Citizens of the Oglala Sioux Tribe man a checkpoint on the Pine Ridge Reservation in South Dakota on May 10, 2020. Photo courtesy Anna Halverson

Alexander Mallory: Tribes have full legal authority to use checkpoints to safeguard health

Note: This opinion was originally published by The Omaha World-Herald on May 13, 2020.

South Dakota Gov. Kristi Noem should commend the recent checkpoints implemented by Native American tribes to protect their nations from a COVID-19 outbreak, not condemn them with threats of legal action.

On April 2, the Cheyenne River Sioux Tribe implemented checkpoints on U.S. Highway 212 in efforts to mitigate and respond to the spread of COVID-19. [See: 25 CFR 170.114(a)] The Oglala Sioux Tribe implemented similar checkpoints in mid-March. These safety measures are crucial to the health and wellness of their tribal citizens, especially in light of Gov. Noem’s questionable handling of the COVID-19 crisis.

On May 8, Gov. Noem sent letters to both tribes that demanded these checkpoints be removed or she threatened to take legal action against the tribes. She points to a Department of Interior memo that states tribes must consult and reach an agreement with the state before closing or restricting travel on state or U.S. highways

Regardless of what the DOI memo suggests or the cited regulation, Justice Ruth Ginsburg writing for the Supreme Court in Strate v. A-1 Contractors, assured that tribes have regulatory authority for conduct that threatens or has some direct effect on the health or welfare of the tribe, even when that conduct occurs on public highways, and even if that conduct is perpetrated by non-Indians. While the threat cannot be abstract, COVID-19 and its asymptomatic carriers are no abstract threat.

The facts in Strate involved a careless driver on a public highway running through a reservation. The court acknowledged negligent drivers do endanger all in the vicinity, and jeopardize the safety of tribal members. But the court also said that if the health and welfare exception required no more, the exception would severely shrink the rule. Thus, since the court found the exception did not apply to those facts, the tribe did not have civil jurisdiction to adjudicate the matter.

The facts here present a different story. Unlike the threat of some careless drivers on a public highway, the potential spread of COVID-19 to a rural tribal community unquestionably involves a direct effect on the health or welfare of the tribe. Indeed, it’s no secret that COVID-19 cases and deaths continue to rise in South Dakota. Moreover, these tribes are located in rural areas with limited access to testing, treatment, and healthcare.

This situation reminds me of a quote from United States v. Kagama where Justice Samuel Miller pronounced states as “the deadliest enemies of tribes.” Gov. Noem can fight COVID-19 however she prefers, but her threats against these tribal nations exercising their sovereign rights and legal authority are, at best, misguided and, at worst, a reinforcement of Justice Miller’s words that states remain “the deadliest enemies of tribes.” May it not be so.

Alexander Mallory is from the Winnebago Tribe of Nebraska. He currently works as an Attorney Advisor in Dallas, Texas, through the United States Department of Justice Honors Program. The views expressed in this article are those of the author and do not represent the official policy or position of the U.S. Department of Justice, the U.S. government or of the Winnebago Tribe.

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