Noem on Friday threatened to take the Oglala Sioux Tribe and the Cheyenne River Sioux Tribe to federal court if they don't remove the checkpoints. But the tribes said they won't budge, claiming they consulted with state officials and heard no objections before they set up travel checkpoints.
"Gov. Noem miscalculates our level of dedication to protect our most vulnerable people from crony capitalism's thrusts to force us to open our economy as they chose to do so," Oglala Sioux Tribe President Julian Bear Runner said Saturday in an address on Facebook Live.
He added later, "Your threats of legal action are not helpful and do not intimidate us."
In a letter to the tribes' leadership Friday, Noem, a Republican, said the checkpoints go against an April 8 memorandum from the U.S.Department of the Interior's Bureau of Indian Affairs. It said tribes can only restrict access on roads owned by others "after the tribe has consulted and reached an agreement addressing the parameters of the temporary road closure or restrictions."
The governor gave them 48 hours to clear the checkpoints, saying the state would otherwise take legal action.
A spokesperson for the governor did not immediately respond to a request for comment Monday.
The Oglala Sioux Tribe's president said the intent isn't to deny passage through the tribe's Pine Ridge Reservation at its checkpoints, which include a U.S. highway and three state routes. He said the tribe is in compliance with the memorandum.
The idea is to track individuals who enter the reservation, advise nonresidents considered to be partaking in nonessential travel to pass through without stopping and inform them of the tribe's shelter-in-place orders, he said.
According to the Cheyenne River Sioux Tribe's checkpoint policies, reservation residents are only allowed to travel for essential activities, such as a medical appointment, and must answer a questionnaire if they travel to or from a COVID-19 hot spot. Nonresidents are limited to traveling for only essential activities, according to a summary of the policies posted on social media.
The tribe has set up checkpoints where U.S. Highway 212 leads into the Cheyenne River Reservation.
"Many have been inconvenienced by the current situation, but the virus does not differentiate between members and non-members," Cheyenne River Sioux Tribe Chairman Harold Frazier said in a statement Friday. "It obligates us to protect everyone on the reservation regardless of political distinctions. We will not apologize for being an island of safety in a sea of uncertainty and death."
Both Bear Runner and Frazier said they are willing to work with the state moving forward, but indicated that they will not ease up on their measures to protect their reservations from the coronavirus.
State lawmakers backed the two tribes Saturday, saying the tribes have the ability to establish the checkpoints under the 1851 and 1868 Fort Laramie treaties and through various case law. They pointed to the Eight Circuit's 1990 holding that the state of South Dakota doesn't have jurisdiction over highways running through tribal lands without their consent, according to a letter by 17 state lawmakers to the governor.
"We think a better approach is communication rather than confrontation, cooperation rather than constitutional crisis and discussion rather than demands," they wrote.
The Cheyenne River Sioux Tribe received a letter from the BIA late last month, saying the state should have been consulted, which Noem echoed Friday. But Frazier said county and state officials had been addressed.
"In meeting with county commissioners, municipal, South Dakota Department of Transportation, Public schools and Federal agencies we have met the definition of consultation in both of our languages," he said in a statement Friday. In an April 26 statement, he said the state transportation department had inspected its checkpoints and offered technical advice on set up and operation.
Bear Runner, too, said that state officials and advisers discussed the checkpoint plan with Oglala Sioux Tribe representatives as recently as May 1 and raised no objections.
Representatives for the tribes could not immediately be reached for further comment Monday. The BIA did not immediately respond to a request for comment.
--Editing by Abbie Sarfo.
For a reprint of this article, please contact reprints@law360.com.