The federal government has been trying to coerce and threaten the Cheyenne River Sioux Tribe ever since Gov. Kristi Noem asked for help stopping its COVID-19 checkpoints on state and federal highways, according to a lawsuit filed by the tribe.
“Since Governor Noem’s White House plea, all named defendants have worked in concert, abusing the power of the federal government, to coerce the tribe” to dismantle its checkpoints, the lawsuit says. “When that did not work, defendants pivoted to punishment: threatening” to take over tribal law enforcement, “imperiling tribal public safety as well as public health.”
“Such threatened governmental actions represent unlawful infringement on tribal self-government and self-determination and put the tribe’s members at risk of imminent harm,” the lawsuit says.
The complaint against President Donald Trump, White House officials, and leadership in the Department of Interior and Bureau of Indian Affairs was filed Tuesday at the federal court in Washington, D.C. It's asking a judge to prevent the federal government from taking over tribal law enforcement and shutting down the checkpoints because checkpoints aren't covered in the tribe's law enforcement contact and aren't one of the reasons that allow the BIA to rescind the agreement.
The lawsuit comes after Noem used multiple methods — reaching out to the tribes, threatening her own lawsuit, having the South Dakota attorney general investigate the checkpoints and finally asking the federal government for help — to make the Cheyenne River and Oglala Sioux tribes remove the checkpoints.
The government is “fishing” for excuses and trying to “pressure us any way they can,” Chairman Harold Frazier told the Journal on Tuesday.
The tribes have checkpoints that limit some drivers from passing through or stopping on the reservations in order to prevent the spread of COVID-19. The checkpoints are also used to inform travelers about COVID-19 policies on the reservations and collect information in case contact tracing is needed.
But Noem, a business group and a state senator told the Journal that the tribe doesn't always follow its own rules and has unfairly turned some drivers away.
Frazier and Julian Bear Runner, president of the Oglala Sioux Tribe, say tribal sovereignty and treaty rights allow them to set checkpoints up on reservation land and control who enters. The lawsuit, Frazier, Bear Runner and health experts all say tribal members are especially susceptible to contracting and dying of the virus due to lack of medical resources and socioeconomic health barriers.
The lawsuit says the checkpoints are working because the six cases on the Cheyenne River Reservation are all traced to entries identified through the checkpoints, not community spread. There have been zero deaths.
The BIA wrote in an April 8 memo that tribes have the right to close or restrict access on tribal roads. But it said tribes can do the same on state and federally owned roads “only on behalf of the affected road owner after the tribe has consulted and reached an agreement.”
Noem says the checkpoints on state and U.S. highways are illegal because the tribes have failed to consult and reach an agreement with the state, and they’re interfering with interstate commerce. She’s also said the only agreement she wants regarding those checkpoints is for them to be dismantled.
But the lawsuit says the checkpoints are legal because the U.S. Supreme Court has ruled that tribes can exercise civil jurisdiction over nonmembers regarding conduct that threatens health and welfare.
“It is difficult to think of an instance in which the conduct of nonmembers entering the reservation could pose more of a threat to the tribe’s health and welfare than it does during the present outbreak of COVID-19,” the lawsuit says. “Moreover, in any test of balancing interests, the tribe’s checkpoints pose only a minor inconvenience to non-Indian motorists when compared to the seriousness of the threat of COVID-19 to the reservation.”
What follows is what the lawsuit says happened behind the scenes between the tribe and the federal government since Noem asked the latter to intervene on May 20:
The BIA investigated the checkpoints between May 20 and June 7 in what the agency called a “fact-finding operation.”
DOI and BIA officials then called the tribe on June 7 to say it was considering cancelling the tribe’s 638 law enforcement contract — which allows the tribe to operate its own law enforcement with BIA money rather than rely on BIA agents — after alleging that the checkpoint workers were not properly trained and deputized.
BIA staff visited the reservation on June 9 to investigate the qualifications of the checkpoint monitors. Tribal workers told the BIA staff that the monitors weren't employed under the 638 contract so the BIA only reviewed documentation of the 638 law enforcement officers.
Frazier also received a phone call that day from Mark Meadows, White House chief of staff. Meadows said he has a “longstanding love" for Native American tribes and that federal intervention won't do Trump or the tribe "any good." But he ended by saying he “can’t have checkpoints” on federal roads before threatening the tribe’s coronavirus relief money if it uses the funds for checkpoints.
Tara Sweeney — the top Indian Affairs official at the DOI — sent a June 10 letter saying the tribe was breaking the 638 contract law by having checkpoint monitors present themselves as police officers as they prohibited access to federal and state highways. Sweeney said the checkpoints had to be dismantled by June 12 if the tribe wants to keep its contract.
Frazier responded to Sweeney that the monitors are not deputized as police officers or paid using the 638 funding. He said he would make sure they aren’t wearing any patches or badges that makes it seem like they are law enforcement, but he would not take down the checkpoints.
The special agent in charge of the BIA’s Office of Justice Serves in South Dakota then sent a June 12 letter threatening monetary penalties, the forcible dismantling of the checkpoints, and the end to the 638 contract if the tribe doesn’t take down its checkpoints. But Sweeney's deadline passed with no action taken by the tribe or federal government.
Frazier and other staff had a June 15 call with Meadows, Dr. Deborah Brix — the coronavirus response coordinator — and other White House officials. The head of the Indian Health Service and a representative form the Centers for Disease Control were also on the phone.
Brix said the checkpoints should be removed because South Dakota’s infection rate had already peaked and the tribe should instead focus on testing people who live on and visit the reservation. She did not acknowledge tribal barriers to health care nor the success of the tribe’s comprehensive COVID-19 prevention plan.
Frazier had another group call on June 17 when Sweeney said the government would provide additional coronavirus support if the tribe took down its checkpoints.
Finally, the head of the BIA’s Office of Justice Services said in a June 22 letter that the BIA would end the the 638 contract if the tribe doesn’t pull officers — not just checkpoint monitors — without proper background checks. The lawsuit said the DOI, not the tribe, is responsible for the background checks and the tribe has asked for help on the issue for several years.
The DOI is trying “to exploit technical flaws” in the background checks to rescind the 638 contract in order to make the checkpoints come down, the lawsuit says.
— Contact Arielle Zionts at email@example.com.