Blackfeet Nation Challenges Ban & Four Tribes Join Lawsuit to Protect Antiquities Law

Blackfeet Nation Challenges Ban on Montana Vaccine Mandates

By Katheryn Houghton. Kaiser Health News.

Law professors and attorneys say the challenge appears to be the first time that pandemic-related laws have been challenged in court over an alleged infringement on tribal sovereignty

J.R. Myers’ frustration grew as he read the email: To attend a local economic development council meeting in Browning – the largest community on the Blackfeet Indian Reservation in northwestern Montana – he had to bring proof he was vaccinated against covid-19.

It was November 2021. Six months earlier, Montana Gov. Greg Gianforte, a Republican, had signed a law prohibiting businesses and governments from discriminating against people who aren’t vaccinated against covid or other diseases. To Myers, the requirement to attend the meeting of the Glacier County Regional Port Authority – formed by local governments in Glacier County’s tribal and nontribal area – appeared to violate that law.

Myers, who isn’t a tribal citizen, lives in Cut Bank, just east of the reservation. He said he didn’t attend the meeting at Blackfeet Community College in Browning because he didn’t want to reveal his vaccination status – adding that the Montana law protects him from doing so. Instead, he lodged a complaint with the state.

“When this local government agency started to embrace this concept of vaccination passports, I immediately reacted because I didn’t want them to be setting a precedent. I wanted them to follow the laws of Montana,” he said.

Montana’s vaccination discrimination law is one of the most controversial pandemic-related measures passed by Republican state lawmakers in 2021. Its rollout has created confusion within schools, health care facilities, and counties. And it has been challenged as unconstitutional by health care facilities, doctors, and nurses.

Myers’ complaint exposed a new conflict: whether the state can enforce the law on the Blackfeet reservation over the tribe’s right to administer its own rules to protect the health of its people as a sovereign nation within the borders of the United States.

State officials began reviewing Myers’ complaint to determine whether the port authority’s decision to check attendees’ vaccination status violated state law, according to court documents. In response, the port authority filed a federal lawsuit, saying the state did not have jurisdiction to enforce the law on tribal land. Its attorneys cited a Blackfeet tribal ordinance that they said established vaccine rules on the reservation.

This month, the Blackfeet tribe joined the lawsuit as a plaintiff, saying it should be allowed to defend itself against “an unlawful attempt” to enforce state law within the reservation’s boundaries and to protect its rights to self-governance that were agreed upon in an 1855 treaty with the U.S., according to court documents. The tribe asked the court to block the state from acting on Myers’ complaint and from any other attempt to enforce the law on the reservation, according to court documents filed Nov. 15.

Law professors and attorneys said this appears to be the first time that pandemic-related laws have been challenged in court over an alleged infringement on tribal sovereignty.

“This case is really about the state of Montana attempting to assert its jurisdiction within the Blackfeet Nation’s territory,” said Mark Carter, a staff attorney with the Native American Rights Fund, a nonprofit that represents the tribe. “What happens on the reservation directly affects the health and safety of Blackfeet citizens and all those within the reservation.”

Other states pushed back against pandemic restrictions: At least 25 states beyond Montana permanently whittled down public health powers in 2021.

Montana’s vaccine mandate ban is the subject of a separate lawsuit, led by the Montana Medical Association, in which the plaintiffs argue that the law is unconstitutional and prevents health care facilities from providing a safe environment for patients. A decision by U.S. District Judge Donald Molloy was pending as of mid-November.

A third lawsuit, filed by a Sidney law firm in state court, is also seeking to strike down the law. A Richland County judge previously declined to block the state from enforcing the law while the case is pending, and on Nov. 16, the state Supreme Court backed the judge’s decision.

The U.S. Constitution recognizes sovereign tribes as nations with the power to self-govern. Shannon O’Loughlin, the CEO and a lawyer for the Association on American Indian Affairs, said that according to long-standing federal law, tribal sovereignty takes precedence over state law on matters related to protecting the health and welfare of tribal citizens.

Kekek Stark, a law professor and co-director of the Indian Law Program and Margery Hunter Brown Indian Law Clinic at the University of Montana, said that one critical question in jurisdictional disputes is whether a state tries to enforce rules on “fee land” – which can refer to a property within a reservation’s boundaries owned by non-Indians – or tries to regulate a business incorporated under state law. He cited as another key factor whether a tribal nation has a law in place that differs from state law, adding that the tribal law would take precedence.

“The absence of regulation, in some regards, allows the other sovereign – whether it’s the state or the feds – to begin to occupy the space,” Stark said. “It’s not absolute that they could still regulate; it just becomes an easier argument when the tribe hasn’t done so.”

Conflicting rules from tribes and states aren’t new. When Montana lifted its mask mandate and took steps to keep local public health officials from imposing restrictive covid measures, Blackfeet Nation leaders maintained or strengthened their rules. Covid-related deaths among Native Americans far outstripped state and national averages, in part because of structural racism that has led to health inequities among Indigenous people for generations.

Starting in 2020, at the height of the pandemic, tribal leaders shut down the eastern entrance to Glacier National Park – prioritizing the opportunity to slow the virus’s spread over the economic engine of tourism. Throughout the pandemic, they also enforced stay-at-home orders with fines, invoked mask mandates based on case numbers, and created a $5,000 penalty for anyone who ignored quarantine orders. The prevention measures worked. The reservation saw a steady decline in covid cases, and the federal Centers for Disease Control and Prevention pointed to the Blackfeet Nation as an example to follow.

Attorneys for the port authority contend that when its meetings returned to tribal land last year, a Blackfeet tribal ordinance was in place that included “mandatory vaccination with exceptions,” according to court documents. Carter, with the Native American Rights Fund, said the ordinance allowed some entities to invoke vaccine mandates. At the time of the meeting, Blackfeet Community College required anyone on campus to show proof they had been vaccinated against covid, according to its 2021-22 school year covid policies.

Blackfeet tribal officials and port authority attorney Terryl Matt did not respond to requests for an interview.

Enforcement of the law falls to the Montana Department of Labor and Industry’s Human Rights Bureau. Jessica Nelson, a spokesperson for the department, said the agency doesn’t comment on pending litigation.

In court documents, the state argued the case isn’t about the validity of a tribal ordinance or the Blackfeet’s right to enforce that ordinance if it exists. Instead, lawyers for the state wrote, it’s about whether nontribal organizations like the port authority can avoid state scrutiny on tribal land.

Attorneys for the state contend Montana officials want to ensure non-Indians aren’t discriminated against “merely because they step foot onto tribal land,” according to court filings.

The Blackfeet tribe has authority to regulate tribal and nontribal citizens alike on its land under the 1855 treaty, attorneys for the tribe argued in court documents.

The state also questioned whether the port authority held the meeting on tribal land specifically to skirt state laws. In an affidavit filed in October, Brenda Schilling, the port authority’s executive director, said that the meeting was held in Browning because the organization was returning to pre-pandemic routines and that it’s an issue of fairness to people who live on the reservation. She said participants could tune in remotely.

Myers, who filed the original complaint against the port authority, said he feels as though people in the community view him as an opponent of tribal sovereignty. But he said that wasn’t his goal, adding he wanted to hold the port authority accountable.

“Which laws are they following? Which jurisdiction? They can’t serve two masters,” he said, referring to state and tribal laws.

KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism about health issues. Together with Policy Analysis and Polling, KHN is one of the three major operating programs at KFF (Kaiser Family Foundation). KFF is an endowed nonprofit organization providing information on health issues to the nation.

This article was first published in KHN and ICT.

Conservation Groups Intervene to Protect Utah Monuments, Antiquities Act

Four Tribes intervened last week in lawsuits attacking Antiquities Act

SALT LAKE CITY, UT – Conservation groups filed a motion to intervene in two lawsuits challenging President Biden’s restoration of Bears Ears and Grand Staircase-Escalante National Monuments today. The suits, led by the state of Utah, also attack the Antiquities Act itself as unlawful. Nearly five years ago, former President Trump controversially – and without lawful authority – shrunk the boundaries of Bears Ears by 85% and Grand Staircase-Escalante by 47%, stripping protection for world-renowned dinosaur fossils, remarkable geologic features, and important Native American cultural sites.

The Hopi Tribe, Navajo Nation, Ute Mountain Ute Tribe, and the Pueblo of Zuni also moved to intervene in the suits last week.

“These lawsuits seek to destroy the Antiquities Act with a flawed argument that presidents may only designate small monuments,” said Heidi McIntosh, Earthjustice managing attorney representing the conservation groups. “The Supreme Court has recognized for one hundred years that the Antiquities Act gives the president broad authority to designate national monuments commensurate in size to the ‘objects’ that need protection. Lower courts have consistently followed suit. Without the Antiquities Act, we would not have some of our most beloved national parks, including Grand Canyon, Grand Teton, Olympic, Zion, and Acadia. We will fight alongside our partners and clients to ensure the Antiquities Act is preserved for future generations to experience our most beloved and historic places.”

In 1920, the Supreme Court upheld President Teddy Roosevelt’s use of the Antiquities Act to protect 800,000 acres in Arizona when he declared the Grand Canyon a national monument. Presidents since have routinely designated monuments of a million acres or more. Courts have consistently found that culturally and scientifically rich landscapes, even large ones, are eligible for protection under the Act. In their motion to intervene, the conservation groups signaled their opposition to Utah’s erroneous claim that a president can designate only small monuments centered on specific sites.

“The State of Utah tried essentially this exact same lawsuit in 2004 against Grand Staircase-Escalante National Monument, represented by none other than William Perry Pendley, and the judge handed them a decisive defeat,” said Erik Molvar, executive director of Western Watersheds Project. “Bears Ears and Grand Staircase-Escalante are so packed with Indigenous cultural sites, fossil deposits, and scientifically important ecological features that it is beyond question that the president has the authority to protect these lands under the Antiquities Act for the benefit of all Americans.”

“Utahns and Americans overwhelmingly support national monument protections for Bears Ears and Grand Staircase-Escalante, but that hasn’t stopped Utah’s attorney general and governor from trying to destroy both of these monuments and the law that makes it possible for presidents to create national monuments,” said Tim Peterson, Cultural Landscapes director for the Grand Canyon Trust. “State leaders claim to value natural heritage and love the outdoors, but this lawsuit says otherwise.”

“The remarkable Grand Staircase-Escalante and Bears Ears national monuments are the crown jewels of America’s public lands,” said Stephen Bloch, legal director for the Southern Utah Wilderness Alliance. “It’s terribly disappointing that, rather than embrace these monuments as the very best our state has to offer the world, Utah Governor Cox has attacked them and hopes to see the monuments undone. We’re going to work to stop that from happening. Without the protections that come with being preserved as national monuments, the sacred sites, fossils, and ecosystems found within are at risk of being lost forever to reckless off-road vehicle use, wildcat mining and drilling, and rampant tourism.”

Conservation groups, along with Tribes who urged the Obama administration to establish the Bears Ears National Monument, previously challenged President Trump’s 2017 dismantling of the monuments. That case remains pending in the District of Columbia.

“This radical effort to dismantle the Antiquities Act and revoke protections for the Bears Ears and Grand Staircase-Escalante National Monuments defies the overwhelming public support for protecting these cherished lands, contradicts more than a century of settled law, and ignores the immense scientific and cultural values throughout these landscapes,” said Jamie Williams, president of The Wilderness Society. “We look forward to working with Tribal governments and our partners to ensure these grand national monuments remain protected and cherished for generations to come.”

“Bears Ears and Grand Staircase-Escalante are national treasures,” said Sharon Buccino, senior attorney with the Natural Resources Defense Council. “They protect irreplaceable cultural sites, scientific resources, and natural areas that are key to our survival as the climate changes. President Biden needed to protect them and had the authority to do so.”

“These efforts are blatant attempts to undermine the Antiquities Act and those who have fought for nearly 120 years to defend this critical conservation law and all it safeguards,” said Theresa Pierno, president and CEO for National Parks Conservation Association. “National parks like Acadia and the Grand Canyon were protected because of this vital law. Bears Ears and Grand Staircase-Escalante National Monuments are no different. They are sacred, living landscapes for many Indigenous Tribes and hold extraordinary archaeological and cultural resources that tell the stories of our shared history and heritage. Millions of people have spoken out in support of protecting these treasured places, and this last-ditch effort to disregard those voices will not prevail.”

Bears Ears National Monument is home to ancient cliff dwellings, over 100,000 Native American cultural sites, innumerable historic landmarks, and iconic wildlife such as bears, bighorn sheep, and mountain lions. Tribes continue to visit the lands to hold ceremonies and connect with their ancestors. The monument designation included a historic plan for co-management of this unique landscape by federal agencies and the five Tribes with sacred cultural interests in the lands.

Grand Staircase-Escalante is often described as a “dinosaur Shangri-la,” as it is home to dinosaur fossils not found anywhere else in the world. It was established as a national monument in 1996 and in the two decades since it was protected, paleontologists have unearthed fossils from 21 previously undiscovered dinosaur species.

“Utah leaders remain shortsighted. Our state is facing extraordinary challenges regarding climate and growth, and communities bear the burden,” said Carly Ferro, Sierra Club Utah Chapter Director. “State leaders’ most recent attempt to undermine public lands seeks to dismantle unparalleled landscapes that drive incredible economic value for Utah while nurturing critical cultural and ecological resources. We have and will continue to defend against the state’s efforts to disparage the Antiquities Act state-side and federally. Bears Ears and Grand Staircase - Escalamte National Monuments will persevere. We look forward to continuing collaborations to protect these monuments and continue to bring opportunities to ensure a healthy future for everyone here in Utah.”

“Bears Ears and Grand Staircase-Escalante National Monuments must stay fully intact to preserve the extensive cultural, scientific, and natural features they hold,” said Sara Husby, executive director for Great Old Broads for Wilderness. “These monuments exemplify the intended use of the Antiquities Act to protect our country’s rich heritage. The Act is a critical conservation tool, and the attempts by Utah officials to weaken it must be stopped.”

“At root, Utah believes that it, rather than the federal government, should be managing Bears Ears, Grand Staircase-Escalante, and all other public lands in the state,” said Chris Krupp of WildEarth Guardians. “Its lawsuit is intended to chip away at the fundamental principle that all Americans get to determine how public lands are managed. If Utah were to manage these places, profit-driven resource exploitation would take precedence over conservation and protection.”

“It’s beyond disappointing that Utah leaders want to gut one of the most important and popular conservation laws ever passed by Congress,” said Randi Spivak, director of the Center for Biological Diversity’s public lands program. “Two-thirds of Utahn’s strongly support creating new national monuments, parks and wildlife refuges and 60% agree protecting Bears Ears is good for the state. We’re fighting this reckless lawsuit because the law is clear. A monument should be as large as it needs to be to protect whatever needs protection.”

First published in EarthJustice.