Note: This article is part of the project: "Indigenous Impacts: How Native American communities are responding to COVID-19." We invite you to view the entire project here.
SIOUX FALLS, S.D. — Since April, several South Dakota Indigenous tribes have enforced more than a handful of checkpoints on roads leading into their reservations, fighting to keep COVID-19 at bay.
The checkpoints set up by the Oglala Sioux Tribe and the Cheyenne River Sioux Tribe have become a central flashpoint in the relationship between the tribes and both state and federal officials, as both South Dakota and the Trump administration have insisted the tribes close the checkpoints down, to no avail.
The checkpoint battle has thrown into sharp relief the complex jurisdictional lines that shape the relationship between sovereign Indigenous tribes and federal and state governments. Meanwhile tribal relations officials in nearby states practically sigh in relief over the relative lack of strife in their own state-tribal relationships.
Scott Davis, executive director of the North Dakota Indian Affairs Commission, said North Dakota's approach has focused on collaboration over conflict, with a heavy push for dozens of mass testing events coordinated with the tribes.
“It’s never been (Gov. Doug Burgum’s) point to tell the tribes what to do or not to do, unlike the road checkpoints in South Dakota. We never got into that,” said Davis, a member of the Standing Rock Sioux Tribe and descendent of the Turtle Mountain Band of Chippewa. “For us, it’s, let’s not concentrate on the road. Let’s concentrate on these testing events. Let’s put our resources there, versus putting up a checkpoint."
Forum News Service requested an interview with Dave Flute, secretary of the South Dakota Department of Tribal Relations about the state's relations with the tribes, and was asked to instead submit questions via email for review. Those submitted questions went unanswered.
State vs. federal relationships
Indigenous tribes in the U.S. have a unique political and legal status, reflected in the complex set of relationships tribes have with federal and state governments.
Tribes are sovereign, which means they can manage their own affairs. But central to the federal government's unique relationship with tribal governments is its trust responsibility, bound by the treaties and agreements it signed with tribes.
It must respect their sovereignty but also protect tribes and the rights of tribal members, who are U.S. citizens and can vote in all relevant elections.
However, the federal government has a long, troubled history of breaking treaties with tribes, subdividing and taking tribal lands in a concerted effort to squelch Native culture, as detailed in testimony provided by the National Indian Health Board to the U.S. Commission on Civil Rights during a July briefing on COVID-19 and the impact of broken federal promises to Native Americans.
"It is a legal history fraught with encroachments on Tribal sovereignty, lack of respect for our traditions and cultures, including government programs designed and implemented to destroy native language, tradition, religion, culture and identity," the NIHB write.
The U.S. Bureau of Indian Affairs is the federal government’s primary agency for working with tribes, although numerous other federal agencies regularly work with tribal governments.
States’ relationship with tribes is very different. While they can maintain government-to-government relationships with tribes, they have no express authority over tribes.
While tribes and state (and local) governments frequently cooperate on matters of mutual interest, tribes can and do have the right to enact their own laws, ones that may be quite different than those in a surrounding state, adjacent county or nearby city.
Many state governments have created state agencies and standing legislative committees to maintain government-to-government relationships with tribes, funnel resources and work together on areas of mutual interest, such as during times of public health emergency like the COVID-19 pandemic.
Checkpoint fight goes to court
South Dakota’s tribal relations have been rocky as of late, even as the state works closely with the nine tribes who call reservations within the state home.
Gov. Kristi Noem’s office recently rejected a regular invitation for her or her staffers to attend the state Legislature’s South Dakota State-Tribal Relations Committee meeting on Aug. 27, with spokesman Ian Fury telling the Sioux Falls Argus Leader they were declining the offer based on how Flute, Noem's Tribal Relations secretary, had been treated at past meetings.
A major discussion topic: the checkpoints Noem has resisted since tribes erected them in April. In early May, Noem demanded tribal checkpoints on state and federal highways be removed within 48 hours, saying the tribes were unlawfully turning people away.
The tribes refused and called on Noem to respect their sovereignty and understand they were simply trying to protect their population from COVID-19 after Noem spurned statewide restrictions to limit a potential coronavirus surge.
"We will not apologize for being an island of safety in a sea of uncertainty and death," said Harold Frazier, chairman of the Cheyenne River Sioux Tribe, in a statement.
Noem appealed to federal authorities, who also pressured the tribes to remove the checkpoints. In response, the Cheyenne River Sioux Tribe sued President Donald Trump and top administration officials in U.S. District Court in Washington, D.C., for alleged threats to the tribe over the checkpoints. That suit remains pending.
"They don't have the jurisdiction to set up the checkpoints where they set them up, and I don't have the authority to stop them," Noem told an Aug. 31 Sioux Falls Rotary gathering, saying it's up to the federal government to keep the roads open.
Communication always a top concern
While in South Dakota, Noem and some administration leaders may have avoided meeting with lawmakers and tribal chairpeople at the South Dakota State-Tribal Relations Committee, other state officials regularly work closely with the tribes in a variety of areas, most notably the Department of Health with Indian Health Service and tribal leaders.
Still, communication, or the lack thereof, between state and tribal governments at high levels remains an issue.
"(Cheyenne River Sioux Tribe) Chairman Frazier has my cell phone number, and we used to talk all the time — not so much lately," said Noem to the Sioux Falls Rotary meeting Aug. 31.
In Minnesota, tribal leaders meet regularly via conference call with Gov. Tim Walz’s office, said Shannon Geshick, executive director of the Minnesota Indian Affairs Council.
In fact, what was once a daily call about COVID-19 is now a couple-times-a-week call, said Geshick, who is a citizen of the Bois Forte Band of Chippewa. But the communication remains solid, she said, pointing out that Walz’s lieutenant governor, notably, is Peggy Flanagan, a member of the White Earth Band of Ojibwe.
“There’s that free-flowing line of communication that’s super important,” she said. “I’ve got to give credit to the governor because he’s been open to that, much more open than any other governor has been.”
While Geshick is technically a state employee, 10 of the state's 11 tribal leaders make up her executive board, making the Minnesota Indian Affairs Council a very collaborative affair between tribal leaders and state leaders.
“At the end of the day, we’re State of Minnesota employees, but it’s a really interesting intersection, and it works. It works right now,” she said. “Our entire mission is to help promote sovereignty and make sure that all of the American Indian citizens in the state are getting access to what they need access to."
In North Dakota, there have been some recent rocky times between the tribes and the state government, specifically the fight over the Dakota Access Pipeline, which has gone from playing out on the frozen prairie to the courts.
But the pandemic has brought the tribes and the state government together, with the efforts healing some wounds, said Davis, the North Dakota Indian Affairs Commission executive director.
“We had our time when we were both hurt on both sides, but we knew that healing would have to come, and we’d have to get back to business and be good relatives, and we’ve done that,” he said. “Here this pandemic came along and it was a very easy transition to be communicating resources between the state, and the tribes and the feds, on how we’re going to work together on keeping people healthy.”
But that doesn’t mean the conversation has always been without friction. News that the Centers for Disease Control and Prevention wanted to work with North Dakota on a pilot program for future COVID-19 vaccine distribution raised alarm bells among many tribes and spread like wildfire on Facebook.
“There was a lot of rumors, terrible, terrible rumors, and I had to call it out,” Davis said. “This is not an experiment. This is not a vaccine trial. It’s not, there’s no testing on our people at all.”