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South Dakota Governor Aims to Force Tribal Leaders to Ease Stay-at-Home Orders

Noem has refused to issue a statewide stay-at-home order.

Then-Rep. Kristi Noem listens during a House Ways and Means Committee hearing, May 24, 2017. The South Dakota governor has refused to issue a statewide stay-at-home order.

Leaders from the Oglala Sioux and Cheyenne River Sioux tribes in South Dakota sent firm rebuttals to Gov. Kristi Noem over the weekend, following her call for the two sovereign jurisdictions to shut down highway checkpoints that are being used to minimize the spread of coronavirus.

The checkpoints are stopping vehicles and asking drivers where they are coming from as well as where they plan on going. Commercial drivers and South Dakota residents are being allowed to travel on tribal lands, but non-state residents are only allowed entry onto the reservations if they can provide proof of tribal membership or proof that they live there. Non-state residents are also being banned from hunting or fishing on tribal lands.

The two tribes have instituted strong stay-at-home measures, unlike Noem, who has resisted the call to issue such an order for residents statewide. In response to the checkpoints, Noem demanded on Friday that the tribes cease enforcing all checkpoints, threatening a lawsuit against them if they refused.

“I request the Tribe immediately cease interfering or regulating traffic on U.S. and State Highways and remove all travel checkpoints,” Noem wrote in her letter to the Cheyenne River Sioux Tribe. “If the checkpoints are not removed within the next 48 hours, the State will take necessary legal action.”

Tribe Chairman Harold Frazier responded to Noem’s demands, citing Article 16 of the Ft. Laramie Treaty, which grants the Cheyenne River Sioux the right to regulate who can or cannot enter their jurisdictions.

“I absolutely agree that we need to work together during this time of crisis, however, you continue to interfere in our efforts to do what science and facts dictate seriously undermine our ability to protect everyone on the reservation,” Frazier wrote back. “Ignorant statements and fiery rhetoric encourage individuals already under stress from this situation to carry out irrational actions.”

“We have an inherent and sovereign right to protect the health of our people, and no one, man or woman, can dispute that right,” Julian Bear Runner, president of the Oglala Sioux Tribe, also said in a video on social media.

Oglala Sioux Tribe spokesman Chase Iron Eyes expanded upon what he hoped the tribe and the state could agree upon doing — and hearing exactly what legal rationale Noem has for making her demands in the first place.

“We’d be interested in sitting down (with Gov. Noem) to learn the legal, theoretical bases for (her) aggressive assertions,” he said. “They can sit down and talk with us like human beings, but they don’t do that. They threaten us with violence or legal charges.”

Within the South Dakota State Legislature, 17 state lawmakers have urged Noem not to follow through on her threats to the two tribes. They point out that her legal basis for doing so is thin, citing a 1990 ruling from the 8th Circuit Court of Appeals which “held that the State of South Dakota has no jurisdiction over the highways running through Indian lands in the state without tribal consent.”

Those lawmakers suggested that pursuing legal action would be a costly endeavor to taxpayers within the state.

The U.S. government has a long history of breaking treaties and violating tribal sovereignty.

Ensuring that coronavirus doesn’t spread on their land is a deep priority for both the Oglala Sioux and the Cheyenne River Sioux tribes. In the latter’s case, Frazier has pointed out that there is a significant lack of resources to deal with such a crisis — within the reservation, there is a single facility with a mere eight beds equipped to treat patients, for a tribe of around 11,000 individuals.

“The nearest health care, critical care is three hours away from where we live,” Frazier said to CNN.