Dispute over South Dakota tribal checkpoints escalates after Gov. Kristi Noem seeks federal help

"The time has come for formal federal action," Noem, a Republican, wrote in her letter to President Donald Trump.

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By Erik Ortiz

South Dakota Gov. Kristi Noem appealed to the Trump administration for help Wednesday in resolving a dispute over roadside checkpoints set up by two Native American tribes trying to curb the spread of the coronavirus, the latest move in a clash over which government entity has the ultimate legal authority.

Noem, a Republican who assumed office last year, wrote in a letter to President Donald Trump that the issue is "not a matter of tribal sovereignty" because South Dakota has rights allowing residents and travelers to access the roadways, and that the federal government has "an interest in interstate commerce." She also argued that the checkpoints do little to stop the coronavirus from spreading, and if anything, they increase the risk of transmission because people are exposing themselves when they're forced to stop.

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"The time has come for formal federal action," Noem wrote, sending copies to the Department of Justice, the Bureau of Indian Affairs and South Dakota's congressional members.

What form the federal involvement could look like is unclear. The White House, the Justice Department and others now involved did not immediately comment Thursday about the letter.

Noem, who has previously threatened legal action against the Cheyenne River Sioux and the Oglala Sioux tribes, wrote that as an alternative to litigation, she'd like for federal assistance in shutting down the "unlawful" checkpoints and requiring the Cheyenne River Sioux, specifically, to comply with a Bureau of Indian Affairs memo on the matter.

Noem told reporters Wednesday that affidavits and video recordings collected by the state attorney general's office were provided to federal authorities to pursue.

"This isn't about taking sides. This is just about upholding the law," Noem said, adding, "We are asking for the help, and hope the partnership of the White House can be used to encourage" the tribes to comply.

The checkpoints have been up since April and involve two of South Dakota's largest reservations. Noem had warned the tribes to take down the checkpoints on state and federal highways within 48 hours or face court action.

Harold Frazier, the chairman of the Cheyenne River Sioux Tribe, said on MSNBC last week in response to Noem's ultimatum that "we have every legal right to do what we're doing" and that such a precautionary measure is warranted because the tribe has insufficient medical resources to combat COVID-19, the disease caused by the coronavirus. Those operating the checkpoints are deputized under the tribal government, which says they are determining if the vehicle is on essential business — those coming from a coronavirus "hot spot" and not having essential travel have been turned away.

COVID-19 has inundated Native American communities more than others. The Navajo Nation, for instance, now has the highest infection rate per capita in the country, according to Johns Hopkins University data, surpassing New York and New Jersey.

"We feel like monitoring our borders and tracking everybody that's going through or attempting to go through will help us if this virus ever comes here," Frazier said.

The Cheyenne River Sioux Tribe, which has about 8,000 members on its reservation, is located within two counties. Those counties have seen a single positive case of COVID-19 between them.

Meanwhile, the Oglala Sioux, which has more than 19,000 members living on the Pine Ridge Indian reservation, has seen 14 positive cases of COVID-19 in Oglala Lakota County. A lockdown was ordered on the reservation over three days last week after a positive case was confirmed there.

A third tribe in South Dakota, the Rosebud Sioux, said in a Facebook post Monday that it has also set up driver checkpoints, although "commercial traffic will be allowed to proceed through the checkpoints on to their destinations without issue." Noem has not mentioned the tribe in her public comments.

The governor has said her office has fielded complaints from drivers who say they were on emergency or essential business and were rerouted. She had sought to come up with a compromise with tribes allowing for checkpoints on tribal roads, but not state and federal ones.

In a letter to Noem last week, Frazier said the tribe would consider her request — but now her bid for White House involvement has thrown the tribes for a loop.

"We were working on that, and we told her that we would," Remi Bald Eagle, a Cheyenne River Sioux Tribe spokesman, told Indian Country Today. "Next thing you know, she runs off and does something like this, so it's a little confusing."

The Oglala Sioux, which had said it was also considering Noem's earlier plan, responded in a statement to her White House letter that "the governor is missing an opportunity to set a positive example of executive leadership."

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"Governor Noem's decision to escalate the tension right now over checkpoints doesn't make sense from a public health perspective," Chase Iron Eyes, a spokesman for Oglala Sioux President Julian Bear Runner and lead counsel for the Lakota People's Law Project, said.

"We're permitting people to pass through our reservations — we're screening people, according to the best advice from medical experts, not preventing travel," Iron Eyes said, adding that "99.9 percent of drivers are allowed to pass through after answering a few questions."

A bipartisan group of 17 state legislators has cautioned Noem against waging a legal battle with the tribes, writing that "the State of South Dakota [does not] have the authority to enforce State law within boundaries of a Reservation," pointing to the Fort Laramie Treaties of 1851 and 1868 that gave tribes jurisdictional powers and a 1990 appeals court ruling that says the state doesn't have control over roadways that cut through Native lands without tribal consent.

"It is obvious that Gov. Noem knows little about the limited authority she and the state government have in Indian country," Gary Pitchlynn, an attorney and law professor at the University of Oklahoma, told NBC News. "Any action that might come from the federal government would probably be tied up in litigation well beyond the immediate COVID threat, and there is a good chance that further damage will be done to tribal/state relations regardless of the ultimate outcome."

He added that while South Dakota might not normally have "the clout" to compel the Justice Department to get involved in such a matter, the Trump administration is not viewed as being "friendly to minorities in general, or tribes in particular."

Tribal law expert Richard Monette, a law professor at the University of Wisconsin-Madison, said the Supreme Court's line of cases have supported the concept of tribal sovereignty, but this issue could quickly unravel should Trump decide to get involved in favor of Noem and compel federal law enforcement to descend on the checkpoints.

The arrests of pipeline protesters by armed soldiers and police four years ago in North Dakota remain a vivid example of extreme intervention, Monette said.

An argument could be made by the Trump administration that Noem, the state's highest politician, has jurisdiction not only over non-Native Americans but Native citizens as well since they have the right to participate in state elections, Monette added.

This case, no matter how it progresses, he said, represents the complexities associated with tribal rights and culture and how the federal government has "tried to shoehorn" tribes into an Anglo American system of justice and authority.

What happens next, he said, "will depend on if cooler heads prevail."