PIERRE, S.D. (KELO) — The South Dakota Highway Patrol lacks agreements to enforce laws on the Cheyenne River and Pine Ridge Indian reservations, Governor Kristi Noem acknowledged Monday.
The Cheyenne River Sioux and Oglala Sioux tribal governments have cited protection against COVID-19 as the reason for letting only traffic deemed essential to cross onto their reservations via state and federal highways. Tribal governments operate under federal authority.
Noem issued a letter Friday to the two tribes, warning she would take legal action within 48 hours against the checkpoints that began operating in April. She cited a federal Bureau of Indian Affairs memo that said tribal governments and state governments needed to agree on road issues.
As of the close of business Monday, however, nothing had been filed in court by state government, according to Tom Hart, the governor’s chief legal counsel.
Hart put off a question from KELOLAND News seeking a specific decision that supported the governor’s position. He said the governor’s office doesn’t comment on potential litigation.
“The pleadings will set forth the legal position and authority of the state,” Hart said.
Jesse Phelps, press director for The Lakota People’s Law Project, said Monday night there isn’t a federal court decision yet about this exact issue but there were some “strong” precedents.
Chase Iron Eyes, who serves as Oglala Sioux Tribe President Julian Bear Runner’s spokesperson, is lead counsel for the Lakota People’s Law Project.
“We and several state lawmakers believe that both Fort Laramie treaties from the 1800s as well as a 1990 federal 8th Circuit Court of Appeals ruling should apply and that the tribes are well within their rights as sovereign nations to set up and maintain the checkpoints,” Phelps said.
Those treaties designated the western half of what then was Dakota Territory as the Great Sioux Reservation. Later acts of Congress opened up much of the land in western South Dakota to non-Indian settlers, while Indian people were separated into various reservation areas.
An article in South Dakota History recounts how voters at the ballot box rejected a 1964 attempt by the Legislature that would have given state government jurisdiction over tribal reservations on all criminal and civil matters, without tribal members’ consent.
Most of the governor’s media briefing Monday focused on the checkpoints stand-off. Noem listed ways her administration since taking office in January 2019 has attempted to help tribal governments deal with drug addiction, missing and murdered women, and K-12 performance.
She said state government has law enforcement partnerships with some tribal governments. She said those cover drug crimes enforcement, extraditions and other situations such as big public events.
Asked specifically whether the Highway Patrol had such agreements with the Oglala Sioux and the Cheyenne River Sioux, the governor answered, “I don’t believe we have existing agreements in place with those two tribes.”
She didn’t mention her 2019 riot-boosting legislation that state lawmakers hurriedly passed for the proposed Keystone XL pipeline, despite tribal leaders’ objections. Rural county governments supported the legislation because they feared protests could overwhelm their small law enforcement forces. The route would cross through more than 300 miles of western South Dakota while avoiding lands within tribal reservations.
A federal judge later rejected parts of those new laws and other longer-standing South Dakota statutes, after a variety of interests represented by the American Civil Liberties Union challenged them. The governor’s office paid the ACLU’s legal costs. The Legislature this year adopted new laws to replace them to fit the judge’s direction.
For weeks Noem was officially barred from the Pine Ridge reservation. The Oglala Sioux council later lifted the ban.
Iron Eyes, representing the Oglala Sioux President, issued a response Monday evening on the checkpoints issue that said, in part, “Because South Dakota Governor Kristi Noem has failed to mandate common sense protections for tribes and all the people of her state during the COVD-19 pandemic, the Oglala and Cheyenne River nations have taken matters into our own hands.”
He added, “No more genocide. We say enough is enough. We will stand to defend our right to live in our homelands, free from tyranny, free from disease. This is life or death situation, and we have a right to life.”