduct inspections on tribal lands due to provisions within the Occupational Safety and Health Act of 1970 (OSH Act).

“We have determined that OSHA, in most instances, may conduct inspections at tribal enterprises,” John Miles, then a director with OSHA’s compliance programs division, wrote in a letter to the U.S. Congress.

“The OSH Act charges OSHA with the responsibility to assure safe and healthful working conditions for working men and women,” Miles continued. “OSHA has always considered the OSH Act to be a statute of general applicability. Therefore, the OSH Act reaches workplaces located on tribal lands and operated by tribal employers.” 

Miles said that OSHA’s position “is consistent with the Supreme Court's decision in FPC v. Tuscarora Indian Nation, 362 U.S. 99, 116 (1960), which declares that ‘a general statute in terms applying to all persons includes Indians and their property interests.’”

Miles also noted that the courts have “established some limited exceptions to the general applicability of the OSH Act to tribal enterprises.” 

“The OSH Act would apply to a tribal enterprise unless its application touched upon purely intramural matters (such as tribal membership, domestic relations and inheritance) or violated a treaty or unless the legislative history of the Federal statute or surrounding circumstances in its enactment indicated that the statute was not to apply,” Miles wrote. “In light of President Clinton's April 29, 1994 Memorandum, ‘Government-to-Government Relations With Native American Tribal Governments,’ we strive to assure that the agency's actions do not interfere in governmental functions which are integral to tribal sovereignty.”

In the current vaccine mandate situation, tribal leaders say that OSHA and the Department of Labor have not done a particularly good job at even pretending that they are performing appropriate consultation.

In response to tribal leader expressions of concern on that issue during a virtual call on Nov. 5, Labor Department officials said that they were planning to hold a consultation on Dec. 5. But that consultation never happened, and when questioned about why, Labor officials could not give Indigenous Wire a precise answer; ongoing litigation against the mandate was an obvious factor. A tribal consultation on the mandate is now expected to occur by the end of this month.

Toward the end of the Nov. 5 session, Labor Department Solicitor Seema Nanda indicated that the mandate would not apply to tribal governments – giving police, fire and schools as examples – but said it would apply to tribal enterprises, such as casinos. 

A Labor spokesman would not say if Nanda’s position will stand if the Supreme Court upholds the mandate, only noting that “OSHA has suspended activities related to the implementation and enforcement of the ETS [vaccine mandate] pending future developments in the litigation.”  

Labor officials have also said that the vaccination information tribal entities will be required to maintain must be treated as medical records and accorded all the protections of medical records, which will be a burden to some tribes. They have indicated that technical assistance would be available for tribal entities to assist in understanding these requirements. 

Tribal leaders who attended the Nov. 5 call told Indigenous Wire they were frustrated about spending the bulk of the call going through the particulars of OSHA’s mandate that Nanda admitted does not apply to them, or at least to their governmental activities.

They are hopeful that future consultations between the Department of Labor and tribes will vastly improve.