COVID-19 Restrictions Put Tribal Sovereignty To The Test
The Blackfeet Nation in the northwest corner of Montana shut its borders in an effort to stave off the coronavirus. Mary Auld reports on central South Dakota, where the Cheyenne River Sioux are enacting their own preventative measures as a sovereign government.
Since April 1, every person entering the Cheyenne River Reservation in South Dakota has to stop at a checkpoint to be screened for COVID-19.
A report from CNN captured the interaction:
[Checkpoint employee]: No fever, cough, fatigue, shortness of breath?
[Driver]: No, I don’t have any of those things
Cheyenne River Sioux Tribal Chairman Harold Frazier says checkpoints along with mandatory stay-at-home orders and a mask mandate are intended to protect reservation residents from contracting COVID-19. He spoke with indianz.com.
"It is tough because once it starts spreading it could easily get out of control. We know that our best tool is prevention. Hopefully it works and we keep this virus at a minimum."
An outbreak would be devastating because the hospital that serves the reservation has only eight beds for patients.
Tribes across the country are using their power to self-govern to enact stricter rules than many state and county governments have to prevent the spread of the pandemic. Back in June, when the rest of Montana decided to re-open for business after an initial two-week shutdown, the Blackfeet Nation voted to continue their lockdown. And Montana Governor Steve Bullock supported them.
"I will continue to work closely with the Blackfeet Nation."
But in South Dakota, Governor Kristi Noem saw the pandemic differently. She put federal coronavirus relief funds toward an ad campaign focused on drawing tourists to the state during the pandemic.
By mid-October South Dakota had again become one of the nation’s COVID hot spots. For much of October, Montana was also among the top three states for rising COVID-19 cases per capita.
As cases across South Dakota spiked, the Cheyenne River Sioux Tribe continued to screen every person who came onto the reservation
But the South Dakota government wasn’t happy with that, a point Governor Noem made clear during a May 20 press conference.
"I sent a letter to the tribes, to Cheyenne River, telling them to remove these checkpoints to be in compliance with the law."
Noem alleged that the tribe didn’t have the authority to regulate use of state- and federally-owned roads. But states don’t have authority over tribes, so it’s unclear how the South Dakota would go about independently shutting down the checkpoints on the reservation’s border. Tribes have sovereignty, which means they can make laws that govern the people and land within their territory. But there’s a catch. Tribes don’t own all the land within their reservations.
"Indian reservations are kind of like Swiss cheese, right, the borders are there, but Congress has opened up large swaths of land to non-Indians, non-members of the tribe," says professor and attorney Matthew Fletcher. "So you have a checkerboard pattern of land ownership within Indian reservations."
Fletcher’s a member of the Grand Traverse Band of Ottawa and Chippewa Indians.
He says pre-pandemic, tribes couldn’t just turn away people who don’t pass a health screening. He says they could make laws that applied to tribally owned land and tribal members
But in unprecedented times like a pandemic, there are exceptions. Tribes do have jurisdiction over anyone acting within reservation borders who poses a serious threat to the existence of the tribe.
Courts haven’t ruled on whether a pandemic counts as a “serious threat” The Cheyenne River Sioux, the Blackfeet, and many other tribes across the U.S. are betting it does. Fletcher agrees.
"One person could come in who is asymptomatic, who is not intending to do any harm to anybody, and could still create a terrible epidemic," Fletcher says.
So why did things go so differently for the Blackfeet in Montana than for the Cheyenne River Sioux Tribe in South Dakota?
Nikki Ducheneaux is a lawyer for the Cheyenne River Sioux Tribe, and a tribal member. She says it comes down to politics.
"The governor of South Dakota is a very close friend of President Trump. She felt that our exercise of our sovereignty was an affront to her authority over the state."
Noem acknowledges that COVID-19 exists and has said her state’s response has been effective. In an op-ed in the Rapid City Journal she wrote that individual Americans should have the freedom to choose whether to use masks and other COVID-19 precautions — a statement that mirrors the White House’s approach to the pandemic.
As COVID-19 cases spike across the country, tribes continue to implement some of the strictest measures in the nation.
In June the Cheyenne River Sioux sued the federal government for pressuring them to take down the checkpoints. Ducheneaux is working on that ongoing lawsuit. She says when tribes back their sovereign rights with legal action, it reinforces the power they have to govern themselves.
"The exercise of our sovereign authority is really the strongest weapon that we have at our disposal."