By Emma Whitford

Law360 (September 9, 2020, 3:41 PM EDT ) A top Bureau of Indian Affairs staffer and Trump administration officials on Tuesday sought dismissal of a South Dakota tribe's lawsuit over alleged threats to its COVID-19 checkpoints, saying subsequent events rendered the alleged harm hypothetical.

The Cheyenne River Sioux Tribe accused federal officials in June of threatening an emergency takeover of its police department as retaliation for the tribe's virus highway checkpoints, which had been met with opposition from South Dakota Gov. Kristi Noem.

But the administration said Tuesday in D.C. federal court that a July letter from BIA Assistant Secretary Tara Sweeney clarifies that neither a takeover nor checkpoint shutdown is imminent, and simply lays out steps the tribe must take to avoid a possible law enforcement takeover at some future date.

This possibility of future action is not a "judiciable controversy" under Article III of the U.S. Constitution, the federal defendants said.

"At best," they wrote, "plaintiff challenges an entirely hypothetical possibility of a future reassumption action that has not yet occurred, and may never occur."

According to the tribe's complaint, Sweeney allegedly violated the Indian Self-Determination and Education Assistance Act when she threatened an imminent law enforcement takeover in a June 10 letter. The act allows tribes to enter federal contracts to administer programs — including law enforcement — that the federal government would otherwise manage directly.

In this instance, the BIA failed to identify the requisite "immediate threat of imminent harm" necessary for an emergency takeover of tribal law enforcement, the Cheyenne River Sioux said.

But the federal defendants argued Wednesday that a takeover was never imminent, noting that "the department has not acted on the assistant secretary's June 10 letter in the almost three months since it was sent."

The tribe also wrongly accused the federal government of breaching its trust responsibilities, according to the federal defendants.

To create a trust obligation the Indian Self-Determination and Education Assistance Act would have to impose a "specific ... obligation" on the government to manage tribal resources, the government said.

When in reality, the defendants said, the act "does just the opposite: It directs the government to transfer the management of federal programs and federal funds to Indian tribes."

The tribe's so-called health safety checkpoints were installed on U.S. Route 212 and South Dakota Highway 63, court records show. Noem sought federal intervention in May after the tribe refused to remove them.

The BIA's Office of Justice Services went on a "fact-finding mission" to the reservation that month, according to Tuesday's motion, and identified alleged deficiencies in law enforcement background checks and training that prompted Sweeney to request corrections.

Cheyenne River Sioux Chairman Harold Frazier has said the checkpoints are crucial for identifying symptomatic visitors and preventing a COVID-19 outbreak on the 10,000-resident reservation. 

Tribe spokesperson Remi Bald Eagle told Law360 on Wednesday that Frazier was not available for comment, adding that "the checkpoints are up and running 24/7." 

Also on Tuesday, federal defendants said President Donald Trump should be dismissed as a party in the suit, saying the complaint is "entirely devoid of any allegation of harm claimed to be attributable to the president's conduct."

The White House and Bureau of Indian Affairs declined to comment Wednesday. 

Nikki Ducheneaux of Big Fire Law & Policy Group LLP is representing the tribe, and told Law360 over email that "the United States has pivoted and shifted its demands repeatedly throughout this controversy — sometimes from one day to the next." 

"As a consequence, the Cheyenne River Sioux Tribe has found it difficult to rely on anything they say," Ducheneaux added. "The government's current claim is that its prior threats of imminent enforcement against the tribe are merely hypothetical. The tribe has yet to fully assess this information in the context of this lawsuit, but looks forward to both briefing it and discussing with the United States." 

There have been 151 confirmed cases of COVID-19 on the Cheyenne River Sioux reservation as of Tuesday, according to a post on the tribe's Facebook page. One member of the tribe has died.

South Dakota has reported 15,403 cases on its website to date, and 173 deaths.

The Cheyenne River Sioux Tribe is represented by Nicole E. Ducheneaux, Rose M. Weckenmann, Judith A. Shapiro and Calandra S. McCool of Big Fire Law & Policy Group LLP.

The government is represented by Kathryn C. Davis of the U.S. Department of Justice.

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.

--Editing by Stephen Berg.

Update: This story has been updated with comment from the tribe's counsel. 

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