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Law360 (June 24, 2020, 4:39 PM EDT ) The Cheyenne River Sioux Tribe on Tuesday accused a high-ranking Bureau of Indian Affairs staffer and other Trump administration officials of unlawfully threatening to take over its police department as part of ongoing efforts to stop the tribe's coronavirus highway checkpoints.
BIA Assistant Secretary Tara Sweeney threatened to seize a tribal law enforcement contract as retaliation for so-called health safety checkpoints on US Route 212 and South Dakota Highway 63, the Great Plains tribe claimed in a Tuesday complaint filed in D.C. federal court.
In doing so, Sweeney allegedly violated the Indian Self-Determination and Education Assistance Act as well as federal trust duties.
Threats to the police force and the tribe's overall COVID-19 response plan represent "unlawful infringement on tribal self-government and self-determination and put the tribe's members at risk of imminent harm," the tribe said in the complaint.
The federal suit is just the latest development in a tense standoff between Cheyenne River Sioux Chairman Harold Frazier and the state and federal government.
South Dakota Gov. Kristi Noem sought federal intervention in late May, after the tribe refused to remove checkpoints Frazier said were crucial for identifying symptomatic visitors and preventing a COVID-19 outbreak on the 10,000-resident reservation.
Tuesday's complaint recounts mounting tension through mid-June. The BIA allegedly investigated the tribe's checkpoints between May 20 and June 7. In a series of letters and phone calls, officials including Sweeney and White House Chief of Staff Mark Meadows then urged Frazier to dismantle the checkpoints, which he refused to do, according to the suit.
The federal government attempted to identify compliance issues to justify seizing the police department, according to the complaint, citing "technical human resources irregularities" and accusing checkpoint monitors of pretending to be police officers.
As a result, Frazier promised to "remove any patches and badges from the health safety checkpoint monitors to ensure that there was no further confusion as to their status," according to the complaint. Yet the tribe says the threats continued.
In a statement to Law360, a spokesperson for the BIA cited "serious deficiencies" in the tribe's police department, including people "falsely representing themselves as law enforcement." The agency "has an obligation to reassume policing functions if the tribe continues to operate its law enforcement program in violation of federal law," the spokesperson added.
Under the Indian Self-Determination and Education Assistance Act, the government cannot assume a tribe's law enforcement contract without finding an "immediate threat of imminent harm," the tribe claimed.
In this case, the tribe said, "unrelated tribal governmental functions in the tribe's operation of health safety checkpoints are irrelevant" to any alleged issues with its police force.
The BIA and White House have used the statute as a "battering ram instead of a vehicle to meet the United States' trust responsibility," added attorney Nikki Ducheneaux of Big Fire Law, counsel for the tribe, in a statement to Law360.
The Cheyenne River Sioux Tribe is seeking an injunction to prevent Sweeney from both forcing the checkpoints to close and assuming control of its police department, court records show.
As of June 23, South Dakota had confirmed 6,353 COVID-19 cases and 83 deaths, according to the complaint. The Cheyenne River Sioux Tribe has six reported cases and no deaths.
Native American health experts have been critical of Noem's response to the coronavirus pandemic, including her decision to eschew stay-at-home orders.
In a May 8 letter to the governor defending the checkpoints, Frazier wrote that "we will not apologize for being an island of safety in a sea of uncertainty and death."
Noem and Frazier did not immediately respond to requests for comment.
White House spokesperson Judd Deere did not address the tribe's lawsuit specifically, but said in a statement to Law360 that the administration has given "unprecedented support to the American Indian community, including $8 billion to address coronavirus preparedness, response and recovery through the CARES Act."
The Cheyenne River Sioux Tribe is represented by Nicole E. Ducheneaux, Rose M. Weckenmann and Judith A. Shapiro of Big Fire Law & Policy Group LLP.
Counsel information for the federal government was not immediately available.
The case is Cheyenne River Sioux Tribe v. President Donald Trump et al., case number 1:20-cv-01709, in the U.S. District Court for the District of Columbia.
--Additional reporting by Kelly Zegers. Editing by Bruce Goldman.
Update: This story has been updated with comment from the tribe's counsel, the BIA and the White House.
For a reprint of this article, please contact reprints@law360.com.
