On May 8, Gov. Noem sent letters to both tribes that demanded these checkpoints be removed or she threatened to take legal action against the tribes. She points to a Department of Interior memo that states tribes must consult and reach an agreement with the state before closing or restricting travel on state or U.S. highways Regardless of what the DOI memo suggests or the cited regulation, Justice Ruth Ginsburg writing for the Supreme Court in Strate v. A-1 Contractors, assured that tribes have regulatory authority for conduct that threatens or has some direct effect on the health or welfare of the tribe, even when that conduct occurs on public highways, and even if that conduct is perpetrated by non-Indians. While the threat cannot be abstract, COVID-19 and its asymptomatic carriers are no abstract threat. The facts in Strate involved a careless driver on a public highway running through a reservation. The court acknowledged negligent drivers do endanger all in the vicinity, and jeopardize the safety of tribal members. But the court also said that if the health and welfare exception required no more, the exception would severely shrink the rule. Thus, since the court found the exception did not apply to those facts, the tribe did not have civil jurisdiction to adjudicate the matter.
Why is it permissible for some to limit travel within their territory, but not acceptable for sovereign Indian nations to do the same? Marcella LeBeau, the 100yo Lakota veteran who served in World War II, defends #Coronavirus checkpoints. @govkristinoem https://t.co/hXNydnQZhS— indianz.com (@indianz) May 11, 2020
The facts here present a different story. Unlike the threat of some careless drivers on a public highway, the potential spread of COVID-19 to a rural tribal community unquestionably involves a direct effect on the health or welfare of the tribe. Indeed, it’s no secret that COVID-19 cases and deaths continue to rise in South Dakota. Moreover, these tribes are located in rural areas with limited access to testing, treatment, and healthcare. This situation reminds me of a quote from United States v. Kagama where Justice Samuel Miller pronounced states as “the deadliest enemies of tribes.” Gov. Noem can fight COVID-19 however she prefers, but her threats against these tribal nations exercising their sovereign rights and legal authority are, at best, misguided and, at worst, a reinforcement of Justice Miller’s words that states remain “the deadliest enemies of tribes.” May it not be so.
Redshirt Table Is located on the Border of Pine Rigde Reservation Lakota Territory .— 𝕮𝖎𝖘𝖈𝖆 (@XCLUVX) May 10, 2020
Kids of the Lakota Tribe are Standing For there elders For There Families For The People.
South Dakota Governor Demands Tribe Leaders Remove Checkpoints Set Up to Prevent the Spread of COVID-19. pic.twitter.com/G50rLeYYYp
Alexander Mallory is from the Winnebago Tribe of Nebraska. He currently works as an Attorney Advisor in Dallas, Texas, through the United States Department of Justice Honors Program. The views expressed in this article are those of the author and do not represent the official policy or position of the U.S. Department of Justice, the U.S. government or of the Winnebago Tribe.