In a May 5 post Assistant Attorney General for the Navajo Nation Department of Justice Paul Spruhan argued that Indian tribes should have authority to restrict movement through their territories in order to stem the tide of the COVID-19 epidemic. Those very principles are now being put to the test in South Dakota, where Gov. Kristi Noem has demanded that Oglala Sioux tribal leaders remove the checkpoints set up to regulate traffic through the reservation.
Gov. Noem has previously come under fire for her response to the COVID-19 outbreak, which critics say has been more tailored toward her advancement within the Republican Party than to addressing the spread of the virus. As of April 28, 2020, South Dakota is operating under a “Back to Normal” plan which advises that public gatherings resume, business begin transitioning remote employees back to the workplace, and schools consider “a limited return to in-person instruction.” The plan also reiterates that South Dakotans were never required to use masks or to shelter in place. This all came shortly after South Dakota became home to the number one COVID-19 hotspot in the U.S. at the Sioux Falls Smithfield pork-processing plant.
Meanwhile, the Oglala Sioux have taken more stringent measures in limiting the spread of coronavirus on Pine Ridge Reservation, calling for a mandatory lockdown—even as Gov. Noem refused to issue a “shelter in place” order—and voting to banish the first Pine Ridge resident to contract coronavirus from the reservation. Tribal leaders have also called for Gov. Noem to take stronger action, citing the risk that the virus poses to South Dakota’s tribal communities.
Pine Ridge’s most recent measure involves highway checkpoints. Vehicles entering the reservation are stopped and the drivers are asked where they have come from and where they are going. While South Dakota residents and commercial drivers will be allowed to pass through, non-commercial and out-of-state drivers will only be allowed onto tribal lands if they are tribal members or otherwise live on the reservation.
These tribal actions are motivated in part by the fact that Pine Ridge faces an even greater threat from COVID-19 than the rest of the state. COVID-19 has exposed deep infrastructure disparities in Indian country, such as lack of access to healthcare, electricity, and running water. Data from Arizona and New Mexico—two of the only states to track the disparate impact of COVID-19 on American Indians—illustrate how the virus has disproportionately affected this population: American Indians make up 6% of the population and 16% of coronavirus deaths in Arizona and, at less than 10% of the population of New Mexico, account for over one-third of the state’s coronavirus cases. As stimulus funds designated for reservations have not yet been disbursed, Indian tribes have been left to bear the brunt of the virus with their own limited resources.
All of this is particularly true for Pine Ridge Reservation, which has the lowest life expectancy and lowest per capita income in the nation. Even more than the rest of the state, Pine Ridge and the Oglala Sioux depend upon containment of COVID-19, and, subsequently, are acting in recognition of the very real risk that the virus poses to their tribe.
Gov. Noem has promised that South Dakota will take “necessary legal action” if the Oglala Sioux do not remove their checkpoints from state and U.S. highways within forty-eight hours. In doing so, she relies upon an April 8, 2020 memorandum from the U.S. Department of the Interior’s Bureau of Indian Affairs (BIA), which states that tribes may only close or restrict access to roads that the tribe does not own after consultation with the roads’ owners.
However, the BIA memorandum does not have the force of law; it merely provides a summary of the applicable law. In explaining that tribes must consult prior to road closure, the memo references 25 C.F.R. §§ 170.114(a)(1), (b). Significantly, § 170.114(b) states that consultation is not required when the public health or safety reasons for the road closure are “immediate safety or life-threatening situations.”
Oglala Sioux leaders have also cited the Fort Laramie Treaty as providing authority for them to limit access to the reservation. Article 16 of the treaty provides that “no white person” may settle in or pass through Sioux land without the consent of the tribe. Under Indian law canons of construction, which have long governed Indian law, such treaty provisions should be liberally interpreted in favor of the tribes. And, while Public Law 280 increased state jurisdiction over tribes, a 1990 8th Circuit decision held that PL 280 does not allow South Dakota to assert jurisdiction over highways running through Indian land.
The conflict between Gov. Noem and the Oglala Sioux could represent a test of the limits of tribal sovereignty during a crisis. South Dakota’s tribes are attempting to exercise their sovereign independence in their coronavirus response, and Gov. Noem’s response seeks to impose strict limitations on tribal action and to bring them in line with the state’s laissez faire approach. If South Dakota is permitted to take the harsh legal actions that they have threatened, a dangerous precedent will have been set for the scope of tribal sovereignty in future crises.
Anastasia O’Hara is a student at Northwestern Law School and a member of the Northwestern University Law Review.