The Cheyenne River Sioux and Oglala Sioux Tribes have stood defiantly against the governor's legal threats in recent weeks to end the checkpoints, stressing that they are necessary to protect their members and that tribal sovereignty allows for them. Now, Noem is looking for guidance from the federal government, saying her attempts at finding a fix with the tribes haven't worked.
"Despite weeks of attempts to start a conversation and find a solution between me, [state Secretary of Tribal Relations David Flute] and many others to resolve this matter informally, finding a solution that would respect tribal sovereignty, also state sovereignty and federal law, the tribes have continued to maintain these checkpoints on U.S. and state highways," Noem said during a daily briefing Wednesday.
Noem on Wednesday sent affidavits about and video recordings of the checkpoints to the White House, U.S. Department of Justice, U.S. Department of the Interior and South Dakota members of Congress asking for their "persistence in resolving this situation." The materials were produced in an ongoing investigation by the South Dakota Attorney General's office.
"COVID-19 testing does not occur at these checkpoints, and for some travelers these checkpoints are ultimately a blockade," the governor wrote the president. She referenced an April 8 Bureau of Indian Affairs memo that 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."
Noem, a Republican, is among governors who have rejected statewide stay-at-home orders amid the coronavirus pandemic. As of Thursday, South Dakota has seen a total 4,250 confirmed COVID-19 cases and 48 deaths, according to the state's health department.
The governor told the tribes in letters on May 8 to remove all checkpoints on U.S. and state highways to comply with the law and said she had suggested a compromise about a week ago. In response to questions about sovereignty, she pointed to right-of-ways for U.S. 212 and three state highways.
"These are easements that the tribe did agree to and the legal documentation is there showing that these checkpoints cannot lawfully be on U.S. and state highways," Noem said.
Remi Bald Eagle, a spokesman for the Cheyenne River Sioux Tribe, said the governor's office has not directly reached out to Cheyenne River Sioux Tribe Chairman Harold Frazier this week about her communications with the federal government.
Representatives for the governor's office, the White House and the Oglala Sioux Tribe did not immediately respond to requests for comment Thursday.
The tribes' leadership has maintained that state officials were consulted and aware of the checkpoints in compliance with the BIA memorandum. Both tribes have advised travel for only essential activities amid the pandemic.
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 through the reservation for only essential activities, according to a summary of the policies posted on social media.
Frazier said in a May 8 statement that the tribe "will not apologize for being an island of safety in a sea of uncertainty and death."
Oglala River Sioux Tribe President Julian Bear Runner said in a May 9 address that the intent of the checkpoints isn't to deny passage through its Pine Ridge Reservations. The tribe's leadership had ordered an emergency 72-hour lockdown on May 12 after two residents tested positive for the virus. The point was to track individuals who enter the reservation, as well as 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.
Proponents of the tribes' checkpoints have surfaced as the dispute ramped up, including South Dakota state lawmakers and the American Civil Liberties Union of South Dakota, saying the checkpoints are supported by tribal sovereignty under treaties the tribes have with the federal government.
"But even with an obligation to uphold all treaties, the government's track record is dismal," Candi Brings Plenty, the ACLU of South Dakota's indigenous justice organizer, said in a Monday statement. "So for the tribes, these checkpoints are essential to protecting the health of the people on the reservations. Threatening costly litigation against the tribes isn't the answer. Good relationships and solid communication is."
--Editing by Orlando Lorenzo.
For a reprint of this article, please contact reprints@law360.com.