Seventeen legislators have signed a letter to Governor Kristi Noem telling her to drop her demand that the Cheyenne River Sioux Tribe and Oglala Sioux Tribe remove their coronavirus protection checkpoints from highways entering their reservations. The letter, dated May 9, defends the tribal public health interventions as legal under treaty, federal law, and case law:
The case to which the legislators refer appears to be Rosebud Sioux Tribe v. State of South Dakota (1990), in which the Eighth Circuit held that “Absent tribal consent… the State of South Dakota has no jurisdiction over the highways running through Indian lands in the state.” The court began its ruling by quoting the following passage from the South Dakota Constitution, a passage so nice we wrote it twice, in Article 22 and Article 26:
…we, the people inhabiting the state of South Dakota, do agree and declare that we forever disclaim all right and title to the unappropriated public lands lying within the boundary of South Dakota, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States; and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States… [excerpt, South Dakota Constitution, Article 22 and Article 26 Section 18].
Subsequent federal law opened the door for the tribes to cede jurisdiction, but the Governor of South Dakota cannot impose state jurisdiction on Indian land without tribal consent. Given Governor Noem’s antagonistic stance toward the tribes and the deep and justified historical fears Native people harbor of white folks bringing disease, it’s unlikely any such tribal consent will materialize. Governor Noem is threatening to sue the tribes, but shaking her Jason Ravnsborg doll at the tribes will inspire tremblings of laughter, not fear.
Tribal communities are more remote, have less access to health care, and have many members who are more susceptible to illness. The tribes thus have a keen interest in taking stronger measures than Governor Noem to stop the spread of coronavirus. The legislators standing up for that Indian sensibility include all sixteen members of the Democratic caucus and one Republican, Rep. Tamara St. John of Sisseton.