Criminal cases in S.D. courts will test legal basis of Cheyenne River Sioux checkpoints

Capitol News Bureau

PIERRE, S.D. (KELO) — One of the first cases alleging criminal violations of traffic checkpoints that the Cheyenne River Sioux Tribe is operating on state and federal highways began slowly moving through a South Dakota courtroom Tuesday.

State Circuit Judge Gordon Swanson set a July 20 hearing to consider motions filed Tuesday from a defense attorney, Marty Jackley, and responses from Dewey County State Attorney Steve Aberle.

Aberle told the judge he had communicated with the tribal government’s attorney general, Stacey Zephier, and expected there could be a friend of the court brief from the tribe. Aberle said he was aware of about a half-dozen such checkpoint cases.

Jackley entered pleas of not guilty for his client, Wayne Hepper of rural Kenel. Jackley, a former U.S. attorney for the District of South Dakota and a former state attorney general, lost in the 2018 Republican primary for governor to then-Congresswoman Kristi Noem.

Noem, who won election as governor, sent several letters in recent weeks to the Cheyenne River Sioux and the Oglala Sioux Tribe. She initially demanded they remove their checkpoints and then suggested the checkpoints could be put on BIA and tribal highways instead.

In reservation areas, tribal governments have jurisdiction over tribal people, while state governments have jurisdiction over non-tribal people. The federal government has general jurisdiction over both.

Noem also announced last week that state Attorney General Jason Ravnsborg had opened an investigation for her. Her office sent copies of video and four affidavits to the White House, the U.S. Department of Justice, the national and regional BIA offices, and South Dakota’s three members of Congress. Also sent were many pages of tribal resolutions granting access to state government for the state and federal highways.

Noem told reporters at a briefing Tuesday afternoon she hasn’t received any official response from any of the federal officials or from either tribal government.

Federal Bureau of Indian Affairs Director Darryl LaCounte issued a memorandum April 8 that acknowledged his office had received information that many tribal governments were issuing orders banning or curtailing travel within tribal lands amid the COVID-19 pandemic.

The memo said tribes could close or restrict travel on state and federal roads only after a tribe had consulted and reached an agreement with the road’s owner.

On April 23, Noem wrote a letter to U.S. Interior Secretary David Bernhardt about the Cheyenne River situation. BIA is part of the U.S. Interior Department. The next day, LaCounte wrote a letter specifically to CRST Chairman Harold Frazier regarding checkpoints that the tribal government was running on several state and federal roads through the reservation.

Frazier, who provides daily updates through a radio station at Eagle Butte and in a local newspaper and website, has argued he is protecting people on the reservation. The correspondence between Noem and various federal and tribal officials are at covid.sd.gov.

The stay-home/stay-out approach has kept COVID-19 off the reservation’s two counties. The state site shows that, through Monday, residents of Dewey County had zero positive tests among 313 people tested for COVID-19, while Ziebach County had one positive among 47 people tested. Among all South Dakota residents, there have been 4,653 positive tests and 32,385 negative results.

Jackley contends that the case should be dismissed against Hepper, who faces two counts related to disregarding instructions after he stopped at a checkpoint near Faith on US 212 at about 9:45 p.m. April 8. Jackley has requested the video and affidavits.

The person at the checkpoint was a tribal preservation officer, Steve Vance, who reportedly told Hepper he couldn’t enter the reservation because his truck had North Dakota license plates.

Hepper instead ignored that instruction and continued on US 212 past the checkpoint onto the reservation.

The preservation officer used a dual-axle pickup to follow Hepper on US 212 and called the Cheyenne River Sioux Tribal police department for assistance.

Tribal Police Sergeant Terry Long Mandan joined the pursuit and tried to pull Hepper over. Meanwhile Dewey County Sheriff’s Deputy Dan Assman deployed spike strips two to three miles ahead. Hepper stopped after passing the deputy’s vehicle. The deputy arrested Hepper.

Jackley said the allegation that Hepper was eluding a law enforcement officer should be dismissed, because the tribal sergeant doesn’t meet the state law’s definition of a state-certified law enforcement officer. Jackley said Hepper stopped when he saw the deputy’s vehicle.

Copyright 2020 Nexstar Broadcasting, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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