Infrastructure issues, like a lack of universal access to stable internet, running water or electricity, have compounded pandemic-related impacts to Native American and tribal communities, according to legal experts and community leaders. Native American communities have faced these issues, and many others, for decades, but the COVID-19 pandemic has brought into stark relief challenges to overall community safety and the communities’ ability to keep courts running remotely, according to the Ute Mountain Ute Tribe Justice Department and legal experts.
INFRASTRUCTURE ISSUES
Troy Eid, co-chair of Greenberg Traurig’s American Indian Law Practice Group, said the lack of critical infrastructure has led to an increase in public safety concerns during the COVID-19 pandemic. Eid said “between a third and about 40% of the people who live in Navajo [Nation] do not have running water.” Many of the homes without access to running water will already have a hard time following Center for Disease Control protocols for frequent handwashing, he said.
“We also have quite a few parts of the reservation that don’t have electricity and don’t have running water, which is a whole other realm. And then we’ve got an incredible housing challenge.” Eid said the average home in Navajo has roughly six occupants and is usually less than 1,000 square feet, also making it difficult to follow social distancing guidelines. For example, a bar association staff member in Window Rock, Arizona, was exposed to COVID-19 and had to quarantine in a tent outside their home. “That’s where part of the family slept because they had an elderly grandmother living with them,” said Eid.
In addition to issues with sheltering in place guidelines, Eid said that on most of the reservations, there could be unstable access to the internet. Lack of a stable internet connection in some areas burdens remote court operations for some Native American communities like the Navajo Nation. “They’re trying to run their courts, and often they’re doing it by driving off the reservation,” Eid said. “There are just huge challenges that people outside of Indian Country, I have found, have no conception of. They don’t understand that sheltering at home, for many Navajo people and many native people, is just not a very good option.”
The fiber optic connections most urban areas have is not often present in or around reservations for the Navajo Nation, according to Eid. He said that often, the only way to get internet is to rely on many different vendors to get a connection, which may still be unstable. “There are some local communities that have a little bit of fiber but there’s no backbone to get to the internet,” Eid said. “You can imagine the service degradation.”
COURT AND JUSTICE SYSTEM IMPACTS
In addition to other systemic issues, courts and justice systems have faced strains trying to maintain remote operations.
Eid, who is also president of the Navajo Nation Bar Association, mentioned jurisdiction questions involving the Navajo Nation are possibly even more complex during the pandemic, as crossover jurisdiction is in play for a small percentage of cases, but access to both court systems and jury trials is limited.
“The Navajo Nation and the federal government have concurrent criminal jurisdiction over crimes that arise on the Navajo Indian Reservation,” he said. Eid said for some of the more major criminal offenses that have federal overlap, there is no double jeopardy, so “sometimes people can be convicted in both Navajo court and in federal court for the same underlying offense.”
The Navajo Nation Bar Association is the largest nonprofit legal services organization in the U.S. that directly serves a Native American tribe, according to Eid, with about 700 members located in Colorado, New Mexico, Arizona and Utah. Eid said the NNBA had seen at least six members die in the past six months alone from COVID-19. Several other members have died during the pandemic because the “Indian Health Service hospitals that serve reservation have essentially turned to COVID, to deal with that problem, and are not performing other kinds of operations,” Eid said.
In addition to the Navajo Nation, which encompasses 27,000 square miles in the northwestern part of the state according to Discover Navajo, Colorado is home to at least two other tribes. The Ute Mountain Ute Tribe and the Southern Ute Indian Tribe are both located in the southwest portion of Colorado. The Ute Mountain Ute Tribe has more than 2,000 members according to the Bureau of Indian Affairs website.
Priscilla Blackhawk, the court administrator for the Court of Federal Regulations in Towaoc, Colorado, said the primary issue for the court system on the Ute Mountain Ute Reservation is the technological need. “Right now, all our cases are heard by telephone,” she said, adding that the small court isn’t set up to do WebEx or Zoom hearings, so the prosecutors, defense attorneys and judges are unable to actually see the people they’re talking to.
Director of the Department of Justice for the Ute Mountain Ute Tribe, Peter Ortego, said the Tribal Council put new rules in place like checkpoints to help control COVID-19 outbreaks. “Part of the issue with the justice system is the ability of the Bureau of Indian Affairs, who is our law enforcement, to be willing to actually enforce some of the rules that the Tribe has put into place.”
Ortego said the level of services provided by the BIA is often an issue, and that the Tribe’s court and justice system are starting to falter as well in the wake of pandemic-related delays or issues with enforcement. “At this point, I think they’re doing the best they can,” he said of the BIA.
Rules the Ute Mountain Ute Tribe have recently put into place include a checkpoint, curfew, public gathering limitations and quarantine requirements. The rules also include a stipulation that law enforcement can’t detain someone on suspicion of a crime if that person might have been exposed to COVID-19. Ortego said that specific hurdle has led to other law enforcement issues. “Anecdotally, I’ve heard of people in the community sort of bragging about the fact that they’re positive and they can’t get arrested. They’re continuing to violate certain tribal laws,” he said.
Blackhawk noted the Court of Federal Regulations has experienced the same public access restrictions that other state-level courts have during the pandemic. Restricted access to the clerk’s office and the lack of ability to file for non-emergent issues has plagued the court since February 2020, when the last jury trial was held, according to Blackhawk. She said the court is currently only accepting bail payments, restraining orders and social services actions, similar to others in the state.
Blackhawk also said the impacts to some court departments have caused delays in services, noting some COVID-19 outbreaks have shut down entire departments while disinfection and cleaning efforts are made. Ortego said the Ute Mountain Ute Tribe is currently working with the Indian Health Service to get vaccinations to essential workers. “We’re vaccinating at a faster rate than we would have been if we were going through the state. However, we are also coordinating with the state — the state has certainly not abandoned the Tribe,” he said.
In terms of critical needs for the Tribe, Ortego mentioned the BIA’s ability to help enforce tribal and federal laws on the reservation is still an ongoing issue. He said the problem likely stems from the BIA’s limited abilities to hire and retain people. “I don’t know what the solution is, as I sit here right now, but I think we can all work together and find that solution,” he said.
FEDERAL SUPPORT
Christina Stanton, interim director of the American Indian Law Clinic at the University of Colorado Law School, said the overall lack of federal support is an ongoing issue plaguing Native American communities during the pandemic. “Tribes don’t tax their citizens, so they’re dependent on revenue from enterprises like casinos or other tribal businesses,” she said, “And when that revenue’s not there, as we’re seeing all across the country, how are tribes able to pay for important services? You can extend that all the way to services for tribal Public Safety and Justice needs.”
Stanton said the U.S. Supreme Court on Jan. 8 agreed to hear a case that will address some funding access issues for Alaska Natives, whom some lower courts say aren’t eligible for funding under the CARES Act. “Alaska Natives are structured differently than tribes in the lower 48, where you have the reservation system, and then in Alaska, you have the corporation system,” she said, “Under the terms of the statute, Alaska Native corporations are not considered tribal governments and are not receiving funding.”
CARES Act funding for Native American communities and tribal systems has garnered some controversy for those who were eligible recipients. Ortego pointed out that CARES Act funding came with a number of restrictions for how Native American communities were allowed to spend the funds. “One of the things we were told early on with the original CARES Act funding is you cannot build any permanent structures,” he said, “We would have loved to have expanded the clinic and make more permanent structures but we had to go with temporary structures because that’s all we were allowed to spend the funds on.”
For the Ute Mountain Ute Tribe, vaccine distribution this month pivoted courts and community leaders into a more positive direction after suffering a number of pandemic-related issues including restrictions on spending CARES Act funds.
Eid said after speaking with some of the judges in the Navajo Nation that have received the vaccine, he also has a more positive outlook going forward. “I think that there’s some brighter times that are going to be coming ahead,” he said, “and then it’s a matter of dealing with the case backlogs which are going to be huge.”
Stanton said, “tribes have been pivoting and responding to the crisis. There has been amazing tribal leadership.” She explained that while she knows they’re working on solutions that the critical outlier for these communities is more federal support in terms of funding.
“The issues with tribes receiving money under the formula like this has been talked about for decades and figuring out how to distribute money to Indian Country, in a way that properly supports citizens, is a question that needs to be answered and maybe [the pandemic] is what will spur it into more mainstream discussion.”