Healthcare

The Importance of Legal Preparedness for Tribal Nations

by Tina Batra Hershey

Public health emergencies, including infectious disease and natural disasters, are issues that every community faces. To address these threats, it is critical for all jurisdictions to understand how law can be used to enhance public health preparedness, as well as improve coordination and collaboration across jurisdictions. As sovereign entities, tribal nations have the authority to create their own laws and take the necessary steps to prepare for and respond to public health emergencies. Thus, legal preparedness for tribal nations is crucial to public health response.

Tina Batra Hershey headshotLegal preparedness is an important component of public health capacity, as the law is a foundation upon which public health response is based.  Public health legal preparedness has four core elements:

  • Laws or legal authority to carry out public health goals;

  • Competencies of public health professionals to understand and apply relevant laws;

  • Information and best practices for use by public health professionals; and

  • Coordination of legal authority across jurisdictions.

In addition, legal preparedness requires effective authority to:

  • Respond to the crisis,
  • Coordinate public health response across jurisdictions,
  • Resolve disputes, and
  • Aid recovery post-crisis.

Tribal Sovereignty, Tribal Nations & Preparedness

In the United States, there are 573 federally recognized Indian tribes across 35 states. Tribal governments are sovereign entities with the inherent right to self-government, including the authority to create their own laws. This includes taking steps to prepare for and respond to public health emergencies. Tribal nations maintain a government-to-government relationship with the U.S. government.

For a variety of reasons, tribal nations may be particularly concerned about preparedness issues. For example, infectious disease emergencies may pose a greater threat to tribes than to the general U.S. population, as the American Indian/Alaska Native (AI/AN) population has experienced higher mortality rates than other groups during influenza pandemics. In addition, natural and manmade disasters have had significant impacts on tribal communities. Some examples of these disasters include the Deepwater Horizon oil spill in 2010, the Gold King mine wastewater spill in 2015, Hurricane Irma in 2017, and the California wildfires in 2018. The current opioid crisis the nation is experiencing has had devastating impacts on the AI/AN population, as data indicate that AI/AN overdose deaths are significantly higher than other racial and ethnic groups. All of these concerns demonstrate the need for tribal public health infrastructure that can respond to a wide variety of situations.

Collaboration & Coordination

Some tribal nations have large land bases that are self-contained, whereas others have relatively small land bases that are intertwined with surrounding non-Indian communities. In addition, due to historical federal policies, tribal land was sold to non-Indian parties but remained within reservation boundaries. This has created a “checkerboard” pattern of ownership in much of Indian Country, which raises unique jurisdictional challenges.

In general, federally recognized tribes operate independently from state government control. Yet, tribes frequently collaborate and coordinate with states and local governments – through intergovernmental agreements – on issues involving mutual interest, such as emergency preparedness and environmental concerns. There can be challenges, though, with navigating public health and emergency response in Indian Country due to the jurisdictional issues described above. Tribal nations also vary greatly regarding their public health infrastructure and capacity. Therefore, legal preparedness can be critical for effective emergency preparedness and response in Indian Country.

The Importance of Legal Preparedness for Tribal Nations

The Tribal Legal Preparedness Project

The Tribal Legal Preparedness Project (TLPP) at the University of Pittsburgh Center for Public Health Practice (CPHP) has been established to assist tribal nations interested in enhancing their legal preparedness capacity. In 2016 and 2017, CPHP hosted a series of listening sessions around the country with tribal nations and their key partners to seek input regarding:

  • The most important issues tribal nations face in relation to tribal sovereignty during times of preparedness and response; and
  • The resources and authorities that are critical for effective tribal response to public health emergencies.

Based on information collected during the listening sessions – as well as other conversations with tribal nations and their key partners – the TLPP developed online training modules and a resource library with both general and tribal-specific resources regarding legal preparedness. The four free training modules and resource library are accessible by visiting the TLPP website:

  • What Is Legal Preparedness and Why Is It Important to Tribal Nations?
  • Jurisdictional Issues and Using the Law to Enhance Cross Jurisdictional Collaboration
  • Disaster Declarations
  • Best Practices

These modules introduce legal preparedness that can be used to educate tribal leadership, discuss how the law can be used to achieve cross-jurisdictional coordination, and explain the disaster declaration mechanism – including the direct tribal disaster declaration process provided under the Sandy Recovery Improvement Act of 2013. The last module provides an array of best practices shared by tribal nations, including audio and video recordings of tribal public health/emergency management practitioners. These best practices allow tribal nations to share their success stories and help other tribes.

Addressing Legal Concerns Before a Crisis

Legal preparedness is a vital component of emergency preparedness for all jurisdictions, including sovereign tribal nations. For example, in an infectious disease outbreak, tribal nations may need to quarantine their members. If laws, policies, and procedures are not in place, that process can be complicated, particularly if jurisdictional issues arise due to the location of the tribal member. This can also lead to delays in protecting public health. The resources developed by the TLPP will assist tribes with enhancing their legal preparedness capacity by helping them address legal concerns before a crisis occurs.

This publication was supported by the Cooperative Agreement Number NU38OT000141, awarded to ChangeLab Solutions and funded by the Centers for Disease Control and Prevention. Its contents are solely the responsibility of the authors and do not necessarily represent the official views of the Centers for Disease Control and Prevention or the Department of Health and Human Services.

Tina Batra Hershey, JD, MPH, is an assistant professor in the Department of Health Policy and Management at the University of Pittsburgh Graduate School of Public Health, an adjunct professor at the University of Pittsburgh School of Law, and the associate director of law and policy at the Center for Public Health Practice. She is actively involved in state and national programs involving legal preparedness, as well as efforts to enhance tribal legal preparedness for public health emergencies. She is a frequent national speaker on legal preparedness issues and has co-authored two public health emergency law manuals and bench books. Her research interests also include law and policy issues related to the delivery and quality of health care services, as well as health equity. Before coming to Pitt Public Health, she was a health care attorney in Washington, D.C., and Pittsburgh, Pennsylvania. She is a cum laude graduate of Villanova University and received a joint Juris Doctor (with honors) and Master of Public Health in Health Policy from The George Washington University.