Clash between South Dakota governor, tribes escalates over checkpoints

SIOUX FALLS, S.D. – South Dakota Gov. Kristi Noem said on Monday that she'll be pursuing legal action against two tribes to gain "clarity" on checkpoints being used to screen travelers coming onto reservations.

However, Noem didn't answer questions during a press conference on Monday about when she'll file a federal lawsuit against the tribes.

The Cheyenne River and Oglala Sioux tribes set up checkpoints on roads traveling through the reservations at the beginning of April to curb the spread of COVID-19 onto the reservations.

Noem notified Cheyenne River Chairman Harold Frazier and Oglala President Julian Bear Runner on Friday that she would take legal action in federal court if the two tribes didn't remove their checkpoints by Sunday.

She said Monday that she's been discussing the checkpoints with the tribes for about a month, but they remain an issue and Friday's notification wasn't the start of the situation. She said she still hopes to see a resolution as a result of discussions between the state and tribes.

Noem said she understands the intent behind the checkpoints. She said she's also concerned about populations vulnerable to the coronavirus on the reservations, and the state has helped Indian Health Services prepare for the pandemic with supplies and personnel.

"It's a big concern for me and always has been," she said.

However, Noem said she's heard that emergency and essential services aren't able to get through the checkpoints and ranchers can't get through to reach their property. She said tribal leaders have given her a list of who is allowed through, but it differs from the actions she's heard about. She declined to give details of any specific incidents.

The tribes can implement checkpoints on tribal roads, but the issue is the checkpoints on state and U.S. highways, Noem said.

"I don't think checkpoints are a good idea on state and federal highways," Noem said.

The Pine Ridge Indian Reservation is in a lockdown until noon on Wednesday after the first two COVID-19 cases were reported on Monday, according to the Oglala Sioux Tribe, one of the tribes at odds with Noem. The lockdown is intended to give contact tracers time to track the the cases and slow community spread of the coronavirus on the reservation.

During the lockdown, residents aren't allowed to leave their homes except for medical emergencies and critical service employees can go to and from work, according to an executive order signed by Oglala President Julian Bear Runner.

Legislators urge a 'better approach'

However, 17 legislators are arguing that Noem can't legally tell two tribes to remove checkpoints on their reservation borders as part of their coronavirus response.

The lawmakers, most of whom represent legislative districts that include a reservation, sent a letter to Noem on Saturday asking her to meet with legislators and the Cheyenne River and Oglala Sioux tribal leaders to find a resolution instead of heading to federal court.

The legislators pointed out that they could have helped her discuss the checkpoints with Frazier and Bear Runner.

"We think a better approach is communication rather than confrontation, cooperation rather than constitutional crisis and discussion rather than demands," the legislators' letter states.

Noem said she appreciates the legislators' concern about the situation. She noted that she's had discussions with the tribes about the checkpoints for the past month.

How we got here

The Cheyenne River and Oglala tribes posted checkpoints at the beginning of April to screen travelers coming onto the reservations out of concern that an outbreak on the reservation could overwhelm health care facilities. The Oglala has four ventilators for more than 46,000 enrolled tribal members on its reservation, according to Bear Runner.

The checkpoints are part of a coronavirus response on reservations in South Dakota that has included lockdowns and shelter-in-place orders.

The legislators warned Noem that she isn't correct when she says tribal governments can't establish checkpoints within reservation boundaries.

"We do not wish to be party of another lawsuit that will ultimately cost the people of South Dakota more money," the legislators wrote.

The Fort Laramie Treaties of 1851 and 1868 gave tribes jurisdictional powers, and an appeals court determined in the 1990 court case Rosebud v. state of South Dakota that the state doesn't have any jurisdiction over highways running through Native American land without tribal consent, according to the legislators' letter. South Dakota doesn't have any state laws regarding checkpoints, and the state doesn't have authority to enforce state law on a reservation, the letter states.

Tribes are within their right to manage traffic on tribal roads, but the state has a clear role on state and U.S. highways, according to Maggie Seidel, Noem's senior policy advisor. Tribes are letting tribal members come and go, but aren't doing the same for non-tribal members.

Seidel said the 1990 court case doesn't apply to the current situation because it's about the ability of tribes to interrupt the flow of non-tribal traffic on state and U.S. highways. The tribes' checkpoints on state and U.S. highways aren't legal, Seidel said.

Tribes: Checkpoints are staying

Frazier and Bear Runner have made it clear since Friday that they won't be removing the checkpoints, and they've received growing support.

Frazier said the tribe hasn't stopped any state or commercial functions with its checkpoints and has worked with county and city leaders to ensure all issues have been addressed. The virus doesn't differentiate between tribal members and non-members, and he is obligated to protect everyone on the reservation.

"We will not apologize for being an island of safety in a sea of uncertainty and death," Frazier stated.

Bear Runner alleged that Noem is forcing the tribe to drop its checkpoints to open the economy as she chose to do in the state a couple weeks ago. The tribe has the right to create its own laws, and the law is on the tribe's side, he said.

"The Oglala band is ready to stand against foreign intrusion into our daily lives," he said. "We will not sacrifice our loved ones for their greed."

BIA: Tribes need state's approval

The Bureau of Indian Affairs issued a memorandum on April 8 outlining that tribes can temporarily close or restrict access to tribe-owned roads during the COVID-19 pandemic, but tribes need to reach an agreement to temporarily close or restrict access to roads owned by other government entities that cross tribal land.

Bear Runner said on Saturday that he believes the Oglala is in full compliance with the BIA's memorandum because the tribe hasn't closed any state or U.S. highways. The checkpoints' purpose is to tell travelers about the shelter-in-place order and advise them to travel through the reservation without stopping. He said the BIA hasn't issued a letter or notice to the tribe stating that it is out of compliance with its checkpoints.

Bear Runner said he has notified the state about its border monitoring plan on several occasions, including an April 16 conference call with several state department leaders and the Governor's Office and a May 1 call with the state attorney general. No objections were raised. He said the first objection he heard about the checkpoints was Noem's May 8 letter threatening legal action, which he heard about via news stories and social media.

BIA Director Darryl LaCounte sent a letter to Frazier on April 24 stating that a checkpoint on U.S. Highway 212 was unauthorized and needed to be removed. The tribe needs to reach an agreement about the checkpoint on the highway, which is under the state's jurisdiction, according to the letter.

Frazier responded that the tribe has had regular discussions with Noem about the pandemic, and the state Department of Transportation gave assistance and input about setting up the checkpoint.

Noem said on April 24 she had talked with Frazier about ensuring emergency personnel, grocery store vendors and state transportation personnel can get through. She also said her administration has been speaking with the BIA and the U.S. Department of Justice about the situation. The state's role was facilitating information flow and ensuring the tribe's actions work for everyone, she said.

"The state of South Dakota does not have jurisdiction in this area, but the federal government does," she said.

During an April 27 press conference, Noem said the Cheyenne River tribe didn't consult with the state before it set up the checkpoints. She said she was sending a letter to the tribe to let them know the state is "willing to be part of the solution" on the checkpoints.

"We stand there ready to have conversations, but that is not something the tribe has engaged in," she said.

This article originally appeared on Sioux Falls Argus Leader: Coronavirus crisis: SD governor, tribes clash over highway checkpoints