Checkpoints on reservations point of discussion

Dewey County Sheriff assisting Cheyenne River Sioux Tribe at checkpoint.

EAGLE BUTTE — The Cheyenne River Sioux and Oglala Sioux tribes are refusing to bow to an order South Dakota Gov. Kristi Noem sent the two tribes on May 8. The order states the tribes must remove coronavirus traffic checkpoints from reservation borders or face legal action.
The top elected leaders of the state’s two largest tribes argue that Constitutional and treaty law establish their tribal sovereignty and authority to protect their people operating the roadside stops within their boundaries.
“I regretfully decline your request,” Cheyenne River Sioux Chair Harold Frazier said in a letter to Noem on May 8. “I stand with our Councilman Ed Widow that the purpose of our actions is to, ‘save lives rather than save face.’” He also added, “We will not apologize for being an island of safety in a sea of uncertainty and death.”
One reason the checkpoints are necessary is South Dakota’s slow and ineffective response to the Covid-19 pandemic, according to Oglala Sioux Tribal President Julian Bear Runner.

South Dakota is one of five states that hasn’t issued a shelter-in-place mandate, despite a steady increase in confirmed cases of Covid-19.
“Due to this lack of judgement and planning of preventative measures … , the Oglala Sioux Tribe has adopted reasonable and necessary measures to protect the health and safety of our tribal members and other residents of the Pine Ridge Indian Reservation,” Bear Runner wrote to Noem on May 8.
Governor Noem and Bureau of Indian Affairs officials have asserted that the checkpoints must be removed because they are in violation of a memorandum sent by the BIA. The memo states that tribes must consult with state officials before “closing or restricting travel on State or U.S. highways.”
Both Chairman Frazier and President Bear Runner have said they have not closed any roads and are using the checkpoints to mitigate and track the spread of the coronavirus.
“Non-residents whose travel is considered non-essential are advised to pass through the Reservation without stopping,” wrote President Bear Runner to Noem. “It is not our intent to deny them passage through the Reservation, including on U.S. Highway 18 and State Highways 44, 391, and 407.”
At the heart of the debate is the scope of tribal authority on state and federal highways that run through tribal territory. Chairman Frazier and President Bear Runner argue that the law supports the tribes.
In his May 8 response to the governor, Frazier cited Article 16 of the 1868 Ft. Laramie Treaty which “stipulates and agrees that no white person or persons shall be permitted to settle upon or occupy any portion of the same; or without the consent of the Indians first had and obtained, to pass through the same.” He added that while collaboration is crucial during this time, being forced to remove the checkpoints restricts the fundamental right of the tribe — a sovereign nation — to protect their people.
“I absolutely agree that we need to work together during this time of crisis, however you continuing to interfere in our efforts to do what science and facts dictate seriously undermine our ability to protect everyone on the reservation,” wrote Frazier.
The Oglala Sioux Tribe also cited the Ft. Laramie Treaty in their response letter:
“The 1868 Treaty recognizes that our Reservation was ‘set apart for the absolute and undisturbed use and occupation’ of our Indian people,’” wrote President Bear Runner. He added that, according to the treaty, outsiders would not “ever be permitted to pass over, settle upon, or reside in [our territory].”
He also referenced South Dakota’s state constitution, which contains the agreement “we, the people inhabiting the state of South Dakota, do agree and declare that we forever disclaim all right and title… to all lands… owned or held by any Indian or Indian tribes…” S.D. Const., Art. XXII.
Tribal leadership are not the only elected officials questioning the legality of the governor’s checkpoint removal order.
On May 9, 17 South Dakota congressmen sent a bipartisan letter to Governor Noem’s office arguing that the order violates numerous treaties and court rulings.
“Your statement that Tribal governments do not possess the ability to establish checkpoints within the boundaries of their homelands is not accurate,” the letter states. “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.”
Then congressmen then cited a 1990 ruling by the 8th Circuit Court of Appeals, Rosebud Sioux Tribe v. State od S.D., which states, “Absent tribal consent, we hold the State of South Dakota has no jurisdiction over the highways running through Indian lands in the state.”
The congressmen went on to chide Governor Noem for not consulting with those of them who represent districts that include tribal lands.
“…we could have helped facilitate conversations and given your office unique insights as to the history, culture, protocols, and vernacular of how to work together with Tribal governments,” the congressmen wrote. “You elected, however, not to contact us and sent an ultimatum to both tribes. We think a better approach is communication rather than confrontation, cooperation rather than constitutional crisis and discussion rather than demands.”
Later in the week Noem reversed her order and said the ruling should be left in the hands of the federal government.