First Nations Peoples 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.
Adewumi, Afolasade A, ‘Jurisprudential Basis of the Attitude of Traditional Healers in South-West Nigeria on COVID-19 Infection in Ibadan, Oyo State, Nigeria’ (2023) 10(2: Special Edition on COVID-19) KNUST Law Journal 127–136 Abstract: Health is seen as the most basic asset every human being has. The health of an individual and that of his family members and close associates has always been a source of concern to individuals over the years, making well-being to be synonymous with health. The COVID-19 infection outbreak has affected the whole world and the medical profession is yet to understand it fully. All over the world, attempts have been made and are still being made to provide a cure for the infection. Inasmuch as medical practitioners are pulling their weight in responding to the pandemic, traditional medicine ought not to be ignored since traditional healers’ concept of disease is wider than that of medical practitioners. Moreover, traditional healers are believed by their communities to represent the symbol of their health and prosperity. This case study carried out in Ibadan, the largest city in West Africa, brings to fore the jurisprudential angle to the attitude of the traditional healers to the COVID-19 infection and states how they can assist in enforcing the safety precautions to prevent community spread of the virus.
Angioi, Silvia, ‘Addressing Health Inequalities in Times of COVID-19: Minorities and Indigenous Peoples between Deeply Rooted and New, Emerging Forms of Discrimination’ (2023) 16(1) The International Journal for Religious Freedom (IJRF) 19–30 Abstract: In numerous countries, the spread of the COVID-19 epidemic has affected ethnic, racial and religious minorities most severely, along with indigenous peoples. On one hand, the pandemic is laying bare the presence of deeply rooted patterns of discrimination in access to health; on the other hand, for some states and non- state actors, it also represents a useful opportunity to persecute particular ethnic and religious minorities through additional forms of discrimination, labelling, stigmatization and scapegoating.
Bello, Lateefat Adeola, ‘Overview of Legal Issues in the Protecton of Indigenous Herbs for the Treatment of Covid -19 and Other Ailments’ (2022) 28(1) Proceedings of the Academic Conference of Sub-Sahara African Academic Research Publications on Knowledge and New Discoveries in the Sustainable Development: Inter-disciplinary Approach 1-9 Abstract: Medicine is as old as man; the consensus is that nature has a cure for every ailment. In time past life-threatening diseases that defied orthodox medicine were successfully treated in many parts of the world with traditional herbs some of which have now been converted to drugs and supplements used by patients. Nature in itself is replete in the environment around us. Nigeria is richly blessed with abundance of herbs. The infusion from some of these herbs, have been traditionally and successfully used in the treatments of ailments that have defied orthodox medical treatment. While the Covid -19 pandemic engulfs the world creating confusion in treatment and applicable remedies in its wake, many countries have attempted the application of alternative medicine for the management of this widespread disease. The use of indigenous herbs in this instance should ordinarily be a welcome development, but the possible use of herbs in the instance case has been trailed with lots of bad publicity that created fear even amongst Nigerians many of whom may have in the past used these remedies for one ailment or another. This has raised multitude of questions on the effectiveness and reliability of herbs, what impedes the use(s) of herbs ? Are there requisite legal and institutional framework to address the possible use of herbs for the treatment of Covid -19 and other related illnesses? and what are the measures that must be put in place to protect this age long indigenous method for treatment of illnesses as a stop gap treatment in future occurrences. To address these questions, this paper adopts a doctrinal approach in its analysis of existing position on herbal cure, gave overview of attempts to protect the indigenous knowledge of herbs and concludes with recommendations on providing an enabling legal environment to encourage, research and use of herbs as alternative to orthodox medicine as immediate and preparatory strategies in the fight against pandemics where orthodox treatment may fail to yield the desired results.
Carstens, Margret, ‘Indigenous Rights and Covid-19: Indigenous Land and Health Under Serious Threat in Brazil’ (2021) 29(3) International Journal on Minority and Group Rights 528–576 Abstract: Abstract This article analyses the impact of covid-19 on the rights of indigenous peoples, particularly in Brazil. It deals with the current situation of the Brazilian indigenous peoples, the impacts of the pandemic, the rights created on the adoption of protective sanitary measures for indigenous people and land rights in Brazil. Does the Brazilian government comply with international law, with constitutional rights of indigenous peoples in the current covid-19 crisis, particularly with the Brazilian Supreme Court decision on the adoption of protective sanitary measures for indigenous people? With a focus on the 2020 Report of the Special Rapporteur on the Rights of Indigenous Peoples, this paper will identify and examine the gaps in protection of the indigenous peoples rights by reason of the impact of the covid-19 crisis. This paper argues that the crisis is misused as an occasion for land invasions, deforestation, forest fires and the denial of basic indigenous rights. Especially in Brazil, a transformative change, an emergency support for indigenous peoples, and a still stand agreement on logging and extractive industries operating next to indigenous communities are needed. Brazilian NGO statements give guidelines as to how to manage the threats of the present pandemic on indigenous peoples of Brazil. The Inter-American Commission on Human Rights, the United Nations and the International Labour Organisation all offer further relevant suggestions as to how to address the serious impacts in the response to and the aftermath of this crisis.
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 Māori 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 Māori 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 Māori 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, Aimée, 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) 49Jurisdiction: 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, ‘Tribes, Vaccines, and Covid-19: A Look at Tribal Responses to the Pandemic’ (2021) 49(1) Fordham Urban Law Journal 31–64 Abstract: The article focuses on how tribes were particularly susceptible to the COVID-19 virus and background information on Indians’ historical relationship with western medicine and pharmaceutical research. It mentions explores how tribal sovereignty impacts public health measures other than vaccine distribution and other pandemic response measures, such as business shutdowns and mask mandates. It also mentions tribes implemented mask mandates, curfews, and other safety measures.
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 21Jurisdiction: 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.
Fitzmaurice, Luke (Te Aupōuri/Pākehā), ‘What Can the Māori-Led COVID Roadblocks Tell Us about a Bicultural Future Legal System in Aotearoa New Zealand?’ (2021) 1(1) Legalities 7–12
Fitzmaurice, Malgosia, ‘The Covid-19 Crisis, Indigenous Peoples, and International Law: A Vulnerability Perspective’ 173-181 in Makane Moïse Mbengue et al (eds), Crisis Narratives in International Law (Brill, 2021) (OPEN ACCESS) Extract from Introduction: Research undertaken globally in the wake of the COVID-19 pandemic indicates that resilience gaps that are already the status quo in respect of indigenous peoples are situating numerous communities at imminent risk of disaster. This short essay presents a brief risk profile analysis carried out by reference to Martha Fineman’s theory of vulnerability. Extensive vulnerability manifestations are identified according to different sets of relationships, featuring significant differential barriers for access to goods and services, which place indigenous peoples in a situation of alarming exposure to the impacts of COVID-19. This author argues that awareness of these relationships and obstacles can and should guide State responses, and highlight the role of law as a necessary tool for enabling and maintaining much needed, appropriately targeted resilience work.
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.
Fletcher, Matthew, ‘Pandemics in Indian Country: The Making of the Tribal State’ (2022) 18(2) University of St. Thomas Law Journal 295–306 Abstract: This Essay is inspired by the fascinating narrative told by John Fabian Witt theorizing how epidemics make states and how states can also make epidemics. The two stories centered in Peshawbestown, Michigan, during the 1881 smallpox outbreak and the 2020–2021 COVID-19 pandemic seems to play into that story. The state (acting through the local and federal government) made the 1881 outbreak fatal, while the epidemic (acting through the tribal and federal government) made the state (in this case, the tribe) in 2020–2021. The story here seems to be one of sovereignty. In the smallpox era, the tribes exercised almost no sovereignty. Now they are practically self-governing; the incredible success of the Grand Traverse Band is a ringing endorsement. The tribe is acting like a capable and responsive government.
Florey, Katherine, ‘Toward Tribal Regulatory Sovereignty in the Wake of the COVID-19 Pandemic’ (2021) 63(2) Arizona Law Review 399-437 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.
Florey, Katherine, ‘Tribal Land, Tribal Territory’ (2021) 56 Georgia Law Review (forthcoming) Abstract: In the summer of 2020, two significant events brought into focus the relationship between Indigenous nations in the United States and the land they govern. First, in a controversy that made national headlines, several tribes in South Dakota clashed with Gov. Kristi Noem about their power to impose Covid-19-related checkpoints on state highways passing through Indian country. Borders have potent symbolism; by detaining drivers even briefly at theirs, the South Dakota tribes made plain that travelers were entering a separate jurisdiction in which different rules and policies applied. At the same time the checkpoint controversy was brewing, the Supreme Court decided the pathbreaking case McGirt v. Oklahoma. While only incidentally about tribal territorial jurisdiction, Justice Gorsuch’s opinion spoke directly to what it means for land to be tribal territory, suggesting that a tribe may retain jurisdiction over a reservation even if parts of it are sold to private owners. This would be an unremarkable statement in any other context, but it is near-revolutionary in federal Indian law, where Supreme Court–created doctrine has left tribes with very little ability to regulate non-Indians on fee land. This Article takes these two developments as a starting point for reflecting on the relationship between tribal land and tribal territory. It aims to undertake a comprehensive account of the varied strands of doctrine the Court has put forth on this subject, including the limits on tribal regulatory authority over fee land under Montana v. United States, the ever-shifting right to exclude that the Court has characterized in numerous and inconsistent ways, and the uncertain relationship between the two. After surveying current doctrine, the Article suggests a reimagining of both Montana and the right to exclude in a way that would facilitate a return to the territorial control tribes traditionally exercised.
Forbes, Mitchell, ‘Beyond Indian Country: The Sovereign Powers of Alaska Tribes Without Reservations’ (2023) 40(1) Alaska Law Review 171–188 Abstract: The Alaska Native Claims Settlement Act of 1971 (ANCSA) devised a land entitlement system markedly different from the Indian reservation system that prevailed in the Lower 48 states. It directed the creation of twelve, for-profit Alaska Native regional corporations and over 200 private, for-profit Alaska Native village corporations, which would receive the bulk of Native land in the state. This corporate model left nearly all tribes in Alaska without a land base. As such, there is very little Indian Country land in the state over which tribes can exercise territorial-based sovereignty. Yet, the Supreme Court has long recognized the power of tribes to exercise membership-based jurisdiction. This Comment analyzes a range of state and federal court decisions addressing the authority of tribes and argues that Alaska tribes, through membership-based jurisdiction, can exercise various sovereign powers, like the exclusion of nonmembers. Importantly, this membership-based jurisdiction does not depend on lands over which tribes can exercise jurisdiction. Therefore, the exclusionary orders imposed by several Alaska Native tribes during the Covid-19 pandemic in 2020 were valid exercises of the tribes’ sovereign powers.
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.
Irawati, Irawati et al, ‘The Customary Law of the Communal Property and Sustainability in Coping with the Economic Impact of Covid-19 in Minangkabau Indigenous Peoples, Indonesia’ (2024) 12(1) Journal of Law and Sustainable Development Article e2548 Abstract: This paper explores the culture of the Minangkabau indigenous peoples, West Sumatra, Indonesia, in the customary law of communal property to ensure the economic sustainability of the communal members who face the economic impact of COVID-19. Our study focuses on implementing the cultural heritage of property management of the indigenous peoples of Minangkabau in West Sumatra, Indonesia. The cultural law of this Minangkabau ethnic can maintain access to land to ensure food security and economic sustainability for their communal members affected by the COVID-19 pandemic. This study concludes that customary law, shared property management, and leadership are essential keys to the economic sustainability of indigenous peoples during times of crisis.
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 Māori 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 Māori 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 mātauranga Māori. 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 Thériault, ‘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.
Lukose, Prof Lisa and Alankrita Mathur, ‘Sustainable Development through the Prism of Indigenous Knowledge: A Revisit to Intellectual Property Rights Issues during COVID Pandemic’ (2022) 63(3) The Journal of Indian Law Institute 277–297 Abstract: Traditional notions of sustainable development have strong inter-generational considerations striving for sustainable utilization of resources. The sustainable development and intellectual property rights though traditionally have different areas of operation but the nexus between the two in contemporary world is extremely interesting to study. The existence of rich biodiversity on this earth is the greatest gift from God to mankind and the maintenance of the same for a better future is the collective responsibility of world community. The indigenous communities inhabiting the biodiversity rich areas, owing to their close association with nature plays remarkable role in conserving the environment and maintaining the ecological balances through indigenous knowledge. With the advent of biotechnology, biopiracy and commercial exploitation of such indigenous knowledge for economic gains have become rampant affecting adversely not only the very indigenous community but also certainly hampering the sustainable development goals. This paper shall be an attempt to (i) view sustainable development through the prism of indigenous knowledge and the related intellectual property rights concerns (ii) examine the IPR issues in the contemporary pandemic period and (iii) analyse the resilience of indigenous people in COVID-19 crisis and the lessons therefrom.
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.
McGuire, Michaela, ‘“We Can Do Our Own Thing Here on Haida Gwaii”: The Haida Nation’s Response to COVID-19’ (2023) 14(3) The International Indigenous Policy Journal 1–25 Abstract: The Council of the Haida Nation (CHN) is the National government of all Haida citizens—and their response to the COVID-19 pandemic on Haida Gwaii—is the central focus of this study. The CHN’s response is contextualized through an analysis of governance structures, consideration of previous epidemics, diseases, and health inequalities. The research questions for this project include: (1) How did the CHN’s role shift during the COVID-19 emergency response on Haida Gwaii; (2) What lessons can be garnered from the CHN’s response to inform future Haida Nation governance? To explore these research questions I conducted semi-structured, in-depth interviews with a sample of seven people who were living on Haida Gwaii during the pandemic and had some involvement with the CHN. Following an iterative process of data analysis, four main themes emerged from the data. These themes encompassed the inclusive approach taken by the CHN, the tireless work a small group of people did, and the importance of jurisdiction and self-determination while also considering lessons learned and capacity. The findings demonstrated the importance of continued pushes for self-determination as well as the ability of the CHN to expand its governance role.
Melo, Milena Petters and Thiago Burckhart, ‘The Rights of Indigenous Peoples in Brazilian Amazon During Covid-19 Pandemic: National and International Legal Measures’ (2021) 2(64) Revista Juridica 235–260 Abstract:
Objectives: Taking in consideration the impact of the Covid-19 pandemic on Brazilian law, the aim of this article is to analyze the legal measures adopted by the Brazilian State in order to safeguard indigenous peoples in Brazilian Amazon, focusing on the effective responses to indigenous demands, both internally and internationally, during 2020.
Methodology: The research, carried out within the scope of international academic cooperation, is methodologically grounded in the study of law as a constitutional policy, in dialogue with the sociological analysis of Law, which considers the interactions between constitutional and international level, using the hypothetical-deductive method. The hypothesis states that: 1) in the internal sphere, there are problems of applicability and effectiveness of the new legal measures, triggering the judicialization of indigenous rights; and problems of legitimacy, related to the adequacy of these legal measures to indigenous way of life and their participation in its drafting and application; and, 2) at the international level, the multidimensional crises in line with the pandemic crisis reduced the possibility of improving international cooperation among Amazonian countries, including through existing international organizations, fostering a form of transnational cooperation by non-governmental actors.
Results: As a result, the hypothesis remain confirmed, and it points also to another problem, concerning the ‘time-lapse’ of the enacted measures.
Contribution: The main contribution consists in highlighting the inadequacy dynamics of the legal measures adopted by Brazilian State aimed at safeguarding indigenous peoples in facing Covid-19 pandemic, both nationally and internationally.
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)Objectives: Taking in consideration the impact of the Covid-19 pandemic on Brazilian law, the aim of this article is to analyze the legal measures adopted by the Brazilian State in order to safeguard indigenous peoples in Brazilian Amazon, focusing on the effective responses to indigenous demands, both internally and internationally, during 2020.
Methodology: The research, carried out within the scope of international academic cooperation, is methodologically grounded in the study of law as a constitutional policy, in dialogue with the sociological analysis of Law, which considers the interactions between constitutional and international level, using the hypothetical-deductive method. The hypothesis states that: 1) in the internal sphere, there are problems of applicability and effectiveness of the new legal measures, triggering the judicialization of indigenous rights; and problems of legitimacy, related to the adequacy of these legal measures to indigenous way of life and their participation in its drafting and application; and, 2) at the international level, the multidimensional crises in line with the pandemic crisis reduced the possibility of improving international cooperation among Amazonian countries, including through existing international organizations, fostering a form of transnational cooperation by non-governmental actors.
Results: As a result, the hypothesis remain confirmed, and it points also to another problem, concerning the ‘time-lapse’ of the enacted measures.
Contribution: The main contribution consists in highlighting the inadequacy dynamics of the legal measures adopted by Brazilian State aimed at safeguarding indigenous peoples in facing Covid-19 pandemic, both nationally and internationally.
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, ‘Role of Traditional Knowledge in the COVID-19 Battle’ (2022) 25(2) The Journal of World Intellectual Property 279–291 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.
Parwata, Anak Agung Gede Oka et al, ‘Customary Law during the Covid-19 Pandemic: Supporting Local Government’s Policy’ (2023) 10(1) Jurnal Hukum Prasada 49–58 Abstract: The covid-19 pandemic has become a national disaster, therefore the participation of all parties is needed in efforts to handle this disaster. Traditional villages with their customary law have a strategic role in handling Covid-19 starting from managing their territory to distributing social assistance. Through traditional village institutions, the Bali Provincial Government uses local wisdom in increasing community participation and institutions to be actively involved in handling activities and overcoming the impact of Covid-19. This study aims to determine the role of customary law to support government policies in handling Covid-19 in Bali. This study is a descriptive study in which the method used is a normative legal research method, using a statutory approach, a historical approach, a conceptual approach, a philosophical approach, and a case approach. The legal materials used are primary legal materials, secondary materials, and non-legal materials. Based on the research conducted, it was found that Balinese customary law plays a role in supporting government policies in handling Covid-19 in Bali because it is in accordance with the philosophy and principles of customary law adopted by the Balinese indigenous people.
Petersen, Nancy et al, ‘Respectful Tribal Partnership: What Philanthropy Can Learn From the Navajo Nation’s Collaborative Response to the COVID-19 Crisis’ (2022) 14(2) The Foundation Review 93-103 Abstract: The gravity of the COVID-19 pandemic and its disparately harsh impact on Indigenous peoples are now well known. U.S. death rates normalized by population, for example, have been far higher for Native Americans than for the white population in the United States. Many funders, realizing that basic human services are lacking for many Native American and Indigenous communities, have responded to the crisis. While this desire to act is laudable, many fail to grasp the complexities and necessity of applying trust-based collaborative principles that respect tribes as sovereign nations. This article describes a successful model for collaboration among a tribal nation, funders, and subject-matter experts to address a critical problem — access to clean water for Navajo families — based on respecting the leadership and values of the Navajo Nation and born from the pandemic crisis taking place there. Collaborating partners were drawn from dozens of state and federal agencies, nonprofits, universities, and philanthropies. All were connected by honor and respect for the Diné — ‘The People,’ as the Navajo call themselves. This model can be replicated by funders working with multiple experts, agencies, and governments to continue to meet community resilience challenges that do not retreat with the pandemic and to promote equity and justice in any philanthropic venture.
Saba, Rasha Al and Samrawit Gougsa, ‘Exposing Inequalities: The Experience of Minorities and Indigenous Peoples During COVID-19 Emergencies’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 399 Abstract: Many minorities and indigenous peoples lived in precarious situations prior to the COVID-19 pandemic. This chapter assesses how emergency measures introduced by governments to curb the spread of COVID-19 led to an increased risk of infection, unemployment and forced labour for minorities and indigenous peoples across the world. Discriminatory and extreme policing of these communities as a mode to enforce these measures is also analysed. While governments have introduced support packages to mitigate impacts, this chapter examines the extent to which social protection measures were inclusive and responsive to the specific challenges faced by minorities and indigenous peoples. As states’ focus shifted to COVID-19 vaccine supply and distribution, key issues arose in relation to equitable access to, and uptake of, vaccines by minorities and indigenous peoples. The chapter argues that the experience of minorities and indigenous peoples during COVID-19 was rife with deep inequalities in the enjoyment of economic and social rights in comparison to majority societies. The chapter concludes by offering ways forward, including the need to guarantee universal health coverage for all and emphasising the importance of featuring the experiences of minorities and indigenous peoples in the design and implementation of mitigation measures.
Saint-Girons, Marie et al, ‘Equity Concerns in the Context of COVID-19: A Focus on First Nations, Inuit, and Métis 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, Métis 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.
Stanley, Elizabeth and Trevor Bradley, ‘Rethinking Policing in Aotearoa New Zealand: Decolonising Lessons from the Covid-19 Pandemic’ (2021) 33(1) Current Issues in Criminal Justice 131–137 Abstract: Notwithstanding the global praise directed to New Zealand’s approach to Covid-19, the pandemic has intensified harms and inequalities in many areas of national life. The racialised, classed and gendered inequities that percolate through this settler-state have intensified, especially within criminal justice settings. At the same time, the pandemic has illustrated other opportunities for protective and just measures – not least in terms of how Māori asserted self-determination by establishing checkpoints to prevent potential carriers of Covid-19 from reaching rural Māori communities. This article shows how these responses highlighted the fundamental limits of state protection for Māori on health or law and order grounds but they also offered pathways for greater policing autonomy for Māori. From here, and drawing on the examples of Watene Māori (Māori Wardens) and Te Pae Oranga (Iwi Community Panels), the article considers how self-policing within and among Māori communities might be more clearly determined and actioned in ways aligned to the principles of Te Tiriti o Waitangi (the Treaty of Waitangi).
Stanley, Fiona et al, ‘First Nations Health During COVID-19 Pandemic: Reversing the Gap’ in Belinda Bennett and Ian Freckelton (eds), Pandemics, Public Health Emergencies and Government Powers: Perspectives on Australian Law (Federation Press, 2021)
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.
Suryani, Reni, ‘Preserving Legal Protection for Sundanese (Sunda Naga and Baduy Kenekes Tribes) Wisdom Amidst Modernization in the Face of COVID-19 Challenges’ (2024) 2(2) Sinergi International Journal of Law 108–119 Abstract: The COVID-19 pandemic has entered various countries around the world, and Indonesia is no exception to this disaster. As a country with diverse cultures, many Indonesians have used local wisdom to face the COVID-19 pandemic. This research aims to understand the government’s protection of the Baduy Tribe in Kanekes in facing the COVID-19 pandemic and the existence of the Baduy Tribe in Kanekes in facing the dimensions of modernization and the COVID-19 pandemic. The existence of this indigenous community is regulated in the 1945 Constitution of the Republic of Indonesia Article 18B Paragraph (2). This research uses empirical juridical research, which is a study that examines and analyzes the legal behavior of individuals or the Baduy tribal community in relation to the law. The data sources used are primary data obtained through observation and interviews with informants from the Baduy Tribe and the Sundanese Tribe in Kampung Naga. The results show that they overcome the COVID-19 pandemic through their well-preserved wisdom and culture, forming a strong mentality that allows the existence of life in Kampung Naga and the Baduy Tribe to continue without being affected by COVID-19.
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.
Tanana, Heather et al, ‘Universal Access to Clean Water for Tribes in the Colorado River Basin’ (University of Utah College of Law Research Paper No (forthcoming), September 2021) Abstract: The coronavirus pandemic has tragically highlighted the vast and long standing inequities facing Tribal communities, including disparities in water access. According to the Centers for Disease Control and Prevention (CDC), American Indians and Alaska Natives (AI/AN) are at least 3.5 times more likely than white persons to contract COVID-19. Limited access to running water is one of the main factors contributing to this elevated rate of incidence. This report describes current conditions among Tribes in the Colorado River Basin. It outlines the four main challenges in drinking water access: (1) Native American households are more likely to lack piped water services than any other racial group; (2) Inadequate water quality is pervasive in Indian country; (3) Existing water infrastructure is deteriorating or inadequate; and (4) Operation and maintenance of water systems is a critical component of ensuring long-term water security. The report also examines existing federal assistance programs to provide drinking water access to Tribes. In exchange for the cession of millions of acres of lands, Tribes received certain promises from the federal government. These promises often included the establishment of a reservation as a permanent homeland for Tribes. Based upon an underlying trust responsibility, the federal government has a duty to protect Tribal treaty rights, lands, assets, and resources. Access to a clean, reliable supply of water is basic to human health and clearly a necessary component to providing a habitable and permanent homeland. In at least partial recognition and fulfillment of its treaty and trust responsibility to provide access to clean water for Tribes, various federal agencies have established programs that provide support for water related projects. However, these programs are often underfunded and have other limitations. As a result, obtaining significant progress in providing universal access to clean water for all Americans has remained elusive. Finally, the report concludes with policy recommendations to address Tribal community water needs. Key recommendations include adopting a whole of government approach and fully funding federal programs related to Tribal drinking water projects. A window of opportunity has opened to address water insecurity in Indian country. It is critical that action be taken before that window closes and these issues are ignored for several more generations.
Tsuji, Stephen RJ, ‘Economic Recovery in Response to Worldwide Crises: Fiduciary Responsibility and the Legislative Consultative Process with Respect to Bill 150 (Green Energy and Green Economy Act, 2009) and Bill 197 (COVID-19 Economic Recovery Act, 2020) in Ontario, Canada’ (2022) 13(3) The International Indigenous Policy Journal 1–40 Abstract: The Green Energy and Green Economy Act (2009) was an omnibus bill that affected a number of other acts. Due to the breadth of its effects, it should have seen a rigorous consultation and review process; this is especially true given how it would impact First Nations and its explicit mention in the Bill. However, it took less than three months for it to receive Royal Assent and become an act. This timeline is extremely short, even among similar bills within the same context. One of the core reasons for this swift transition is due to its labeling as green energy, which has benign connotations. This effectively allowed the bill to be expedited through the consultation process. The consultation process had many hurdles of its own that inhibited meaningful consultation including its timeframe, location of hearings, accessibility, and other factors. The term green energy was also never defined within the Act, meaning it only served as a form of signaling. This raises many questions with respect to the Government of Ontario’s conduct in the situation and how they handled their legal duty to consult with Indigenous people of Ontario, Canada. There are many voices that have raised issues with this process. If nothing else, this example serves the purpose of demonstrating the dangers of green-labelling, especially to Indigenous people of Canada and other Indigenous groups worldwide.
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.
Waight, Nerita et al, ‘COVID-19: A Missed Opportunity to Reimagine the Justice System for Our People’ (2021) 33(1) Current Issues in Criminal Justice 19–26 Abstract: At a critical juncture in carceral politics globally and in Australia, the rapid responses to the COVID-19 pandemic reveal the capacity for timely, systemic change in the justice system. Despite international best practice and the Black Lives Matter movement, this comment considers how the pandemic was a missed opportunity for governments to re-imagine the justice system to end the over-incarceration and deaths in custody of Aboriginal and Torres Strait Islander people. Australian governments’ carceral, punitive policing and prison COVID-19 responses have disproportionately caused harm to, discriminated against and breached the rights of Aboriginal and Torres Strait Islander people; the full consequences of which are yet to be realised.
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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