Biden’s new vaccine mandate could extend to tribes. Nobody knows how

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Email chains and phone calls between tribal chiefs and lawyers began shortly after President Joe Biden on Thursday announced a broad plan to vaccinate millions of people against COVID-19.

Large private employers must require their employees to be vaccinated or undergo frequent tests. Federal employees, federal contractors, and staff at many health care facilities should also be vaccinated.

Many of Oklahoma’s larger companies do not require vaccines for their employees. It could change.

But how will these requirements affect tribal governments and the businesses they operate?

“We’re all trying to figure out what the president’s six-point plan means,” said Mary Pavel, a lawyer in Washington, DC and former chief counsel for the Senate Indian Affairs Committee.

“The answer may depend on the specific situation of a tribe, instead of being a general response,” said Pavel, who belongs to the Skokomish tribe in Washington.

Following:Legal arguments, workplace disruptions feared as side effects of Biden’s vaccine mandate

Chickasaw and Choctaw Nations Among Oklahoma’s Top Employers

As sovereign governments, tribes often employ tens, hundreds or even thousands of indigenous and non-indigenous workers. Some employees provide basic public services such as road improvement. Others work in tribal business ventures, which range from ranches to casinos. In rural communities, the tribal wage bill can be among the largest. In Oklahoma, the Chickasaw and Choctaw Nations are two of the state’s largest employers.

Neither have yet revealed how they think Biden’s new rules might affect them. But Chickasaw Governor Bill Anoatubby released a statement saying 78% of all employees – and 88% of healthcare workers – were fully immunized. In addition to employing thousands of workers in government jobs, the south-central Oklahoma tribe operates healthcare facilities and several businesses, including a casino near the Texas border billed as the largest in the world. Job postings for Chickasaw’s healthcare positions list the COVID-19 vaccine as a requirement.

“We consistently apply effective vaccination and testing guidelines in the workplace, which provide a safer environment for our employees, citizens and guests,” said Anoatubby.

Following:When does President Biden’s vaccine mandate come into effect? This is what we know

Chickasaw Governor Bill Anoatubby

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The tribal chiefs all want to take action to end the pandemic, just like any other public official, said James Meggesto, who heads the Native American law firm at Holland & Knight in Washington, D.C. their government as they see fit. There is no one-size-fits-all approach that will work in the Indian country, he said.

“If they are undertaking something that is going to impact the Indian country and involve tribal sovereignty, they should consult with tribal governments,” said Meggesto, a member of the Onondaga Nation based in upstate New York State. .

Biden vaccine mandate comes as COVID cases rise nationwide

Biden’s push to vaccinate up to 100 million Americans lands amid a deadly wave of coronavirus. Deaths and hospitalizations started to increase in July and have continued to increase. Unvaccinated people fare the worst, according to doctors and public health experts. Vaccines are free and widely available for people 12 years of age and older. Yet millions have not received the blow.

In Oklahoma, for example, the statewide vaccination rate is 45%, compared to the national score of 53.4%. Only 11 states have lower rates than Oklahoma.

Tribal health facilities emerged as major vaccination centers in Oklahoma and across the United States shortly after doses became available this spring. Months later, many are still offering pictures to the general public, in addition to citizens and employees.

Covid19 pandemic:Oklahoma tribes ramp up vaccination efforts amid coronavirus resurgence

How tribes are fighting COVID-19

While many tribes have encouraged employees to get vaccinated, few have implemented workforce vaccination mandates. One exception is the Cheyenne and Arapaho tribes in western Oklahoma. Gov. Reggie Wassana issued an executive order on August 12 giving employees three weeks to either get their first shot or be put on unpaid leave until they are deemed safe to return to work.

The Navajo Nation, whose reservation covers parts of Arizona, New Mexico and Utah, announced in August that employees should either receive the vaccine or undergo frequent testing.

COVID-19 tracker in Oklahoma:Daily updates on new cases, deaths, vaccines for September 2021

“I have tribal clients who instituted this vaccine test or warrant months ago,” Pavel said. “I suspect they’re looking at the president and saying, ‘Well, it’s about time you made up for it. “”

But other customers, she said, have stayed away from requirements for incentives to receive the vaccine.

A sample is sealed as staff administer a COVID-19 test during an employee testing event on August 4 at the Little Ax Health Center of the Absentee Shawnee Tribe in Norman.

For these tribes, the impact of Biden’s vaccine needs remains uncertain. For example, a tribal company that has contracts with the Department of Defense might be subject to the vaccine requirement of a federal contractor. But the math is not clear.

“The tribes are not subject to the regulatory power of the state,” Meggesto said. “It gets more murky when it comes to the federal government,” Meggesto said.

Biden tasked the Occupational Health and Safety Administration with drafting and enforcing vaccine and testing rules among large private employers. The Supreme Court has never weighed in on the application of OSHA standards in the Indian country, Pavel said.

OSHA regulators have an obligation to consult with tribes before issuing rules that could affect their sovereign rights, Meggesto said.

“Tribes are sovereign governments, and it doesn’t matter what industry or for-profit business they are in,” he said. “It is for the benefit of government revenues, and that no longer makes it subject to regulation in our opinion.”

Some tribal leaders may choose to challenge OSHA’s efforts to enforce any new vaccine mandate, Pavel said.

COVID-19 tests are in high demand .:Here’s where to find one in Oklahoma City.

The story continues below.

Could Oklahoma gaming compacts come into play?

Whether tribes should demand vaccines as part of Biden’s new plan could also depend on existing legal agreements, which govern everything from casino operations to cigarette sales. Some pacts could say that the tribes agree to comply with all federal health standards, which could be interpreted to include the president’s new vaccine requirements, Pavel said.

In response to Biden’s plan, Cherokee Nation Senior Chief Chuck Hoskin Jr. said in a statement the tribe was “already ahead of the curve on tribal government employee vaccination rates and COVID testing. obligations of our sales staff “.

The Northeastern Oklahoma tribe is the second largest in the United States and has thousands of employees across its government, healthcare, and business operations. Hoskin said nearly 75% of government employees are vaccinated. Workers in the tribe’s commercial arm, Cherokee Nation Businesses, are tested twice a week for COVID-19. Cherokee leaders are evaluating additional vaccination and testing measures, Hoskin said.

“We will make these decisions in accordance with our status as sovereign government and our demonstrated commitment to public health and safety,” he said.

Molly Young covers Indigenous Affairs for the USA Today Network’s Sunbelt Region of Colorado, Oklahoma, New Mexico and Texas. Contact her at [email protected] or 405-347-3534.

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