A Cut Bank economic development agency has filed a lawsuit claiming that a state organization has “no jurisdiction” on tribal lands to enforce a Montana law that prohibits COVID-19 vaccine warrants.
The Glacier County Regional Port Authority is suing the Montana Office of Human Rights and Department of Labor and Industry Commissioner Laurie Esau. The case will go to trial in the US District Court in Great Falls and Chief Judge Brian Morris will oversee it.
HB 702, passed by Republican lawmakers and signed by Gov. Greg Gianforte in May 2021, aims to prevent workplaces and customers from being discriminated against based on their vaccination status.
According to the lawsuit, when HB 702 was passed, the Blackfeet Tribal Business Council had implemented Tribal Ordinance 121, which required mandatory COVID-19 vaccinations for people attending in-person meetings.
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The Tribal Ordinance states that its purpose is “to protect and promote the safety of the Tribal Workforce.”
The lawsuit centers on JR Myers, a non-Native man who allegedly attempted to attend an in-person meeting at Browning but was not vaccinated against COVID-19.
The lawsuit says Myers filed a complaint against the Port Authority with the Montana Human Rights Office. The bureau determined that the Port Authority – which provides small business loans, grants and other forms of assistance – engaged in unlawful discrimination when it demanded that in-person meeting attendees present proof of vaccination.
The Port Authority is asking for a judgment to declare the state office incompetent over tribal lands. Tribes are sovereign nations, meaning they have the right to govern their territory and internal affairs.
Plaintiff also seeks to enjoin the defendants from enforcing HB 702 against the Port Authority, award the Port Authority attorneys’ fees, and award the Port Authority such other remedies as the court deems just.
Several lawsuits have challenged HB 702, but this case stands out in that it challenges the Montana Office of Human Rights’ ability to enforce the law. Earlier cases like Netzer v. Montana Law Firm and Montana Medical Association v. Knudsen sought to invalidate the law itself.
Blackfoot Nation and COVID
While tribes in Montana often enforced stricter safety protocols than the state, Native Americans were disproportionately hospitalized and killed by COVID-19.
The Blackfeet Nation sacrificed vital tourist dollars in 2020 when it closed the gates on the east side of Glacier National Park to protect residents of the reservation from the virus. The tribe has also implemented mask mandates, curfews, remote learning and other initiatives to curb the spread. In July, the tribe reported that 67 community members had died of COVID-19 since the pandemic began.
COVID-19 was the leading cause of death among Native Americans in Montana in 2020, while it was the third leading cause of death among all Montana residents, according to a Department of Health and Human Services. report.
Between March and October 2020, Native Americans in Montana accounted for 19% of COVID-19 cases and 32% of COVID-19 deaths statewide. Indigenous peoples make up approximately 6.7% of Montana’s population.
From August 31 — more than a year after the vaccines were distributed — Native Americans accounted for 8% of COVID-19 cases and 11% of COVID deaths in Montana.
Native Americans face persistent disparities in health and health care, which according to a recent report by the Indian Health Service, “are the result of centuries of structural discrimination, forced relocation, reduced economic opportunity and chronic underfunding of health care”.
The report also cited barriers to care, historical trauma, discrimination and poverty as other factors contributing to health disparities.
Although Native Americans have access to the Indian Health Service, the agency has long been criticized for its chronic underfunding. The same report indicated that the agency’s previous funding met approximately 48.6% of the health care needs of the population it serves.