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Noem Spins Lawsuit Threat as Search for Legal Clarity, Fails Fact Check on Keystone XL Crossing of Tribal Land

Governor Kristi Noem hasn’t actually said that she emptily threatened to sue the Cheyenne River Sioux and Oglala Sioux tribes over their coronavirus checkpoints because she’s worried those safety measures (recently adopted by the Rosebud Sioux Tribe) could morph into tribal blockades against Keystone XL-related traffic. But she maintains she threw her hissy fit to draw attention not to herself but to legal questions about future situations involving tribal control of travel through their lands:

The governor said she doesn’t regret it because “it’s very important that we have clarity in this area to make sure that we are upholding the law and we know whose jurisdiction is in each situation that these checkpoints are in.”

“With every action that we take and that the tribes take, they’re setting precedent, so we can’t just look at this situation in a virus and a pandemic,” Noem continued. “If we allow checkpoints to shut down traffic in this situation then we are setting precedent for that to happen far into the future in many other situations as well” [Arielle Zionts, “Noem Declines to Say If Checkpint Issue Connected to KXL Pipeline as Man Camp Gets Built,” Rapid City Journal, 2020.05.21].

Funny—the only legal clarity we’ve gotten so far is that the tribes have sovereignty that the Governor, or at least her legal advisors, recognize that she can’t successfully challenge in court.

Also clear is Noem’s failure to grasp legal precedent already set concerning the Keystone XL pipeline’s intrusion on American Indian land:

“Well, I would just remind everybody that pipeline is not going to cross any tribal land or reservation areas,” that was what South Dakota Governor Kristi Noem said on Thursday in a press conference. Back in April, I have interviewed an attorney regarding Keystone XL Pipeline issues after one permit was cancelled by a judge. “TransCanada has now admitted that it will be crossing Rosebud lands that are held in trust,” said Matthew Campbell, an attorney with Native American Rights Fund.

TransCanada, or TC Energy, is the corporation that is constructing the pipeline. In February, the energy company has confirmed the crossing into tribal properties, which was stated in the company’s court filing, according to Native American Rights Fund.

“TC Energy has already admitted that, it’s not in dispute anymore,” Natalie Landreth, a Native American Rights Fund senior attorney says of Gov. Noem’s comment. Landreth points out, there are actually a few other aspects that also show KXL Pipeline affecting tribal lands, such as the corridor of areas of potential effect also crosses tribal properties. Another aspect, Landreth says, is the water source for the tribe will also be impacted. “This pipeline goes straight through the Ogallala Aquifer and the Missouri River…. And the Tribe has not consented to none of these crossing.” Landreth explains, the boundary of all lands owned or held in trust for Rosebud is set in 1889. “That’s the boundary you look at… Not Todd County” [Chiu-Yi Lin, “Gov. Noem’s Comment on Keystone XL Pipeline Controversial,” KOTA-TV, 2020.05.24].

(Hey, Chiu-Yi! The word you’re looking for is not controversial, but incorrect.)

Apparently worried that her hoped-for patron in the White House may be losing interest, Noem has written a letter to Donald Trump asking him to investigate the tribal checkpoints. The letter seems to re-flip-flop her flip-flop signal to the tribes that she is willing to talk to resolve her checkpoint concerns.

TransCanada/TC Energy has finished the border-crossing chunk of Keystone XL in Montana and is building a work camp north of Philip, even though a federal court has canceled TransCanada’s water-crossing permit, putting another delay in pipeline construction.

Update 07:53 CDT: Governor Noem is using the state’s coronavirus information page to post her propaganda about the tribal checkpoints. The page includes no up-front information about where the checkpoints are, what travelers can expect, and alternative routes they may consider if they want to avoid intruding on sovereign Lakota lands; it just documents her thus far feckless whining about tribal authorities working harder to prevent the spread of coronavirus than she has.


  1. mike from iowa 2020-05-25

    future situations involving tribal control of travel through their lands:

    Peers to this old coon, them there words are self explanatory. But, then, I am not a goofy wingnut.

  2. Loren 2020-05-25

    If she was just “looking for clarity,” couldn’t that have been done with a couple of phone calls rather than a threat to the Sioux Nation on national TV? But, that is pretty much what you’d expect from the Drama Queen.

  3. Sdslim 2020-05-25

    She is so far up Trumps A$$, she can’t see daylight. Everything she has done on this front, all the Covid-19 actions, are a mirror of what the Donald wants done. To hell with the people that elected her, the people of SD, She knows more than we do. That could be a reason for her below 50% approval rating.

  4. Debbo 2020-05-25

    So many governors have high approval ratings now due to their handling of the pandemic. Kruel Kristi could get the hint that South Dakotans are not impressed with what she’s doing. Thing is, she doesn’t care about them. Her focus is on kissing a certain buffoonish behind to get a job in DC.

    SD, you could have elected a very good governor named Sutton, but no. You brought this on yourselves.

  5. Marnie 2020-05-25

    How she is responding to the pandemic is exactly how she will respond when the pipeline leaks and spills. She’ll use the increase in crime that comes with the mancamps to increase enforcement.

    As far as I can tell, the issues regarding pipelines have not been addressed – egregiously inadequate bonding, faulty monitoring systems and inadequate response.

    In the case of the Kalamazoo tar sands spill, they didn’t even know that tar sands responds differently in water. Their response was not just inadequate it did could not clean up the tar sands.

    I don’t have time here to list the decades of spills and accidents on gas distribution lines and oil pipelines not only in the U.S. but all over the world. Transcanda has a yearly spill somewhere in Canada starting with North Bay Ontario in the early 60’s.

    So for the U.S., let’s just talk about 2010-2013, according to a WSJ review which found 1400 pipeline spills and 4 out of 5 accidents are discovered by local residents, not the company’s that own the pipelines.
    The costs in property damages are staggering – in the hundreds of millions from 1994-2013 but combined they are in the billions.

  6. John 2020-05-25

    Great comments, above.
    Excuse hijacking the thread.
    The regents are looking for an executive director. They made the job requirements ‘less stringent’ – whatever that means. They better include at least 2 considerations.
    1) How to deal with the current and potential COVID infections among staff, families, and students. The Huron school superintendent says they have student infections from kindergarten to 12th grade. Certainly this will occur in tech & university schools. Recall the COVID infections first arrived in Beadle County from non-recent immigrants.

    2) The larger challenge may be the future of SD higher education. After 5 decades of stagnation – it’s finally hitting the wall of change. And it will change. It’s likely our students will be able to receive remote schooling from a Tier 1 or better Tier 2 university without the expense of traveling and physical out-of-state attendance. Professor Scott Galloway makes the case that change will begin within weeks. Because it has to. Parents will not tolerate paying the same tuition, fees, and costs for Zoom education. California is finally killing the regrettable monopoly the College Board has on standardized testing by banning them through 2024. Burn. It. Down.

  7. Fanchon Reinhard 2020-05-30

    Does this b—- ever quit. Her position is too much for her. Bit off more than she could handle. Lol CRST chairman asked her to do something and she refused so he did to protect his people and is a success story still. Made Noem look bad and he wasnt even trying. Lololll step down and run for school board, thats more your pace. Your frustrations are eating you alive.

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