South Dakota Tribes, Gov. Kristi Noem Unable to Compromise on Checkpoints

Posted on: May 19, 2020, 11:30h. 

Last updated on: May 20, 2020, 03:48h.

Ed Silverstein @casinoorgedsilv Read More

Expertise: Legal, Tribal Gaming.

UPDATE: South Dakota Gov. Kristi Noem said Wednesday she has sent affidavits and video to the White House, the Department of Justice, the Interior Department, and her state’s congressional delegation, asking for help to resolve the dispute with state tribes over road checkpoints, the Associated Press reported.

A dispute is continuing between two South Dakota Sioux tribes and Gov. Kristi Noem over tribal checkpoints on highways and local roads which aim to lower the risk of coronavirus transmission on reservations.

Last month, the Cheyenne River Sioux and the Oglala Lakota Sioux started the controversial roadblocks, mainly targeting visitors or tourists. Noem threatened this month to bring the tribes to court if the roadblocks were not removed. Last week, she suggested a compromise, where tribes could have checkpoints on tribal roads, but not public highways.

When asked for comment, tribal gaming lawyers said it appears the law comes down on the side of the tribes.

“Unfortunately, there is no general rule to cover this situation,” Rory Dilweg, an attorney at Colorado’s Berg Hill Greenleaf Ruscitti, told Casino.org. “South Dakota has a factually distinct history in dealing with Indian tribes that cannot be extended elsewhere.”

Specifically, he noted that a 1990 legal case, Rosebud Sioux Tribe v. State of South Dakota, “describes the limits of state jurisdiction over … highways running through Indian reservations. Essentially, the state has no authority to enforce its laws on the reservations, including on the highways, so I think the state of South Dakota loses this battle,” Dilweg said.

Gary Pitchlynn, an attorney in Oklahoma and a professor at the University of Oklahoma College of Law, basically agrees.

I would argue that the state of South Dakota does not have authority to force the tribe to cease their blockade, so the recourse would more likely come from the feds, if anyone,” Pitchlynn told Casino.org.

“In general, states have very little authority over Indian tribes and their reservations. One of the key powers that tribes have is the power to exclude non-members from their reservations,” Dilweg added.

Future of Courtroom Battle

Could the disagreement wind up in court?

“The only way that this could end up in federal court is if the state makes a forceful move to physically stop the tribal officials, and thus the tribe would seek relief in the form of an injunction  — cease and desist order — or if the feds try to push the tribes off their roadblocks, which would bring similar legal action in federal court,” Pitchlynn said.

As of now, it is unlikely a court action on the checkpoint dispute would provide new judicial guidance on more far-reaching questions on tribal sovereignty and the rights of states. If far-reaching decisions ever are issued by judges, they could impact tribal gaming.

Also, in other ways, resolution of the checkpoint dispute may not be too important for tribal casinos, given the pandemic, according to Dilweg. “Tribal casinos are owned by tribes or tribal entities. The tribal governments or economic development authorities [dealing with the COVID-19 pandemic] will have to weigh potential risks to the health of their members against their economic needs,” Dilweg said.

I don’t think this particular issue is pertinent to the decisions that tribes will be making as to whether and when to open their casinos,” Pitchlynn agreed. “Tribal leaders are, for the most part, looking at the science of this pandemic, and would not want the bad PR or related consequences that would be associated with creating a hotbed of infections and generating new cases among their employees or their patrons.”

Further support for the tribal checkpoints comes from the ACLU of South Dakota.

“Tribal sovereignty allows the tribes to operate these checkpoints within their land,” Candi Brings Plenty, an organizer for the ACLU of South Dakota, said in a statement. “Undermining that tribal sovereignty, that authority for the tribes to govern themselves, goes against the treaties the tribes have with the United States government.”

The checkpoints are “essential to protecting the health of the people on the reservations. Threatening costly litigation against the tribes isn’t the answer. Good relationships and solid communication is,” Plenty added.

In recent weeks, tribal leaders appear to be standing their ground. “We will not apologize for being an island of safety in a sea of uncertainty and death,” Cheyenne River Sioux Chairman Harold Frazier said in a statement quoted by the Associated Press. He warned that the tribe’s reservation has only eight hospital beds, adding that COVID-19 could “spread like wildfire.”

In addition, Oglala Sioux President Julian Bear Runner said South Dakota has been “ineffective” in controlling the spread of the coronavirus pandemic, the AP reported. The federal Bureau of Indian Affairs told tribes access to roads could be restricted only if tribal leaders reached an appropriate agreement, the AP adds.

Noem Wants to Ensure Essential Services Get Through Checkpoints

But Noem claims some essential service drivers have faced challenges at the tribal checkpoints. “We need to be able to get ranchers to their cattle, people to their property, and to make sure that we’re allowing people who want to travel through the area to continue to do so, and not to be stopped and turned around,” Noem was quoted by the AP.

Tribal leaders say their designated officers will continue to stop motorists entering or leaving a reservation to ask health-related questions. Drivers who need to conduct essential business are permitted onto reservation property, the Real News reported.

Last week, drivers on highways in western South Dakota were alerted that tribal checkpoints were in place at the Pine Ridge and Cheyenne River Indian reservations, television station KELO reported. The South Dakota Department of Transportation notified the motorists through message boards.