As COVID-19 continues to take its toll on human health and human life, tribes are facing a daunting reality. To combat the spread of the virus and protect their communities, many tribes are considering the option of excluding visitors from their lands.
The exercise of a tribe’s right to exclude nonmembers from its lands is a core, fundamental inherent right of tribes that, in most cases, is confirmed in treaties and agreements with the United States. It is also a highly controversial action in the eyes of nonmembers, as we have seen in recent media coverage of the standoff between several tribes and the State of South Dakota. Because it can lead to significant conflicts with states and surrounding communities, it is important to understand the applicable federal legal framework related to temporary road closures and access restrictions so that tribes can institute defensible legal decisions for their people moving forward.
In order to be eligible for federal funding to maintain roads providing access to reservations, federal law requires Tribes establish and maintain an inventory of such roads. These roads may include tribal roads, BIA roads, state highways, and federal roads. The inventory is submitted to either the Federal Highway Administration (FHWA) or the Bureau of Indian Affairs (BIA) and included in the National Tribal Transportation Facility Inventory (NTTFI). Roads that are listed on the NTTFI are required to be “open and available for public use.” The temporary restriction or closure of roads on the NTTFI is governed by federal regulations which state: “the public authority having jurisdiction over these roads or the Secretary, in consultation with a Tribe and applicable private landowners, may restrict road use or close roads temporarily when … required for public health and safety…” 25 C.F.R. § 170.114
These regulations designate state or federal agencies as the “public authority,” with jurisdiction to close these roads and require a tribe consult and reach an agreement with the state to temporarily close or restrict access to a state road listed on the inventory. Likewise, a tribe must consult and reach an agreement with the BIA (or other federal agency) to temporarily close or restrict access to a BIA (or other federal agency) road.
Under normal circumstances, a tribe is required to consult with private landowners before temporarily closing or restricting access to a tribal road to protect public health and safety. There is, however, an exception to this consultation requirement. Consultation with any landowners is not required where the grounds for the temporary restriction or closure involves “immediate safety or life-threatening situations.” The BIA recently issued temporary guidance regarding road closures on tribal lands that indicates tribes need not consult with the Secretary of the Interior or landowners when life-threatening conditions exist on a reservation. Significantly, the BIA has determined that the COVID-19 pandemic meets the definition of an “immediate safety or life-threatening situation.”
While federal regulations do not authorize tribes themselves to restrict state or federal roads, they do authorize the Secretary of the Interior to do so without consulting the state in the event of immediate safety or life-threatening situations.
Because the temporary restriction or closure of a road can be disruptive to the public, it is important to have a plan in place prior to taking this step. Considerations should include providing clear policy guidance, maintaining uniformity in the procedures being followed, taking necessary safety precautions to protect the public, developing a temporary traffic control plan, and ensuring that emergency and other essential services can access affected areas.
Many roads through Indian Country are constructed using FHWA funds administered by either the BIA or FHWA. The BIA has determined that a tribe may use its tribal transportation program funds to establish and maintain temporary roadblocks or checkpoints. It may be an option for some tribes to utilize their Tribal Transportation Program funds to pay for the cost of establishing, staffing, and maintaining tribal checkpoints or roadblocks during this pandemic, provided that the tribe promptly notifies its respective road contracting agency certain administrative steps are taken.
The team of tribal advocates at Patterson Earnhart Real Bird & Wilson LLP are available to assess the legal landscape for particular road closures and determine if access restrictions are viable options for your reservation roads. If you have questions or require legal advice on implementing temporary road closures or access restrictions pursuant to these federal regulations to protect the health, safety, and welfare of your tribal membership please contact us for an initial consultation.
Patterson Earnhart Real Bird & Wilson has offices in Louisville, Colorado, and Washington, DC. To learn more, visit nativelawgroup.com.
Patterson Earnhart Real Bird & Wilson LLP is dedicated to the representation of American Indian tribes, tribal entities, and individual Indians across the United States. Our mission is to support and advance the sovereignty, self-sufficiency, and self-governance of our tribal clients. We take time to listen to, and fully understand, our clients’ concerns so we can develop responsive and appropriate solutions.