Checkpoint Closure By South Dakota Governor An Attack On Tribal Sovereignty

By: Jen Deerinwater | May 16, 2020

South Dakota’s Republican Governor Kristi Noem publicly issued a letter to the Cheyenne River (CRST) and Oglala Sioux Tribes (OST) on May 8 ordering them to remove health checkpoints on roads crossing their reservations but did not directly deliver it to OST—“a sign of “disrespect,” according to OST President Julian Bear Runner.

The letter, which was dated May 8, was never actually received by Bear Runner, he explained during a recorded response to Noem. He learned of Noem’s letter through news reports and social media.

He went on to say that it’s abnormal for the state to not notify the tribe and called it “a sign of disrespect for a sovereign nation or another government agency.”

A Bureau of Indian Affairs April 8 memorandum explained that state and U.S. roads couldn’t be closed on the reservations. Those not residing on the Pine Ridge reservation who aren’t providing essential services are advised to pass straight through, Bear Runner explained. No roads have been closed.

The checkpoints were put in place as a way to control and track the spread of COVID-19 on the reservation. Everybody who works at the checkpoints on the CRST reservation are deputized under the tribal government. They ask anyone entering and exiting the reservation a series of health related questions. All essential business is permitted to cross the reservation.

CRST Chairman Harold Frazier stated in a  letter in response to Noem “we will not apologize for being an island of safety in a sea of uncertainty and death.”

The Rosebud Sioux Tribe have also instituted checkpoints on their roads. They’re currently under tribal government enforced lockdown until 6:00 a.m. CST on May 17. The OST ended a three day lockdown on May 13.

Noem has claimed the checkpoints on state and federal highways prevent essential services from making their way to areas in need. The South Dakota Retailers Association also claims that some retailers were turned away at the CRST checkpoints. The CRST has denied this.

Only those not providing essential services were asked to go around the CRST reservation.

“Well over 90% of commercial businesses with truckers or supplies coming in, most of them already have travel permits,” Joye Braun, member of the CRST and an organizer with the Indigenous Environmental Network, told TRNN. “They show their card and they’re waved through.”

Under the Fort Laramie Treaties of 1851 and 1868 the CRST and OST have the right to restrict who passes through their lands. These are the same treaties that the Standing Rock Sioux Tribe cited when fighting the construction and flow of oil in the Dakota Access Pipeline. The U.S. government has broken every treaty it has signed with tribal nations, but a 1990 8th Circuit Court of Appeals case ruled that no state has jurisdiction over highways running through Native lands without tribal consent.

On May 10, a bipartisan group of seventeen South Dakota legislators sent a letter to Noem challenging the governor’s claims regarding the checkpoints and sovereignty.

“Your statement that Tribal governments do not possess the ability to establish checkpoints within the boundaries of their homelands is not accurate,” the letter said. “The Legislature has not passed any bill stating as such, nor does the State of South Dakota have the authority to enforce State law within the boundaries of a Reservation.”

The letter went on to say “We do not wish to be party of another lawsuit that will ultimately cost the people of South Dakota more money.”

A representative from Governor Noem’s office told TRNN they haven’t initiated any legal action at this time, but hopes that the CRST and OST are “amenable” to the plans laid out in letters sent to the CRST on May 12 and OST on May 13. They state that tribal checkpoints should be removed from U.S. and state highways, but checkpoints on tribal or Bureau of Indian Affairs roads are acceptable: “tribal interaction with these travelers at checkpoints is unlawful and could actually increase the risk of spreading the virus.” Noem continued, “to be clear, the state has no objection to tribal checkpoints on BIA/tribal roads.

The governor’s office told TRNN that they believe the U.S. government has jurisdiction over the state and U.S. highways that cross the reservation and that OST and CRST need to work with the federal government and the state to create a plan that is amenable to both sides. Both CRST and OST state that they sent letters to Noem’s office explaining their checkpoint system when it began, but they never received a reply.

Regarding the RST checkpoints, Noem has been in contact with the RST, but gave TRNN no other information.

Former U. S. Senator Byron Dorgan defended tribal sovereignty in a May 13 press release from the Center for Native American Youth, where he serves as a founder and chairman for the CNAY Advisory Board.

“In the absence of an effective national testing program in the U.S., I believe the tribes have every right to be concerned about people coming to their reservation who could spread the deadly virus,” Dorgan wrote. “As a former U.S. Senator, I’ve seen firsthand that state and federal governments have not demonstrated a willingness to spend the time or resources to protect tribal communities. Tribal officials have a right to do things that are necessary to protect themselves.”

South Dakota is one of only a few states that did not issue a stay-at-home order. Since non-essential businesses have reopened there has been a spike in confirmed COVID-19 infection rates. As of May 14, The New York Times reports that South Dakota had 3,792 confirmed COVID-19 cases and 43 deaths. May 7-9 saw a large spike in contraction rates. Pennington County, directly north of Oglala Country and home of the OST, and near the CRST reservation, has been especially hard hit with cases doubling every six days.

The rates of infections and deaths within tribal nations have skyrocketed due to the ongoing legacy of settler colonialism and racism. The U.S. government has a trust and treaty responsibility to provide a variety of services, such as the Indian Health Services, to Native nations and people. However, chronic underfunding has led to astronomically high rates of preventable illnesses and deaths. While the well being of Native people varies across tribal nations and communities, the situation is particularly dire for the OST; 97% of those on the Pine Ridge reservation live in poverty. The life expectancy is only 48 for men and 52 for women.

The Navajo Nation resides on the largest reservation and is larger than West Virginia. Much of the reservation lacks basic infrastructure such as roads and running, clean water. They now have the third highest per capita rates of confirmed COVID-19 infections in the U.S.

The first confirmed deaths in Alaska and Oklahoma were Native people and the first death in the Bureau of Prisons, Andrea Circle Bear, was a Native woman who gave birth while on a ventilator. Coupled with the lack of tests, many Native people with COVID-19 aren’t even being counted as American Indian or Alaska Native and are instead are counted as “other”, leaving the community without the actual rates of contractions and deaths across the U.S., as 71% of AI and AN people live in urban areas making data collection outside of Native healthcare of particular concern.

These deaths represent the over five hundred years of genocide that the Indigenous people of these lands still suffer. Being no stranger to pandemics, many Native ancestors didn’t survive the smallpox blankets or the 1918 Spanish flu. In an April press release the Zuni Pueblo said they’re facing extinction due to COVID-19. The state and federal governments lack of appropriate response to the COVID-19 crisis is a form of genocide.

In March, the Seattle Indian Health Board requested COVID-19 tests, supplies, and personal protective equipment, but were instead sent body bags and toe tags.

Poverty is a substantial barrier to many of the activities, such as social distancing and hand washing, to control the rates of contraction for Native people. In March, the federal government gave two $40 million payments to the Center for Disease Control to distribute for Indian Health Services, tribal-run health centers, and urban Indian health centers. The CDC sat on the money instead of immediately disbursing it. The federal government only just began this month releasing some of the $8 billion appropriated to tribal nations under the CARES Act.

In a press conference on May 14, South Dakota Secretary Malsam-Rysdon announced the state would begin mass testing that would include tribal governments. Testing will begin with the Sisseton Wahpeton Oyate nation whose reservation is in both North and South Dakota. Despite this, some tribal members don’t trust Noem.

“It’s really important to go back and look at the history of Kristi Noem,” Braun stated. “She doesn’t like Indian people…she wants to get rid of the reservations.”

At the heart of this situation is the inherent right to tribal sovereignty and for tribal nations and their people to quite literally, survive: Tribal nations are attempting to defend their people and save lives. Tribal nations are not merely tribes, but are sovereign nations with the inherent right to self-governance and should have total jurisdiction over matters on their lands. They don’t truly exist in America, but rather are their own nations, their own countries. The U.S. is a foreign entity.

“The Oglala Band is ready to stand against foreign intrusion into our daily lives,” Bear Runner said.

This story is made possible by a grant from the R&M Lang Foundation in support of reporting by and for indigenous communities.

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