South Dakota's governor threatened to take two tribes to court over coronavirus checkpoints. Here's what to know

Despite South Dakota Gov. Kristi Noem requesting the Cheyenne River Sioux Tribe take down its coronavirus checkpoints, tribe Chairman Harold Frazier told CNN they're staying put. Sara Sidner has more.

Posted: May 11, 2020 6:01 PM
Updated: May 11, 2020 6:01 PM

A group of 17 South Dakota legislators urged the state's governor to try to reach a compromise with two tribes that have added checkpoints to help control the spread of the coronavirus.

The lawmakers said in a letter dated Saturday that they did "not wish to be party of another lawsuit that will ultimately cost the people of South Dakota more money.

"We wish to work with all parties involved for a reasonable, legal, and appropriate solution that addresses the concerns of all sovereigns involved."

Instead, the lawmakers asked the governor to meet with members of both tribes "to negotiate a resolution that reflects our combined goal of keeping all people healthy and safe."

Tribe leaders say the checkpoints were put in place to control the spread of the virus and keep their community safe. But South Dakota Gov. Kristi Noem's office said Sunday checkpoints on US and state highways are illegal and threatened to take the matter to federal court if they aren't removed.

Here's what you need to know:

Who put up the checkpoints?

The Oglala Sioux and the Cheyenne River Sioux tribes set up checkpoints to regulate who comes in and goes through their reservations.

Both tribes have also issued strict stay-at-home orders -- while Noem has not done so for the state -- and curfews for their communities.

The checkpoints, established to help control the spread of the coronavirus, are the reservations' best tool to protect themselves against the illness, Cheyenne River Sioux Tribe Chairman Harold Frazier told CNN. He said reservations aren't equipped to deal with a coronavirus outbreak.

"The nearest health care, critical care is three hours away from where we live," Frazier said. The tribe operates an eight-bed facility on the reservation -- that is home to 12,000 people -- and no intensive care unit (ICU), Frazier said.

About 198 Native Americans have been infected in the state so far, according to state data. At least 3,517 people in South Dakota have tested positive for the virus and at least 34 have died, according to Johns Hopkins University's tally of cases.

How do the checkpoints work?

Reservation residents may travel within South Dakota to areas the state hasn't deemed as a hot spot for the virus if it's for an essential activity, according to Cheyenne River Sioux Tribe checkpoint policies posted on social media.

Those activities include medical appointments or getting supplies that may not be available on the reservation.

But residents must complete a health questionnaire every time they go through a checkpoint, both when they leave and when they return, according to the policies.

As for South Dakota residents who don't live on the reservation, they're only allowed there if they're not coming from a hot spot and if they are there for an essential activity. Those individuals also must complete a health questionnaire.

For those coming from a hot spot, they can only go to the reservation for essential activities -- and can only do so after obtaining a travel permit, available on the tribe's website.

How did the governor respond?

In response to the checkpoints that were set up in early April, the governor published a statement Friday to the tribes giving them 48 hours to remove them.

Otherwise, Noem warned in her Friday letter, "the State will take necessary legal action."

"We are strongest when we work together; this includes our battle against COVID-19," Noem said in her statement. "I request that the tribes immediately cease interfering with or regulating traffic on US and State Highways and remove all travel checkpoints."

But the tribes refused to budge, and the governor's office released another update to that statement on Sunday.

Who has jurisdiction?

In their letter to the governor, the lawmakers said the state did not have jurisdiction in the matter, citing the 1851 and 1868 Fort Laramie Treaties and a 1990 ruling by the 8th Circuit Court of Appeals, which they said "held that the State of South Dakota has no jurisdiction over the highways running through Indian lands in the state without tribal consent."

The 1851 agreement, among other things, pledged peace between tribes as well as recognized the government's right to create roads and posts in parts of tribes' territories.

The 1868 document recognized the Black Hills as part of the Great Sioux reservation and established it would be exclusively used by the tribe, according to the National Archives.

In an updated letter published Sunday, the governor's office said the checkpoints on US and state highways "are not legal" and if the tribes don't take them down, "the state will take the matter to Federal court."

That letter, written by the governor's policy director, Maggie Seidel, points to a memorandum pertaining to road closures on tribal lands issued by the US Department of the Interior's Bureau of Indian Affairs, written on April 8.

The memorandum states tribes "may restrict road use or close" tribally-owned roads temporarily without first consulting with the Secretary of the Interior or private landowners under conditions involving "immediate safety or life-threatening situations," like the pandemic.

But as far as roads owned by others, such as state governments, the memorandum states tribes can only restrict access "on behalf of the affected road owner after the tribe has consulted and reached an agreement addressing the parameters of the temporary road closure or restrictions."

Seidel says no consultation has taken place and no agreement was reached.

"The memorandum makes it perfectly clear it is unlawful to interrupt the flow of traffic on these roads," Seidel added.

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