One of the civics lessons we’ve learned during the Covid-19 pandemic is about how fleeting sovereignty can be. As we try to survive this desperate period, at times sovereignty has been used and abused in the battle against the coronavirus.
On an international scale, we’ve seen countries close their borders to either keep in or keep out sick people. And those that are allowed in are often required to quarantine for 14 days to ensure that they’re healthy and vital. Specific regions of individual countries have been quarantined, such as Wuhan, where the virus originated. But this was nothing new for China, where travel restrictions on its citizens are a daily aspect of that sovereignty.
Can you imagine that happening in the U.S.—say, in New York, which turned out to be the hotbed of viral infection in this country? Of course not. But that didn’t stop individual U.S. governors from instituting stay-at-home orders. States’ sovereignty was often cited as an excuse for this suspension of the inalienable rights guaranteed by the U.S. Constitution.
To be sure, the Constitution limits the power of the federal government over states’ rights, so there supposedly is legal justification for governors to institute these restrictions. While the jury is still out on whether they’re actually working, the legal wrangling will probably take years to untangle.
Of course, there have been many suspensions of constitutional rights during wartime. The internment of Japanese-American citizens during World War II was one of the most egregious, but even the sainted Abraham Lincoln ran roughshod over constitutional rights during the Civil War.
Was the response to Covid-19 similar to those occurrences? Only time will tell.
Needless to add, sovereignty is the cornerstone of tribal gaming. Government-to-government relationships among tribal, state and federal governments are the bedrock principle when tribes decide what activities to offer on their reservation land. Tribes were under no obligation to close down their operations when the governors of their states ordered a lockdown. Yet they were often the first to voluntarily close their casinos, understanding that their role in the overall community is foremost. Their responsibilities to their members, employees and other stakeholders made it an easy decision.
Realistically, however, there was no choice. The states control access to tribal reservations, so any other decision would surely have forced a showdown between tribal and state authorities, which no one would have won. So the best course was to close down, with tribal sovereignty and community responsibility intact.
At the same time, during this period there were important developments related to tribal sovereignty that really had nothing to do with Covid-19.
In Massachusetts, the Mashpee Wampanoag tribe was stripped of its tribal sovereignty when the Department of the Interior decided to withdraw its approval of land into trust for a tribal reservation. The Mashpees are once again a landless tribe, as they have been for many years. In last month’s issue of GGB, attorney Judy Shapiro laid out the Mashpee struggle, and outlined why this is a dangerous precedent, not only for the Mashpees but for all of Indian Country.
For a quagmire of tribal sovereignty, you only need to look to Oklahoma. When the 20-year gaming compacts with the states’ tribes expired at the end of 2019, Governor Kevin Stitt declared that the compacts ended on December 31 and must be renegotiated. Tribes disagreed, saying the agreements automatically renewed. The result has been a continuing standoff.
In April, Stitt reached separate compact agreements with two tribes, giving them sports betting and the right to expand into territories that were not part of their reservations—a smart move by Stitt, because it broke the solid wall he had been facing against a unified tribal gaming industry. (Now the Oklahoma attorney general has ruled those new compacts null and void, because only the legislature can add new gaming options to a compact. But that doesn’t negate the governor’s purpose of dividing the tribes.) The Oklahoma Indian Gaming Association quickly suspended the tribes in question, saying the industry must speak with a united voice.
But where does this leave tribal sovereignty? If each tribe is indeed a separate nation, how can OIGA object when one government reaches an agreement with another?
As the leader of one of the rogue tribes, Otoe Missouria Chairman John R. Shotton, said, “Regardless of the opinion of the OIGA, there are not hierarchies of sovereign nations in Indian Country. I certainly hope as negotiations continue, other tribes won’t be singled out for exercising their tribal sovereignty.”
As we’ve commented many times during this ongoing crisis, we do live in interesting times.