This piece is a commentary, part of The Appeal’s collection of opinion and analysis.
Since the global pandemic began, countries have used a variety of approaches to deal with the novel coronavirus. In the United States, the federal response, or lack thereof, has left states to fend for themselves. Governors across the country have issued COVID-19 protocols that range from stringent to lax—often, but not always, falling along party lines.
While states like California were quick to require lockdowns and shelter-in-place orders, others, like South Dakota, barely advised social distancing and never fully shut down. Some are quick to point out population density differences: South Dakota Governor Kristi Noem, an avid Trump supporter, has been quoted as saying, “South Dakota is not New York City.” But when Smithfield Foods, located in Sioux Falls, South Dakota, became the largest COVID-19 hot spot in America, it became evident that Noem’s refusal to mandate more rigorous standards to protect South Dakota residents comes with a human cost. Now she’s threatening the Cheyenne River Sioux and Oglala Sioux Tribes with legal action if they don’t take down checkpoints meant to protect tribal members from people who might otherwise bring coronavirus to tribal lands.
There are nine Native tribes, all belonging to the Oceti Sakowin, or the Great Sioux Nation, within the boundaries of South Dakota. They predate not only South Dakota’s statehood, but also the founding of the U.S. They hold their remaining lands through treaty, which, according to the U.S. Constitution, is the “supreme law of the land.” The state holds no authority over tribal lands in South Dakota, unless tribes expressly grant it to them.
Several tribes in South Dakota vehemently disagree with Noem’s lenient coronavirus plan, which seems to encourage exposure and prioritize the economy over the lives of those most at risk of dying from COVID-19: elders and the immunocompromised.
In a letter dated April 23, the president of the Oglala Sioux Tribe, Julian Bear Runner, pleaded with Noem “to issue a stay-at-home order, suspend evictions and utility shut-offs, and close nonessential businesses.” The Oglala have been on lockdown for the last week and it seems to be working. So far, there has only been one positive COVID-19 diagnosis on the Pine Ridge Indian Reservation, and it was a nonmember.
Tribes know they are especially vulnerable to COVID-19. We Natives are twice as likely as whites to have diabetes, which makes us susceptible to the disease. We also suffer from imposed poverty and lack the resources, including adequate medical equipment and facilities, to properly combat it. Even after the federal government promised to provide $8 billion in coronavirus relief to tribes, we had to take the Trump administration to court to stop them from giving our funding to corporations instead.
Culturally, the Oceti Sakowin hold elders in high regard, too. We are bound by blood to do all we can to protect them from this new colonial scourge. We have witnessed what can happen to Native communities during the COVID-19 pandemic when they are not able to isolate and protect themselves. As of May 10, more than 3,000 members of the Navajo Nation have contracted the virus, and 100 have died. They have the third-highest rate of novel coronavirus infections per capita in the U.S., behind New York and New Jersey.
The Cheyenne River Sioux Tribe began monitoring the borders of its reservation in the first week of April. It established these checkpoints to protect tribal members and those living on the Cheyenne River Indian Reservation against the spread of COVID-19.
Noem, who has had a contentious relationship with tribes to the point of being banned from entering the Pine Ridge Indian Reservation, has a big problem with Cheyenne River asserting their tribal sovereignty and monitoring traffic through their lands, even though they are only doing so to protect their people in the midst of a historic public health crisis.
In a news conference on April 24, Noem claimed that she had spoken with CRST Chairman Harold Frazier about the checkpoints and freely admitted that “the state of South Dakota does not have jurisdiction” on tribal land, but just a few days later, she contradicted herself. “We’re working with the Department of the Interior, the BIA, and the Department of Justice on the issue. It’s not accurate to say that Cheyenne River consulted with the state of South Dakota before they set up these checkpoints. That simply was not true,” Noem argued.
On the same day of Noem’s press conference, Darryl LaCounte, the director of the Bureau of Indian Affairs, issued an ultimatum to Frazier, ordering him to consult with South Dakota, and, if they didn’t agree to the closure, to “immediately reopen the highway for motorists,” or face “serious consequences.”
Whether the BIA director and the governor are misunderstanding or deliberately mischaracterizing events, it’s clear that Cheyenne River has not closed the highway. The checkpoints merely monitor traffic through the reservation.
It’s also a boldfaced lie to say Cheyenne River has not consulted with the state. The South Dakota Department of Transportation inspected the checkpoints and provided electrical road signage for them. Noem has left it up to South Dakota counties and municipalities to develop COVID-19 regulations individually as needed. The CRST council and Frazier followed her lead by meeting with county commissioners, school superintendents, and municipal mayors about the checkpoints. The tribe even consulted the BIA about them, LaCounte’s own department. The BIA questioned whether CRST checkpoints are being staffed with qualified law enforcement personnel as well, but those working the checkpoints were deputized and duly sworn according to the tribe’s Constitution.
Frazier, who stood on the front lines at Standing Rock when the Dakota Access Pipeline was being forced through Lakota treaty lands, will not be intimidated by federal or state officials. He answered LaCounte’s threats with questions about who owns the highway in question.
“The Cheyenne River Sioux Tribe has never agreed to grant the state a right-of-way across our land. I note that it is still our land within our reservation,” he countered.
Rather than respecting tribal sovereignty and the people of Cheyenne River, and exhibiting the qualities of a true leader who works cooperatively with others for the good of all, Noem doubled down on her anti-Native reputation. She sent Frazier a nasty letter on Friday threatening the tribe with legal action if they do not remove the checkpoints. Frazier responded to Noem calmly and rationally, emphasizing the importance of working together, but stood his ground.
“We will not apologize for being an island of safety in a sea of uncertainty and death,” he said. He supported the tribe’s right to monitor traffic through their lands by citing the Fort Laramie Treaty of 1868, a legally binding agreement between the Oceti Sakowin and the federal government that the U.S. Supreme Court has upheld as the law. Under the treaty, “no white person or persons” may pass through the tribe’s land without first obtaining their consent.
But Noem wasn’t finished yet. She sent Bear Runner the same letter, demanding that the checkpoints that the Oglala had likewise established be removed within 48 hours, or else. Bear Runner responded via Facebook, telling Noem that she “underestimates” the Oglala’s dedication to protecting their people, and they “are not moved by threats, as threats come from a position of weakness.”
The Oglala do not take kindly to threats and ultimatums, especially from Trump-inspired disciples who have no jurisdiction on their land. Neither the system of checkpoints on the Cheyenne River Reservation nor on the Pine Ridge Reservation are obstructing state or commercial functions, as Noem claims. Since Noem sent her letter, members of the Cheyenne River Sioux have begun guarding their borders, concerned about potential violence that Noem and her supporters may inflict, and vowing to protect their most vulnerable.
Let’s see how Noem defends her mean-spirited, ham-handed, unlawful attempt to make Cheyenne River endanger the lives of their people in their own ancestral homelands in court. She was already humiliated last year after a new law she championed was challenged in court, and she was forced into a settlement. The anti-First Amendment law sought to target anyone, whether a resident of the state or not, for merely vocalizing support for protests against the Keystone XL Pipeline publicly by labeling them “riot boosters.”
As a member of the Oceti Sakowin, I find it unconscionable that even in the face of imminent death during a earth-shattering pandemic, Noem and Trump’s BIA appear to be more offended by being told no by tribes—and concerned with asserting colonial dominance—than abiding by treaty law under the Constitution. We will not assist the governor in normalizing mass death and using the people of South Dakota as guinea pigs. We are the people of Sitting Bull, Spotted Elk, and Crazy Horse. We were here before European invaders arrived and we fully intend to be here after Western civilization has gone the way of the dinosaur.
Here, the wisdom of one Cheyenne River elder Councilman Ed Widow prevails: “Save lives rather than save face.” For once, Noem would do well to close her mouth and listen.
Ruth Hopkins is a Dakota/Lakota Sioux writer and enrolled member of the Sisseton Wahpeton Sioux Tribe. She is also a biologist, tribal attorney, former judge, and co-founder of Lastrealindians.com. Ruth resides on the Lake Traverse Reservation in South Dakota.