{"id":1404,"date":"2020-05-14T12:30:14","date_gmt":"2020-05-14T17:30:14","guid":{"rendered":"https:\/\/blogofnotesite.wpengine.com\/?p=1404"},"modified":"2020-05-14T13:58:17","modified_gmt":"2020-05-14T18:58:17","slug":"south-dakotas-covid-19-response-is-a-battleground-for-tribal-sovereignty","status":"publish","type":"post","link":"https:\/\/blog.northwesternlaw.review\/south-dakotas-covid-19-response-is-a-battleground-for-tribal-sovereignty\/","title":{"rendered":"South Dakota\u2019s COVID-19 Response is a Battleground for Tribal Sovereignty"},"content":{"rendered":"\n

In a May 5 post<\/a> 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<\/a> set up to regulate traffic through the reservation.<\/p>\n\n\n\n

Gov. Noem has previously come under fire for her response to the COVID-19 outbreak, which critics say<\/a> 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 \u201cBack to Normal\u201d plan<\/a> which advises that public gatherings resume, business begin transitioning remote employees back to the workplace, and schools consider \u201ca limited return to in-person instruction.\u201d 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.<\/a> at the Sioux Falls Smithfield pork-processing plant.<\/p>\n\n\n\n

Meanwhile, the Oglala Sioux have taken more stringent measures in limiting the spread of coronavirus on Pine Ridge Reservation, calling for a mandatory lockdown<\/a>\u2014even as Gov. Noem refused to issue a \u201cshelter in place\u201d order\u2014and voting to banish<\/a> the first Pine Ridge resident to contract coronavirus from the reservation. Tribal leaders have also called for Gov. Noem to take stronger action<\/a>, citing the risk that the virus poses to South Dakota\u2019s tribal communities.<\/p>\n\n\n\n

Pine Ridge\u2019s most recent measure involves highway checkpoints<\/a>. 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.<\/p>\n\n\n\n

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<\/a>, such as lack of access to healthcare, electricity, and running water. Data from Arizona and New Mexico\u2014two of the only states to track the disparate impact of COVID-19 on American Indians\u2014illustrate how the virus has disproportionately affected this population: American Indians make up 6% of the population and 16% of coronavirus deaths<\/a> in Arizona and, at less than 10% of the population of New Mexico, account for over one-third of the state\u2019s coronavirus cases. As stimulus funds designated for reservations have not yet been disbursed<\/a>, Indian tribes have been left to bear the brunt of the virus with their own limited resources.<\/p>\n\n\n\n

All of this is particularly true for Pine Ridge Reservation, which has the lowest life expectancy and lowest per capita income in the nation<\/a>. 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.<\/p>\n\n\n\n

Gov. Noem  has promised that South Dakota will take \u201cnecessary legal action\u201d<\/a> 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<\/a> from the U.S. Department of the Interior\u2019s 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\u2019 owners.<\/p>\n\n\n\n

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.\u00a0\u00a7\u00a7 170.114(a)(1), (b)<\/a>. Significantly, \u00a7\u00a0170.114(b) states that consultation is not <\/em>required when the public health or safety reasons for the road closure are \u201cimmediate safety or life-threatening situations.\u201d<\/a><\/p>\n\n\n\n

Oglala Sioux leaders have also cited the Fort Laramie Treaty<\/a> as providing authority for them to limit access to the reservation. Article 16 of the treaty<\/a> provides that \u201cno white person\u201d may settle in or pass through Sioux land without the consent of the tribe. Under Indian law canons of construction<\/a>, which have long governed Indian law, such treaty provisions should be liberally interpreted in favor of the tribes. And, while Public Law 280<\/a> increased state jurisdiction over tribes, a 1990 8th Circuit decision<\/a> held that PL 280 does not allow South Dakota to assert jurisdiction over highways running through Indian land.<\/p>\n\n\n\n

The conflict between Gov. Noem and the Oglala Sioux could represent a test of the limits of tribal sovereignty during a crisis. South Dakota\u2019s tribes are attempting to exercise their sovereign independence in their coronavirus response, and Gov. Noem\u2019s response seeks to impose strict limitations on tribal action and to bring them in line with the state\u2019s 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.<\/p>\n\n\n\n

Anastasia O\u2019Hara is a student at Northwestern Law School and a member of the <\/em>Northwestern University Law Review.<\/p>\n","protected":false},"excerpt":{"rendered":"

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…<\/p>\n

Read More Read More<\/span><\/a><\/p>\n","protected":false},"author":111,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[134,122,194],"tags":[114,111,140,204,191,131,192,203],"class_list":["post-1404","post","type-post","status-publish","format-standard","hentry","category-constitutional-issues","category-covid-19","category-other-issues","tag-coronavirus","tag-covid-19","tag-pandemic","tag-south-dakota","tag-sovereign-indian-tribe","tag-stay-at-home","tag-tribal-lands","tag-tribal-sovereignty"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p9jSvD-mE","jetpack-related-posts":[{"id":1383,"url":"https:\/\/blog.northwesternlaw.review\/covid-19-and-indian-country-a-legal-dispatch-from-the-navajo-nation\/","url_meta":{"origin":1404,"position":0},"title":"COVID-19 and Indian Country: A Legal Dispatch from the Navajo Nation","author":"Paul Spruhan","date":"May 5, 2020","format":false,"excerpt":"There has been much press coverage on the Navajo Nation\u2019s struggle to contain the spread of COVID-19 on its lands. As of May 2, 2020, the Nation has 2,373 confirmed cases, and more than seventy deaths from the virus. These reports have noted the practical impediments the Nation faces in\u2026","rel":"","context":"In "COVID-19"","block_context":{"text":"COVID-19","link":"https:\/\/blog.northwesternlaw.review\/category\/covid-19\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":1498,"url":"https:\/\/blog.northwesternlaw.review\/access-to-public-lands-during-the-covid-19-pandemic\/","url_meta":{"origin":1404,"position":1},"title":"Access to Public Lands During the COVID-19 Pandemic","author":"Kellen Zale","date":"June 25, 2020","format":false,"excerpt":"In an effort to reduce the risk of transmission of COVID-19, federal, state, and local governments have acted to limit or entirely close off access to public outdoor spaces, such as local playgrounds and state and national parks. As the country begins to reopen, governments have sought to balance the\u2026","rel":"","context":"In "Congressional Responses"","block_context":{"text":"Congressional Responses","link":"https:\/\/blog.northwesternlaw.review\/category\/covid-19\/congressional-responses\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":1414,"url":"https:\/\/blog.northwesternlaw.review\/vaccines-and-ip-preparedness-in-the-coronavirus-outbreak\/","url_meta":{"origin":1404,"position":2},"title":"Vaccines and IP Preparedness in the Coronavirus Outbreak","author":"Ana Santos Rutschman","date":"May 18, 2020","format":false,"excerpt":"The COVID-19 pandemic has shed renewed light on the importance of research and development (R&D) on biopharmaceutical products needed to prevent or lessen the burden posed by outbreaks of infectious diseases. Among these, the need for new vaccines has become of paramount importance. While a race to develop different types\u2026","rel":"","context":"In "Congressional Responses"","block_context":{"text":"Congressional Responses","link":"https:\/\/blog.northwesternlaw.review\/category\/covid-19\/congressional-responses\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":1408,"url":"https:\/\/blog.northwesternlaw.review\/covid-19-phobias-about-health-finances-law-leadership-and-loneliness\/","url_meta":{"origin":1404,"position":3},"title":"COVID-19 Phobias About Health, Finances, Law, Leadership, and Loneliness","author":"Peter Huang","date":"May 15, 2020","format":false,"excerpt":"COVID-19 is not just a medical and physical health pandemic; it has also led to interrelated phobias concerning health, finances, law, leadership, and loneliness. These interconnected phobias feed off each other and can alter a person\u2019s decision-making, risk perception, and self-identity. They also create and increase anxious feelings in sufferers.\u2026","rel":"","context":"In "Congressional Responses"","block_context":{"text":"Congressional Responses","link":"https:\/\/blog.northwesternlaw.review\/category\/covid-19\/congressional-responses\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":1435,"url":"https:\/\/blog.northwesternlaw.review\/data-control-and-surveillance-in-the-covid-19-response\/","url_meta":{"origin":1404,"position":4},"title":"Data Control and Surveillance in the COVID-19 Response","author":"Brian Citro & Kat Albrecht","date":"May 26, 2020","format":false,"excerpt":"In a paper published last month, we argue that the emerging emphasis on digital technologies in the global tuberculosis (TB) response is ushering in a new era of data colonization and surveillance in the name of public health. We assert that, despite some promise, digital adherence technologies for TB create\u2026","rel":"","context":"In "COVID-19"","block_context":{"text":"COVID-19","link":"https:\/\/blog.northwesternlaw.review\/category\/covid-19\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":1484,"url":"https:\/\/blog.northwesternlaw.review\/trump-weaponizes-covid-19-against-illegal-immigrants\/","url_meta":{"origin":1404,"position":5},"title":"Trump Weaponizes COVID-19 Against Illegal Immigrants","author":"Sergio Garcia","date":"June 11, 2020","format":false,"excerpt":"As a criminal defense attorney in the border city of El Paso, Texas, I meet with illegal immigrants weekly, if not daily. I witness their journey firsthand. I represented families when President Trump piloted his family separation policy in El Paso. 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