Photo: Rosebud Sioux Tribe Communications on Facebook

South Dakota Gov. Kristi Noem has escalated her fight with two Native American tribes over highway checkpoints. Earlier this month, Noem threatened to sue the tribes to remove checkpoints they had set up on state and federal highways to prevent the spread of COVID-19 on their reservations. Yesterday, instead of suing, Noem sent a letter to Donald Trump, the Justice Department, the Interior Department (home of the Bureau of Indian Affairs), and the members of her state's congressional delegation asking for help in making the tribes respect her authoriteh. Throughout the pandemic, Noem has refused to let municipal governments issue stay at home orders and other public health measures she didn't like, so clearly, the tribes' defiance couldn't be allowed to stand, either.

The checkpoints were put in place on a number of state and federal roads in April by the Oglala Sioux and Cheyenne River Sioux Tribes to help enforce their own public health measures. (No limited-access interstate highways are affected, just surface roads where anyone might stop for gas or lunch and so on.) The tribes argue that 19th Century federal treaties give tribal leaders sole authority to regulate who can and cannot come onto their land. The tribes, understandably, want to avoid a horrific outbreak like the one that has hit the Navajo Nation in Arizona, New Mexico, and Utah, which now has the highest per capita rate of infection in the US.

In her May 8 ultimatum to the tribes, Noem waved around an April memorandum from the Bureau of Indian Affairs saying the tribes can only restrict traffic on federal and state highways after reaching an agreement with the state. Noem gave the tribes 48 hours to remove the checkpoints or she'd sue them in federal court.

And now, instead of a lawsuit, Noem is asking Donald Trump to help her close the checkpoints. We are neither an attorney nor an expert on tribal sovereignty, but that sure suggests to us that Noem has reassessed whether a lawsuit would go her way. That, or she simply prefers to let Donald Trump know she'd welcome his help, and perhaps some gratuitous "Pocahontas" slurs, which seems Trump's sole frame of reference for all of Native America.


Cheyenne River Sioux Tribe spokesperson Remi Bald Eagle told Indian Country Today that since Noem's letter was sent only to federal officials and not to the tribe, the tribe would "just have to wait and see what the feds do. [...] We are going to continue to do our checkpoints until they're no longer a necessary part of our emergency response plan."

Bald Eagle said Noem had sent a plan to the tribe proposing solutions to the impasse, and the tribe had been considering its feasibility when Noem escalated the fight by going to the Trump administration.

"We were working on that, and we told her that we would," Bald Eagle said. "Next thing you know, she runs off and does something like this, so it's a little confusing."

Noem told South Dakota Public Radio Monday that she and the tribes were still working to reach a solution, and that "There is no plans [sic] today or in the near future to file a lawsuit, although we are taking legal action." Noem's letter to Trump notes that she had directed state Attorney General Jason Ravnsborg to investigate the checkpoints.

Noem's proposal, according to the Sioux Falls Argus Leader, pretty much involved the tribes doing exactly what Noem has been calling for from the start. It would

remove checkpoints from state and federal highways and keep them on Bureau of Indian Affairs roads. Cheyenne River [Chairman] Harold Frazier and Oglala President Julian Bear Runner said they would consider the plan, but hadn't given Noem a formal decision as of Tuesday.

In her letter to Trump, posted to the state's COVID-19 website, Noem claims that the tribes are basically doing kidnapping or something; she claims that "interrogations of travelers" are being conducted, and that since some travelers may be turned away based on their answers at the checkpoints, the tribes are imposing an illegal "blockade" of state and federal roads.

Noem also insists this ain't about tribal sovereignty, no, no, no:

This, however, is not simply a matter between a sovereign state and sovereign tribal government. Rather, the federal government has an interest in interstate commerce, transportation of critical infrastructure goods, provision of services from critical infrastructure industries, and the uniform treatment of all travelers on a non-discriminatory basis.

The letter summarizes her plan to only let the tribes regulate tribal roads, and says her request for the administration's intervention is a "final alternative to formal litigation." Noem says the tribes' claims of sovereignty based on treaty rights are invalid, because supposedly the tribes waived those rights when the roads were built in the last century. (She cites the easements from the 1950s to 1970s as support.)

But the tribes shouldn't worry, she insists, because she too cares about controlling the pandemic, although we aren't sure we buy her "science" here:

Based on the science we have today, we cannot stop the COVID-19 virus. Because of this, our efforts have focused on slowing the spread consistent with available hospital capacity and medical supplies. The CRST [Cheyenne River Sioux Tribe] checkpoints/blockades actually increase the risk of speeding up the transmission of the COVID-19 virus to the reservations and increasing the frequency of exposure as tribal members interact with travelers that would otherwise pass through the reservation. Accordingly, there is no legal nor scientific basis for the CRST checkpoints/blockades.

That's fun: Brief interactions at checkpoints will expose tribe members more than allowing unrestricted traffic onto the reservation? We want to see the scientific report on that.

As thing stand, the number of cases on the two reservations seem fairly low, as Indian Country Today reports:

Out of the 4,177 positive cases reported in South Dakota as of May 20, 310 are Native American, according to the state health agency. Oglala Lakota County, home of the Pine Ridge Indian reservation, has reported 14 positive cases and one recovered case. The Cheyenne River Sioux Tribe sits in Dewey and Zeibach counties, and both combine to have a single positive case.

Cheyenne River tribal chair Frazier has said the roadblocks are essential to making sure the tribe's health center, which has only eight beds and no ICU facilities, isn't overwhelmed. The nearest hospital able to provide the critical care needed for COVID-19 is three hours away from the reservation.

If this does end up going to court, the ACLU of South Dakota has already announced that it backs the tribes' position and that it believes their sovereignty claims are valid, although that Monday statement wasn't (yet) a formal offer of legal help. A bipartisan group of South Dakota legislators urged Noem earlier this month not to incur the costs of a federal lawsuit, and emphasized that the state has no jurisdiction over tribal affairs.

And if Noem wants to pick a fight over checkpoints, she'll need to expand her enemies list, since last week, a third tribe, the Rosebud Sioux, announced it too was setting up highway checkpoints as part of its extension of the public health lockdown. Earlier this week, the tribe said five checkpoints were in place. Noem's letter doesn't mention the Rosebud Sioux Tribe's actions, but she'll probably get around to it.

But Noem loves playing up her loyalty to Trump, and seems to be calculating that a fight with the tribes is good politics, so expect this stupid posturing to continue.

[Indian Country Today / Letter to the White House / Argus Leader / Photo: Rosebud Sioux Tribe Communications on Facebook]

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Doktor Zoom

Doktor Zoom's real name is Marty Kelley, and he lives in the wilds of Boise, Idaho. He is not a medical doctor, but does have a real PhD in Rhetoric. You should definitely donate some money to this little mommyblog where he has finally found acceptance and cat pictures. He is on maternity leave until 2033. Here is his Twitter, also. His quest to avoid prolixity is not going so great.

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