Will she or won’t she?
Though she had not yet filed the “legal action” she promised last week, South Dakota Gov. Kristi Noem on Monday escalated her ongoing dispute with two Sioux tribes that set up checkpoints along state and U.S. highways to prevent the spread of the novel coronavirus on tribal land.
Hours later, one the tribes confirmed its first two cases of the virus on its reservation.
“We have been having conversations for over a month with our tribes, and the checkpoints continue to be an issue with the folks on the ground,” Noem told reporters during a press conference.
The governor claimed that she had received reports of ranchers unable to get to their cattle, landowners unable to reach their property, and emergency services unable to pass through the checkpoints.
“We need people just driving through the area to continue to be able to do so,” Noem said. “Those deliveries of gas, medical supplies, and food are important.”
On Friday, her office had issued a statement “demanding,” in separate letters, that the Oglala Sioux Tribe and Cheyenne River Sioux Tribe take down their checkpoints within 48 hours.
Both refused. And hours after the governor’s press conference on Monday, the Oglala Sioux Tribe ordered a reservation-wide shutdown after learning that two member-residents had tested positive for the virus, according to Indianz.com.
“It’s really scary for us as the task force to have to announce this, but we do have to verify what’s already being published on social media—that our reservation does have two confirmed cases, positive cases,” Karin Eagle, media relations specialist for the tribe, said Monday night. “Keep these two people in your prayers and in your thoughts.”
The ongoing beef between Noem and the tribes represented the latest case of a Republican governor seeking to overrule state residents who fear, with plenty of evidence, that officials are moving too aggressively to race back to pre-COVID-19 normalcy—and costing lives along the way.
But while the fight was ostensibly a legal and public health one, it also touched on sensitive issues of sovereignty affecting communities that have faced centuries of neglect and oppression. Critics suggested Noem risked allowing her rising profile as an anti-lockdown firebrand to imperil Native Americans’ health.
“They have a sovereign right and duty to protect their population,” Lawrence Gostin, who directs the O’Neill Institute for National and Global Health Law at Georgetown University, said of the Sioux tribes. “They’re highly vulnerable, so I think that the science and the evidence are all on their side and shouldn’t be at the mercy of their governor, who appears to care more about reopening than she does about the public’s health and safety.”
Chairman Harold Frazier, of the Cheyenne River Sioux Tribe, previously declined Noem’s request to take down the checkpoints, arguing in a statement that the tribe “has not stopped any state or commercial functions.”
“Many have been inconvenienced by the current situation, but the virus does not differentiate between members and non-members,” Frazier added. “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.”
In the case of the Cheyenne River Sioux, the checkpoints allow for reservation residents to travel within South Dakota, but only to areas not deemed COVID-19 hot spots. Even then, they can only do so for essential services, and must complete a health questionnaire upon returning. Meanwhile, South Dakota residents who don't live on the reservation are allowed inside only for essential services, and only if they are not coming from a hot spot. They also must complete a questionnaire, CNN has reported.
Chase Iron Eyes, a spokesman for Oglala Sioux President Julian Bear Runner, previously told the Associated Press that he expected his tribe to defend its rights as a sovereign nation to keep out threats to their health.
There were, as of Monday afternoon, 3,517 COVID-19 infections and 34 deaths in South Dakota, and Noem said during the Monday press briefing that a recent targeted mass-testing initiative in the state focused on hot spots found a 24 percent positive infection rate.
In justifying her decisions, her office has repeatedly cited a memorandum from the Department of the Interior’s Bureau of Indian Affairs, issued last month, calling on tribes to get permission from state authorities before closing or restricting travel on state or U.S. Highways. But the state’s Department of Transportation consulted both tribes on how to safely and effectively set up the checkpoints, according to Cheyenne River Sioux Tribe leadership. (The checkpoints were in place on April 3—before the federal memorandum was issued on April 8.)
Before the dispute, Noem had embraced her standing as one of the few governors in the country to avoid a statewide stay-at-home order. During the pandemic, she has appeared on the programs of Fox News heavyweights Sean Hannity and Laura Ingraham, where she found a rapturous reception to her approach from the right.
The growing notoriety for the first-term governor, who was elected in the 2018 midterm elections after serving in the U.S. House, was not lost on people in her state. One mayor told The Daily Beast last month she felt her state’s GOP governor was “enjoying the attention, I think.”
States like South Dakota, North Dakota and Wyoming have been among those loath to issue the statewide stay at home restrictions imposed by even their Republican peers in other parts of the country. Noem’s reticence provoked the South Dakota State Medical Association to send her a letter in early April to persuade her to issue a shelter-in-place order, to no avail. The organization declined to comment Monday about the dispute with the Sioux tribes.
In a statement on Sunday, Maggie Seidel, a senior adviser and policy director for Gov. Noem’s office, said that Friday’s announcement came “after many hours of communication behind the scenes.”
“Tribes are well within their rights to manage the flow of traffic on tribal roads, and the state has no objection to that,“ Seidel said. “The key here is that tribes are letting tribal members come and go as they please—the same is not true for non-tribal members.”
When asked on Monday why she had threatened legal action before meeting with tribal leaders in person, Noem emphasized that she hoped to “come to a resolution” on the checkpoint issue but that she “will be taking action so that we can get some clarity as to how to move forward.” She did not specify further what “taking action” meant, and her office did not reply to a request for comment Monday asking for a response to public health experts critical of the legal threat.
Noem also denied that the dispute has caused a divide between her administration and the tribes.
But a bipartisan group of South Dakota legislators wrote a letter to Noem on Friday defending the reservations’ rights to their imposed checkpoints and contesting the governor’s claim that the checkpoints are illegal by state law.
“These jurisdictional powers were enshrined in both the 1851 and 1868 Ft. Laramie Treaties and have been reaffirmed numerous times through case law, Congress, and Supreme Court Rulings,” said the letter, signed by state senators and representatives, which also claimed that the state does not have the authority to enforce state law within the boundaries of a reservation. “We do not wish to be part of another lawsuit that will ultimately cost the people of South Dakota more money.”
“As elected representatives of districts that include tribal people, land, and governments we could have helped facilitate conversations and given your office unique insight as to the history, culture, protocols, and vernacular of how to work together with Tribal governments,” continued the letter. “You elected, however, not to contact us and sent an ultimatum to both tribes.”
What’s more, from a public health perspective, Gostin said: “Clearly the tribes are correct.”
The issues are even more clear-cut, he argued, given that tribes have moved to allow essential business travel—just not tourism or nonessential travel.
“It strikes me as cruel and insensitive, knowing the devastation that COVID had caused on tribes. Their vulnerability is clear,” he added, of Noem’s actions. “She’s doing exactly the opposite of what she should do.”
“This is an existential threat to the tribes,” Gostin said.