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State says it will sue tribes if they don’t stop COVID-19 checkpoints
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State says it will sue tribes if they don’t stop COVID-19 checkpoints

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Checkpoint workers on the Cheyenne River Reservation pose with Chairman Harold Frazier (second-to-right).

The governor’s office says it will sue the Oglala and Cheyenne River Sioux tribes if they don’t take down their COVID-19 prevention checkpoints on state and federal highways.

These checkpoints “are not legal, and if they don’t come down, the state will take the matter to federal court,” Maggie Seidel, senior adviser to Gov. Kristi Noem, said in a Sunday email.

Noem said in a Friday news release and letters to the tribes that the state will take “necessary legal action,” if the checkpoints don’t come down in the next 48 hours but she did not specify what she meant by “legal action.”

Seidel said the state needs the tribes to allow “unobstructed access to state and U.S. highways for thru-traffic” and access for property owners and lessors; state personnel and contractors; and people making essential deliveries. She told the Journal that the state has received complaints from all of these groups.

Requiring “unobstructed access” to state and federal highways on reservations would prevent checkpoints on those roads since checkpoints, by their nature, require drivers to be stopped and questioned before they’re allowed to pass through or told to turn around.

“The key here is that tribes are letting tribal members come and go as they please – the same is not true for non-tribal members,” Seidel said in her email.

However the Oglala Sioux ordinance and descriptions of the Cheyenne River Sioux policy distinguish between residents and non-residents, not tribal members and non members.

Tribal members gathered Sunday at checkpoints on the Pine Ridge and Cheyenne River reservations in solidarity with border workers and their leaders who say they have no plan to stop the checkpoints.

“We will not apologize for being an island of safety in a sea of uncertainty and death,” Harold Frazier, chairman of the Cheyenne River Sioux Tribe said in a Friday news release. “Many have been inconvenienced by the current situation but the virus does not differentiate between members and non-members.”

“We demand you to respect our sovereignty,” Julian Bear Runner, president of the Oglala Sioux Tribe, wrote to Noem on Friday. “Your threats of legal action are not helpful and do not intimidate us.”

Both leaders cited the 1868 Ft. Laramie Treaty which says non-Native Americans can’t live on, occupy or pass through reservations without tribal consent.

Noem previously said the state does not have jurisdiction over this issue.

“The state of South Dakota does not have jurisdiction in this area but the federal government does,” she said during an April 24 news conference when asked about the checkpoints on the Cheyenne River Sioux Reservation.

“Whatever they want to do on the reservation the state has no objection to, Seidel told the Journal when asked about Noem’s previous comment. “We’re talking about blocking state and U.S. highways.”

The checkpoints

The Bureau of Indian Affairs wrote in an April 8 memo that tribes across the country have set up temporary roadblocks or checkpoints as a means to stop or limit travel in order to prevent the spread of the coronavirus.

Leaders with the Oglala and Cheyenne River Sioux tribes say the state has not taken enough precautions against COVID-19 and the checkpoints are meant to protect everyone who lives on the reservations. They say tribal members are especially susceptible to contracting and dying of the virus due to lack of medical resources and socioeconomic health barriers.

“I could see (coronavirus) just potentially coming in and spreading like wildfire,” Frazier previously told the Journal.

Bear Runner told Noem that South Dakota’s response to COVID-19 is “ineffective.”

“We are a vulnerable population” and created checkpoints “to save the lives of our people, including the lives of our elderly tribal members, without whom we cannot pass on our language, culture and traditions,” he wrote.

Checkpoints on both reservations are staffed by tribal members who ask drivers where they are coming from and going, and educate them about the tribes' COVID-19 policies. The Cheyenne River Sioux Tribe also asks some drivers to answer screening questions to help with contact tracing, according to its COVID-19 website.

Frazier said that checkpoints on the Cheyenne River Reservation are not blocking any state or commercial drivers. Bear Runner wrote that non-residents with non-essential business can’t visit the Pine Ridge Reservation. But he said everyone is allowed to pass through.

But Seidel said the governor’s office has received complaints from individual drivers plus associations representing industries with drivers who aren’t being allowed to pass through the reservations.

The checkpoints have been “extremely disruptive” and the state fears things will turn violent, she said. “Things have already gotten (verbally) hostile” and this is “uncharted territory,” Seidel said when asked why the state is afraid of violence.

Consultation debate

The BIA memo says tribes have the right to close or restrict access on tribal-owned lands.

“The state has no objection to that,” Seidel said in her email.

But the BIA says tribes can only do the same on state or federally-owned highways “only on behalf of the affected road owner after the the tribe has consulted and reached an agreement addressing the parameters of the temporary road closure or restrictions.”

Frazier and Bear Runner both say they’ve had extensive consultations while Seidel says there’s been neither consultation nor any agreements.

Bear Runner wrote that he and the police chief had an April 16 phone call with one of her senior advisers plus the secretaries of transportation, public safety and tribal relations. He said the tribe’s attorney general spoke with the state attorney general on May 1.

“We have heard no objection” from state officials until Friday, Bear Runner said, adding that he learned of Noem’s letter through media reports, not from her letter or office.

Frazier said the tribe has consulted with federal agencies, the state Department of Transportation, and county and municipal leaders. And Noem said during her April 24 news conference that she and Frazier have spoken and texted about the checkpoints.

Seidel said there’s been “many hours of communication behind the scenes” between the tribes, federal officials, and the offices of the governor, attorney general and tribal relations.

But “it is not accurate to claim consultation has taken place – and certainly no agreement has been reached, she said.

Communication is not synonymous with consultation, Seidel told the Journal.

“We’re not going to negotiate through the press” but we’re happy to work with tribal leaders, she said when asked what consultation means to Gov. Noem.

Lawmakers respond

A group of 17 state lawmakers — 16 Democrats and one Republican — told Noem they’re against her request, according to a May 9 letter obtained by the West River Eagle.

The lawmakers — who represent districts with tribal members, land and governments — said Noem could have reached out to them to serve as liaisons between the state and tribes before issuing her ultimatum.

The lawmakers say the 1851 and 1868 Ft. Laramie treaties, state and federal law, and court rulings allow the tribes to regulate all traffic entering their reservations. They specifically cited a 1990 federal appeals court decision that ruled “the State of South Dakota has no jurisdiction over the highways running through Indian lands in the state.”

But Seidel said the ruling is not relevant to the checkpoint issue.

“We are not talking about civil or criminal jurisdiction on the reservations,” she said. “We are talking about the ability of the tribes to interrupt the flow of non-tribal traffic on state and U.S. highways.”

The lawmakers told Noem that they recommend she sets up a meeting with Frazier, Bear Runner and legislative leaders “to negotiate a resolution that reflects our combined goal of keeping all people healthy and safe."

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

— Contact Arielle Zionts at arielle.zionts@rapidcityjournal.com

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