Indigenous Law & Governance

Abbasi, Muhammad Hassan and Maya David, 'Pandemic, Law, and Indigenous Languages in Pakistan' (2021) 11(1) IARS' International Research Journal 10-16
Abstract: Pakistan is a multilingual state with 74 languages (Siddiqui, 2019), with Urdu being its national language while English is its official language (Article 251 of the Constitution of the Islamic Republic of Pakistan). However, the linguistic diversity, as per the law, has not been given proper status in Pakistan (Rahman, 2002). In the wake of Covid-19 pandemic, the role of medical health professionals, local police officers, media persons and educationists to create an awareness about the precautionary measures to fight Covid-19 among the indigenous communities in different regions of Pakistan is important. However, there is no practice prescribed in the law, to disseminate awareness in the local languages. Moreover, as most of the lexical items regarding the pandemic have been borrowed, the shift to local languages is more than challenging. In urban areas, indigenous communities are aware of the precautions to be taken during this pandemic as they use the mainstream languages (Ali, 2017 & Abbasi, 2019.) However, in the rural and northern areas of Pakistan this is not so prevalent. Some language activists and concerned members of the community in different parts of the state took this opportunity to educate the masses and started an awareness campaign about coronavirus pandemic in local languages (posters in local languages and short video messages on social media and YouTube). Yet, linguists and community members have not been able to work with many indigenous languages, which Rahman (2004) lists in his study, and these speech communities urgently need the required information in their respective heritage languages. Such small steps by community members and NGOs in providing necessary information in local languages suggest that proper education in the mother tongue can protect communities in times like this. The government has to protect endangered and indigenous languages by an effective law-making process that actively encourages the use of local languages and helps provide information in their respective languages in such situations as this pandemic.

Charters, Claire, 'The Relevance of Te Tiriti o Waitangi in the COVID-19 Era' (2020) 9(4) MAI Journal: A New Zealand Journal of Indigenous Scholarship 17-19
Abstract: In this situation report I highlight how Te Tiriti o Waitangi is relevant to state and Maori regulation related to the COVID-19 pandemic, suggesting also that it was somewhat ignored by Aotearoa New Zealand's state institutions during the country's initial response. Focusing on the te reo text of Te Tiriti as the constitutionally and legally primary text of the Treaty of Waitangi, I argue, first, that Te Tiriti requires joint Maori and state regulation over the territories and peoples of Aotearoa New Zealand, including with respect to the COVID-19 pandemic. Second, Te Tiriti requires state government to regulate equitably and, third, it requires state government not to interfere unreasonably with taonga Maori and our culture. The government needs to do more in its COVID-19 regulatory response to comply with Te Tiriti, and therefore to act constitutionally and with legitimacy.

Craft, Aimee, Deborah McGregor and Jeffery Hewitt, 'COVID-19 and First Nations' Responses' in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 49
Jurisdiction: Canada
Abstract: This chapter considers the federal government's fettering of jurisdiction through inaction in the areas of clean water and housing. We consider a small sample of First Nations' responses, taken on the basis of their assertions of jurisdiction and responses to the particular needs and circumstances of their communities. We conclude that First Nations are best positioned to make policy and law in response to COVID-19, and that the federal government can and must work with First Nations communities on resourcing their plans for wellness and emergency preparedness in relation to the pandemic, in accordance with a sui generis application of the constitutional principle of subsidiarity in conjunction with other constitutional obligations such as the fiduciary duty of the Crown and its duty to act honourably. This chapter is contextualized by the theme of self-determination in Indigenous health, s. 35 of the Constitution Act, and the United Nations Declaration on the Rights of Indigenous Peoples.

Crepelle, Adam and Ilia Murtazashvili, 'COVID-19, Indian Reservations, and Self-Determination' (George Mason University, Mercatus Center Research Paper Series, Mercatus COVID-19 Response Policy Brief, 21 July 2020)
Abstract: COVID-19 is the most recent example of the vulnerability of American Indian reservations to pandemic disease. The Navajo Nation's COVID-19 infection rate is higher than that of any US state--even New York. The economic and health situation on reservations exacerbates the challenge of responding to the current pandemic. A central policy challenge is to alleviate the continued burden imposed on American Indian tribes by a uniquely complex federal legal structure. The Coronavirus Aid, Relief, and Economic Security (CARES) Act provides only temporary measures to increase tribal funding. Reducing long-run vulnerability to pandemic disease requires an affirmation of tribal sovereignty along with institution building that enables the tribes to respond to crises. Recognizing tribal authority on tribal lands will enable tribes to effectively respond to reservation health problems; moreover, recognizing tribal sovereignty will enable tribes to rebuild their long-hobbled economies.

Dale, Amy, 'Protecting the Most Vulnerable from COVID-19' (2020) 66 LSJ: Law Society of NSW Journal 21
Jurisdiction: Australia
Abstract: From the implications of panic buying in remote areas to the policing of social distancing restrictions and lack of robust health resources, legal experts warn the impact of COVID-19 may be especially harsh on Indigenous communities.

Etty, Thijs et al, 'Indigenous Rights amidst Global Turmoil' (2020) 9(3) Transnational Environmental Law 385
Abstract: The year 2020 cannot end quickly enough.We enter the final quarter of a year in which cataclysmic fires erupted across Australia and the United States (US) west coast, devastating floods swept across Sudan, a pandemic ravages the lives of millions while bringing the global economy to a virtual standstill, and acts of profound injustice have acted as a startling reminder of the systemic racism that pervades American society as well as others around the world. Environmental concerns are deeply interwoven with each of these storylines. In many respects 2020 represents a glimpse into the future that climate science haswarned us about for decades. The risk of intensified fires and floods has long been a major theme of such warnings. Epidemiologists have cautioned that infectious diseases may spread faster and further in a warmer world. Also, social unrest, with its invariably racist inflections, will no doubt result from climate migration, from strains on global food supply, from water insecurity, and from the multitude of other ways in which environmental change and climate change expose and exacerbate existing social and ecological vulnerabilities.

Fletcher, Matthew LM, 'Indian Lives Matter: Pandemics and Inherent Tribal Powers' (2020) 73(June) Stanford Law Review Online 38-47
Abstract: America's reaction to the COVID-19 pandemic of 2020 is a microcosm of how Americans see the nation. It is a story of rugged individualism versus community needs. Many Americans insist on freedom to do as they please, rigorously pushing back on government. But in an environment where small numbers of individuals can easily transmit a deadly infection to others, creating the exponential increase in infections, rugged individualism is a terrible threat. Pandemics, luckily for humans, do not seem to occur all that frequently, but when they do occur, they can dramatically alter human history.Indian people know all too well the impact of pandemics on human populations, having barely survived smallpox outbreaks and other diseases transmitted during the generations of early contact between themselves and Europeans. Indian people also suffered disproportionately from the last pandemic to hit the United States about a century ago. Some things have changed for the better for Indian people, namely tribal self-governance, but many things are not much better, including the public health situation of many Indian people. Modern tribal governments navigate a tricky legal and political environment. While tribal governments have power to govern their own citizens, nonmembers are everywhere in Indian country, and the courts are skeptical of tribal authority over nonmembers. For example, after the Navajo Nation announced a 57-hour curfew for the weekend of April 10-13, 2020 (Easter weekend for many), the sheriff's offices of Cibola and McKinley counties sent letters to the tribe insisting that the tribe refrain from citing nonmembers during the curfew, further insisting that nonmembers are governed more 'fully' by the Governor of the State of New Mexico. Further, the fact that it is the county sheriff's offices - and not counsel for the nonmembers - sending the letters is a deeply consequential signal to the tribal government. Of course, allowing nonmembers freedom to flout the tribe's curfew defeats the purpose of the curfew. During a pandemic, the limitations on powers of tribal government could lead to tragedy. This short essay is designed to lay down the argument favoring tribal regulatory powers over nonmembers in Indian country during a pandemic. It should be an easy argument, but federal Indian law makes it more complicated than it should be.

Florey, Katherine, 'Toward Tribal Regulatory Sovereignty in the Wake of the COVID-19 Pandemic' (2020) 63(2) Arizona Law Review (forthcoming)
Abstract: The media has often highlighted the devastating toll COVID-19 has taken in many parts of Indian country - and that, to be sure, is part of the story. But there are other aspects of the picture as well. On the one hand, tribes have taken resourceful and creative measures to combat COVID-19. On the other, a troublesome doctrinal landscape has complicated their efforts to do so. The judicially crafted Montana framework severely restricts tribal civil regulatory power over nonmembers - a particular problem during the COVID-19 pandemic, when nonmembers have defied tribal curfews, camped in prohibited areas, and opened businesses on reservations despite closure orders. While Montana nominally contains a 'health and welfare' exception allowing tribes to exercise power over nonmembers in emergencies, its contours are too ambiguous and fact-specific to allow tribes to act with the certainty and speed they require. The pandemic thus provides a vivid illustration of the way in which Montana hinders effective tribal governance. Further, the pandemic has occurred at a moment when the Court may be more receptive than it has been in the past to arguments favoring tribal sovereignty - and at a time when many of the concerns about tribal regulation that motivated the Court four decades ago in Montana seem increasingly distant both from current doctrine and contemporary tribal realities. As a result, it is time, at a minimum, for the Court to expand Montana's 'health and welfare' exception to resemble something closer to the powers states possess to safeguard public health.

Hoss, Aila and Heather Tanana, 'Upholding Tribal Sovereignty and Promoting Tribal Public Health Capacity During the COVID-19 Pandemic' in Scott Burris et al (eds), Assessing Legal Responses to COVID-19 (Public Health Law Watch, 2020) 77-82
Abstract: Tribes are sovereign nations with authorities and responsibilities over their land and people. This inherent sovereign authority includes the right to promote and protect the health and welfare of their communities. The COVID-19 pandemic has brought national attention to the health inequities experienced by American Indian and Alaska Native communities. The sovereign legal authority for Tribes to respond to this pandemic has received less attention. This Chapter describes some, but not all, of the urgent legal issues impacting Tribal response to the COVID-19 pandemic. It describes and identifies gaps in federal Indian health policies and highlights how Tribes have exercised their sovereignty to respond and promote resilience in the wake of COVID-19. It also provides examples of intergovernmental challenges. It highlights how ignorance of or animosity to federal Indian law has led non-Tribal governments to infringe on Tribal sovereign rights during the COVID-19 pandemic. It ends by providing a list of recommendations on how law can be better used to support Tribal responses as the pandemic unfolds.

Kukutai, Tahu et al, 'New Normal: Same Inequities or Engaged Te Tiriti Partnership?' (2020) 9(4) MAI Journal: A New Zealand Journal of Indigenous Scholarship 12-16

Abstract: As the government shifts its focus from COVID-19 elimination to addressing the longer-term social and economic repercussions of the pandemic, it is critical that Maori are able to partner and lead in decision-making. In the new normal of a post-COVID Aotearoa, the transformational vision of just relationships set out by Matike Mai is more relevant than ever. Responses that do not locate Maori at their centre will maintain, or deepen, the inequities that existed prior to the pandemic. To meet the challenges ahead, we need to draw on Aotearoa's dual knowledge systems and the richness of matauranga Maori. Rather than a centralised, top-down approach, we need diverse sources of expertise, experience and leadership, with communities as the locus of decision-making, orientation and direction of recovery.

Larson, Rhett, 'Water Law and the Response to COVID-19' (2020) 45(7-8) Water International 716-721
Extract: The COVID-19 crisis has been particularly devastating for the people of the Navajo Nation, a sovereign indigenous nation of around 175,000 people that has had over 4000 cases, more per 100,000 than New York City. The Navajo Nation spans more than 27,000 square miles, including parts of Arizona, Utah and New Mexico, in the south-western United States. The Navajo people have lived in this arid region for generations. More recently they have confronted water scarcity associated with more frequent and intense droughts on the Colorado River, as well as water quality challenges due to decades of uranium mining in the region. These water challenges are exacerbated for a population often living in small, remote communities, often lacking the economies of scale that drive the development of large centralized water treatment and distribution systems. An estimated 30% of Navajo Nation residents lack access to tapped and treated water. These challenges combined to make the Navajo uniquely vulnerable to the spread of COVID-19 because of the lack of adequate water quantity and quality for proper hygiene.

Leonard, Kelsey, 'Indigenous Water (in)Justice and the COVID-19 Pandemic' in Petra Rethman (ed), COVID-19: Urgent Reflections (Institute on Globalization and the Human Condition, Globalization Working Paper 20/1, 2020) 9-12
Introduction: The water crises facing many Indigenous Peoples, nations, and communities across Turtle Island (North America) and globally are well documented (Lam et al. 2017; Robison et al. 2018; Marshall 2017). In Canada there are more than 60 long-term drinking water advisories impacting First Nations reserves (Indigenous Services Canada 2020). In the United States a 2019 national water security study by Dig Deep and the U.S. Water Alliance found that 'race is the strongest predictor of water and sanitation access'. The study further found that 'Native American households are 19 times more likely than white households to lack indoor plumbing' (Dig Deep 2019, p. 12). Indigenous water insecurity - inadequate access to sufficient quantity and quality of water to meet daily individual and collective needs of Indigenous Peoples - is a product of systemic water colonialism and a grave water injustice (Robison et al. 2018).

Levesque, Anne and Sophie Theriault, 'Systemic Discrimination in Government Services and Programs and Its Impact on First Nations Peoples During the COVID-19 Pandemic' in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 381
Jurisdiction: Canada
Abstract: Historic and contemporary forms of colonialism predispose First Nations peoples to higher risk for COVID-19. This chapter argues that the health disparities faced by First Nations communities are directly attributable to the underfunding and discrimination in public services, especially on reserves. The first part of the chapter canvasses the inequities in government services and programs that impede the capacity of First Nations communities to effectively prevent and manage public health crises, such as the COVID-19 pandemic, in accordance with their own priorities, circumstances, and needs. The second part proposes Caring Society v Canada, a precedent-setting decision of the Canadian Human Rights Tribunal (CHRT), as establishing the legal standard for Canada when designing and funding its response to the COVID-19 pandemic for First Nations communities. We argue that if the Government of Canada does not immediately and comprehensively address the systemic inequities in its services and programs to First Nations peoples, as required under the Canadian Human Rights Act, measures aimed at managing the COVID-19 pandemic and potential future health crises will inevitably fail to produce equitable outcomes in these communities.

Markham, Francis and Diane Smith, 'Indigenous Australians and the COVID 19 Crisis: Perspectives on Public Policy' (ANU Centre for Aboriginal Economic Policy Research, CAEPR Topical Issue No 1/2020, 2020)
Abstract: First Nations people are being, and will continue to be, affected by this crisis in ways that differ from the effects on other Australians. The pandemic risks exacerbating deep-seated health, social and economic inequities in Australian society, especially the long-standing inequalities between First Nations people and other Australians. The pandemic has also made plain the shortcomings of the relationships between Indigenous people and Australian governments, revealing a governance gap that is difficult to ignore. But despite these inimical conditions, the disruption of the COVID-19 crisis is opening up new opportunities for public policy change. And many First Nation organisations and communities are leading the way. Unprecedented new government expenditure creates space for policy innovation, as the boundaries of what is possible become blurred. The pandemic is a time of stark risks, but it is also a time when informed policy bravery could create new foundations for a better future. Contributions to this Topical Issue focus on employment impacts, social security reforms, Indigenous governance, violence against women, the Indigenous health workforce, school closures, energy security in remote communities, and a proposal for an Indigenous reconstruction agency.

Morales Antoniazzi, Mariela and Gabriela Cristina Braga Navarro, 'Tackling Inequality in Times of Pandemics: Right to Water in the Inter-American Court of Human Rights' (Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No 2020-30, 2020)
Abstract: This paper presents the decision of the Inter-American Court of Human Rights in the Lhaka Honhat v. Argentina case, focusing on the Court's recognition of water as an autonomous right. The main argument is that the case is a milestone in the jurisprudence of the Court since for the first time it recognizes the direct justiciability of the right to water, offering a holistic approach to tackle inequalities and to provide means for overcoming marginalization. In the current context of COVID-19 pandemic, the decision becomes a paramount reference for judicial protection of vulnerable groups, proposing legal arguments for the guarantee of access to safe water. It is argued that the ruling has the potential to transcend the individual case and to enhance the transformative mandate of the IACtHR. The method used is bibliographic review, mostly based upon primary sources (judicial decisions). It relates to two theoretical backgrounds, the theory on intersectional discrimination and the ius constitutionale commune framework. The Court's decision and its victim-centred approach is discussed in light of the situation of poverty and multiplied vulnerability that indigenous peoples in Latin America face. Besides, it is contextualized with precedents of indirect recognition of social rights to indigenous peoples through the affirmation of the right to a dignified life. A comparative perspective gives insights into the decision's potential to transcend the individual case and, more specifically, to enforce the protection of indigenous rights during the COVID-19 pandemic. Finally, within the framework of a ius constitutionale commune, the Court is attributed a transformative mandate through which it can combat discrimination and promote structural change. The paper concludes stressing the importance of the recognition of intersectional discrimination in order to ensure access to safe water to indigenous peoples and other vulnerable groups. It also highlights the significance of the recognition of direct justiciability of social rights in order to tackle inequalities in times of pandemic.

Morrissey, Philip, 'COVID-19 Pandemic: The Circus Is Over, for the Moment' (2020) 17(4) Journal of Bioethical Inquiry 591-593
Abstract: This critical essay responds to the COVID-19 pandemic and subsequent lockdown in Victoria from the perspective of a retired Aboriginal academic and reflects on personal responsibility, Indigenous history, and resilience.

Ola, Kunle, 'The Role of Traditional Knowledge in the COVID-19 Battle' (SSRN Scholarly Paper ID 3649053, 26 June 2020)
Abstract: This article addresses the role of traditional medicine in the race to find a cure for the corona virus (COVID-19). It situates traditional medicine within the traditional knowledge and Intellectual Property discussion. The paper discusses the increased gravitation towards using traditional medicine but also identifies the existence of scepticism towards its use. The paper calls on the African and indigenous communities who make up a large portion of the traditional medicine community to play their role in the fight against COVID-19. The battle is real, the coronavirus ground is an intersecting one and the solution is out there, but we do not know for sure where the solution would come from and what quarters it will come from. It could be traditional medicine, medical science, or a curious combination of both. This paper advocates for collaboration, it advocates that we join hands to fight the virus. It advocates inclusion rather than exclusion.

Saint-Girons, Marie et al, 'Equity Concerns in the Context of COVID-19: A Focus on First Nations, Inuit, and Metis Communities in Canada' (Canadian Child Welfare Research Portal, Research Brief, July 2020)
Introduction: COVID-19 and the quarantine measures put in place to stop its spread have had a devastating and far-reaching impact around the world. Since it was first detected, the virus has infected and killed people from all backgrounds, prompting some to refer to it as 'the great equalizer'. Yet, similar to previous pandemics, the effects of this disease and related containment strategies magnify inequities, exerting a disproportionate impact on disadvantaged groups such as Indigenous peoples, visible minorities, and people of lower socioeconomic status. Inequity predisposes people to the pre-existing conditions that are co-morbid with the worst cases of COVID-19 and prevents the timeliness and quality of pandemic response. While this research brief addresses the broad inequities exacerbated by COVID-19, it focuses more specifically on their potential impact on First Nations, Metis and Inuit peoples and communities in Canada , recognizing that current realities are shaped by racial discrimination and the ongoing legacy of colonialism. In this sheet we explore health inequities underlying COVID-19's spread, the uneven socioeconomic burden it places on communities, and the need to adequately prepare and respond using a social justice lens.

Sulkowski, Adam J, 'Indigenous Shared Governance, International Law, and Preserving Rainforest in a Pandemic' (SSRN Scholarly Paper ID 3684021, 31 August 2020)
Abstract: In a rarely visited corner of the Amazon biome is an entity whose predicament is both unique and relatable, and whose fate is tied to that of local Indigenous peoples, as well as the climate of the world: the Iwokrama International Centre for Rainforest Conservation and Development in Guyana. This case answers calls for more transdisciplinary efforts in scholarship and teaching, and is intended to both serve as a basis for conversations with students as well as a springboard for further research.

Tanana, Heather, 'Learning from the Past and the Pandemic to Address Mental Health in Tribal Communities' (University of Utah College of Law Research Paper No 381, 2 September 2020)
Abstract: When COVID-19 hit, it devastated Tribal communities. Based on past federal policies, American Indians and Alaska Natives suffer various health and socioeconomic disparities that make them not only more vulnerable to contracting COVID-19, but also more susceptible to negative outcomes once infected. Much attention has focused on COVID-19 infection rates and related deaths in Indian country. However, the pandemic's reach has gone beyond physical impacts on the body. COVID-19 has also affected the mental health of Tribal members and their access to mental health services. This Article dives into the effects of the coronavirus pandemic on the mental health and general well-being of Tribal communities. A brief history of federal and Tribal relations is provided, followed by a summary of the current state of mental health in Indian country. The impacts of COVID-19 on Tribal communities is discussed as well as the rise of telehealth to provide much needed mental health services during the pandemic. The article concludes by providing recommendations to continue the progress made to fill the historic gap in mental health services in Indian country post-pandemic.

Tweedy, Ann E, 'The Validity of Tribal Checkpoints in South Dakota to Curb the Spread of COVID-19' (SSRN Scholarly Paper ID 3622836, 9 June 2020)
Abstract: This essay examines the question of whether, during a public health emergency, tribes located in a state that has adopted minimal protections to curb the pandemic may enact stronger protections for their own citizens and territories. May they do so, even when enforcement of these protections causes inconvenience to those simply passing through the reservations and when the regulations affect non-member residents of the reservations? Based on Supreme Court case law, the answer is yes--tribes are within their rights in adopting and enforcing regulations designed to protect their citizens and other reservation residents from a public health emergency.

Yusof, Arif Fahmi Md and Izawati Wook, 'Indigenous Peoples Living in Protected Areas: An Observation on The Impact of COVID-19 in Kampung Peta, Endau-Rompin National Park' (2020) 3(1) INSLA E-Proceedings 44-49
Abstract: COVID-19 pandemic is not only a significant threat to public health. It also has a serious economic impact on people's livelihood including indigenous peoples or Orang Asli communities in Peninsular Malaysia even though they are living far away in rural areas, such as in protected areas. This paper aims to share our observation on an Orang Asli community in Kampung Peta, which is located at the entrance of Endau Rompin National Park, Johor, Malaysia. The research is based on apreliminaryobservation and casual conversation with the villagers in a recent visit. From our short visit to the village in March 2020, we found that even before the Restricted Movement Order (RMO) was implemented, the pandemic has impacted the livelihood of Kampung Peta people whose income are also dependent on tourism activities in the national park. With the effect of Covid-19 expected to last for years to come, it is important to ensure the policy development addresses the minority community groups who live in the rural area including the national park.

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