Introduction

The coronavirus pandemic has disproportionately affected Native American communities.^[1] Unfortunately, the federally recognized Tribal Nations have been limited in their ability to implement mitigation measures within their own boundaries due to state interference and the tribes’ historic lack of ability to regulate the behavior of non-tribal members within reservation boundaries in most situations.^[2] Since European colonization, Native Americans have struggled to maintain sovereignty over their land.^[3] The few land usage and sovereignty rights they initially maintained through various treaties have often been eroded by various contracts and legislation, often not in good faith.^[4] This lack of ability to fully self-govern, combined with what some Native Americans categorize as a lack of promised support and resources from the government, has contributed to high rates of long-term health issues like diabetes and heart problems in Native American populations.^[5]

The COVID-19 pandemic exasperated these issues and brought them to the forefront of the public’s awareness as a result. According to the Centers for Disease Control and Prevention (CDC), American Indians and Alaskan Natives appear to be disproportionately affected by the pandemic.^[6] The cumulative incidence of laboratory confirmed COVID-19 cases among Indigenous Americans was 3.5 times than that among non-Hispanic white people.^[7] Surprisingly, even though American Indian and Alaska Native persons account for just 0.7 percent of the United States population, an analysis indicated 1.3 percent of the COVID-19 cases reported to the CDC with known race and ethnicity were of American Indian or Alaskan Native peoples.^[8] In South Dakota, Native Americans, which include the populations of nine federally recognized tribes,^[9] account for nine percent of the population.^[10] Yet, as of June 2021, they accounted for 13 percent of all COVID-19 cases and 15 percent of deaths.^[11] Native Americans also disproportionately suffer from conditions that the CDC asserts definitively put people in the “high risk” category for COVID-19.^[12]

In an effort to prevent rapid spread on their reservations, the Cheyenne River Sioux and Oglala Sioux set up traffic checkpoints on roads around the entry-points of their territories to track and potentially bar entry to their reservations.^[13] Despite backlash from local politicians, South Dakota Governor Kristi Noem took issue with the checkpoints, claiming they interfered with traffic and commerce.^[14] Noem wrote letters to the Cheyenne River Sioux and Oglala Sioux’s leaders threatening legal action if the checkpoints were not taken down within 48 hours.^[15] She did not take legal action.^[16] This began a very public back-and-forth between the tribal leaders and the governor, which lead to no compromise. The checkpoints remained. Noem eventually wrote to the White House asking for aid in the matter,^[17] relaying to news outlets that the conflict over the checkpoints was then a federal issue.^[18]

Harold Frazier, the current chairman of the Cheyenne River Sioux Tribe, then began discussions with several government officials regarding the legality of the checkpoints.^[19] Frazier maintained he would not remove the checkpoints, but was willing to work with the White House’s suggestions to modify the checkpoints in order to comply with the White House’s wishes.^[20] After a failure to reach a compromise, the Cheyenne River Sioux filed a complaint for injunctive and declaratory relief on June 23, 2020 against President Donald Trump and several other White House officials for their failure to recognize the Cheyenne River Sioux Tribe’s right to self-governance.^[21] The Cheyenne River Sioux Tribe claims the officials attempted to coerce the Tribe into taking down the checkpoints by threatening to pull healthcare and coronavirus relief funding.^[22] The Cheyenne River Sioux also claims the officials threatened to breach law enforcement contracts with the Tribe. The Cheyenne River Sioux claims all this is a violation of several treaties, Congressional acts, and judicial precedent.^[23] President Trump’s administration filed a motion to dismiss on August 9th, 2020.^[24] As of late November, the Cheyenne River Sioux Tribe had yet to file a response and asked for three separate extensions, in part because tribal officials have had difficulties being active with their attorneys while also mitigating the rising issue of COVID-19 cases within their communities.^[25] In early December, the court granted the Tribe’s motion to stay proceedings pending a final decision by the Interior Board of Indian Appeals regarding the law enforcement services contract that was the subject of the Cheyenne River Sioux Tribe’s litigation.^[26] The case remains stayed pending a final decision by the department of the interior or settlement. The checkpoints the Cheyenne River Sioux implemented remained until March 18, 2021 due to decreased cases and vaccine rollout. ^[27]

The White House’s resistance to recognize Native sovereignty is part of a historic reluctance and sometimes failure on the part of the government to uphold its end of treaty bargains. But, there has been a recent surge in popularity of the notion of construing some of the original treaties between the United States and Native Americans as intended.^[28] Justice Gorsuch recently utilized this approach in McGirt v. Oklahoma, where the Supreme Court affirmed that the original boundaries of 19th century treaties with the Creek Nation still stand, despite the government’s allotment of the land and Oklahoma traditionally not recognizing those boundaries for criminal jurisdiction purposes.^[29] If this trend continues, it would grant Native American communities a higher level of sovereignty over the land that was subsequently taken away through other treaties, allotments, and unfair deals.^[30] This higher level of sovereignty is a crucial tool for Native American communities to have in the effort to mitigate the pandemic within their communities, especially if there is a continued lack of healthcare resources provided by the federal government. Congress should also enact legislation that provides guidance to Tribal Nations and states on the extent of tribal authority to regulate non-tribal member behavior within reservations to help slow the spread of the virus and better prepare for future outbreaks and variant surges.

This paper will first provide background for the series of events leading up the checkpoints and the Cheyenne River Sioux’s filing of a complaint for injunctive and declaratory relief. Additionally, the paper will provide an overview of Chairman Frazier’s implementation of the checkpoints, Governor Noem’s complaints, and the public back-and-forth between the Cheyenne River Sioux Tribe and both state and federal officials.

The paper will then briefly explain the general history of Native American healthcare in the United States and of the treaties and subsequent tribal laws relevant to the Cheyenne River Sioux Tribe’s claim. Then, the paper will discuss the federal tribal law implications of McGirt v. Oklahoma and other tribal case law trends. Lastly, the paper will discuss recommendations for steps the United States can take to alleviate the disproportional burden the coronavirus pandemic has caused to Native American communities.

I. Overview of the COVID-19 Pandemic in South Dakota

COVID-19 was first reported on December 31, 2019 in Wuhan China.^[31] Every state enacted a state of emergency in response to the spread of the coronavirus within the first few months of 2020.^[32] By March, most states had taken measures to mitigate the spread of the virus in the form of enacting lockdowns, shut downs, and quarantines.^[33] However, a few states either did so reluctantly or chose not to at all, deciding to prioritize keeping business open to benefit the economy.^[34] As of September 25, 2020, South Dakota had no coronavirus restrictions in place.^[35] There were no local orders for non-tribal areas either.^[36] Noem has been adamant that she has no plans to enact either a mask mandate or a stay-at-home order, despite an increase in cases in South Dakota.^[37] Noem has even gone so far as to categorize the concept of lockdowns as “draconian” in response to criticism of her handling of the pandemic.^[38] There have been at least 124,343 cases and 2,026 deaths in South Dakota since the beginning of the pandemic.^[39] The state has a population estimated at 858,469.^[40]

A. Cheyenne River Sioux Tribe’s Pandemic Response

1. Preparations

In contrast, leaders in South Dakota began making preparations for the pandemic before the state declared a state of emergency. Over the summer of 2020, the Cheyenne River Sioux’s tribal officials imposed mask mandates and held mass testing events,^[41] while the South Dakota Governor continually refused to enact any such mandates.^[42] This inaction left the Cheyenne River Sioux Tribe’s officials feeling as though they needed to take extra mitigation measures internally to prevent the spread of the virus on their reservation.^[43]

2. Basis for Heightened Concern

The Cheyenne River Sioux Tribe was so proactive partly out of concern that they did not have the resources within or nearby their reservation to handle a pandemic. For example, the Cheyenne River Sioux Tribe has no Intensive Care Unit on the reservation, less than ten ventilators, and only eight hospital beds. The nearest hospital is hours away.^[44] By late November, all eight beds were filled, leading to the creation of makeshift beds in hotels, bingo halls,^[45] and college dormitories.^[46]

The Cheyenne River Sioux Tribe also cited the vast and isolated nature of their territory as reason for heightened concern.^[47] In the early days of the pandemic, the Cheyenne River Sioux analyzed how much of the population they could support if the infection trends continued. They decided they simply did not have the capacity to provide the adequate support to handle a major outbreak on their reservation.^[48]

Additionally, the Cheyenne River Sioux Tribe felt there was a precedent of the federal government ignoring the health needs of Native Americans despite treaty obligations to provide support,^[49] and they sought to avoid the need for aid.^[50] Frazier stated coronavirus “was not [their] first rodeo” in terms of self-reliance in the face of hardship.^[51] The Cheyenne River Sioux Tribe began its response in early March by setting up food delivery resources and enacting quarantine orders.^[52] According to the Cheyenne River Sioux Tribe, it appears they were right to be worried, as the eight billion dollars in federal funding for COVID-19 relief promised to federally recognized tribes by the Coronavirus Aid, Relieve, and Economic Security Act (CARES) was months late.^[53]

B. Checkpoint Implementation and Controversy

The Cheyenne River Sioux and Oglala Sioux set up checkpoints in April 2020 in an effort to keep coronavirus out of their territories.^[54] At each checkpoint, the Cheyenne River Sioux and Oglala Sioux citizens monitored and traced the individuals who attempt to enter their reservations.^[55] The vehicles were stopped and asked questions about COVID-19 symptoms, their destination, personal information, and recent travel.^[56] A determination was then made regarding whether the individuals could enter based on their answers.^[57] Chairman Frazier claims the process took no more than a minute and a half.^[58] Most motorists were allowed through, but people coming in from or who had recently traveled to coronavirus “hot spots” were sometimes asked to reroute their travel plans around the reservations.^[59] There were permits available for certain categories of frequent visitors to the reservation, and essential workers, like medical personal and agricultural workers, were always allowed through.^[60]

The Cheyenne River Sioux Tribe claimed these “Health Safety Checkpoints” allowed them to keep the rate of infection “significantly” lower than the rest of the state.^[61] As of June 23, 2020, the Cheyenne River Sioux had no deaths from coronavirus.^[62] Additionally, Chairman Frazier claimed the Cheyenne River Sioux Tribe was able to trace the cases they did have more effectively because of the checkpoints.^[63]

Governor Noem took issue with how the Cheyenne River Sioux and Oglala Sioux chose to mitigate the spread of the virus within their own territory.^[64] At Governor Noem’s request, the United States Department of the Interior reprimanded the Cheyenne River Sioux Tribe for not consulting with South Dakota on the checkpoints.^[65] Governor Noem then demanded the checkpoints be removed in May and threatened officials with legal action if they were not. ^[66] She also threatened to pull health and law enforcement funding.^[67]

After some back-and-forth between Chairman Frazier and the Governor, Noem eventually wrote to the White House for federal assistance in shutting down the checkpoints in a letter in which she claimed the checkpoints violated easements, were a breach of law enforcement contracts, and interfered with interstate commerce.^[68]

Since this letter, the Cheyenne River Sioux Tribe has claimed the federal government has worked to “coerce the tribe to dismantle its comprehensive coronavirus plan” and shut down the checkpoints.^[69] The Cheyenne River Sioux Tribe asserted this coercion is not only a violation of their tribal sovereignty granted to them by various treaties and agreements, but it also puts their tribal members at risk of “imminent” harm.^[70]

The correspondence between the White House and Chairman Frazier lasted between late May and early June. ^[71] White House officials initially indicated to Chairman Frazier their main concern was that the people operating the checkpoints were holding themselves out to be deputized law enforcement officers, and that indicated a breach of the Cheyenne River Sioux Tribe’s P.L. 93-638 law enforcement contract.^[72] White House officials then threatened the reassumption of that contract.^[73] White House Chief of Staff Mark Meadows threatened to pull tribal coronavirus relief funding set aside in the CARES Act should the checkpoints remain up.^[74]

Chairman Frazier maintained that the checkpoints would not come down but expressed a willingness to modify the checkpoints to ensure the operators of the checkpoints weren’t holding themselves out as deputized officers.^[75] The Cheyenne River Sioux Tribe also indicated that there was no violation of the contract because the operators were not employed under P.L. 93-638.^[76] The Department of Indian Affairs Assistant Secretary Sweeney appeared to praise the Cheyenne River Sioux Tribe’s efforts to compromise.^[77] Chairman Frazier understood this to mean the matter was on the way to being resolved if they continued to make adjustments to how the operators ran the checkpoints to further comply with the P.L. 93-638 contract.^[78]

However, White House officials maintained their request that the checkpoints be dismantled, at least until the Cheyenne River Sioux consulted with South Dakota.^[79] They again threatened emergency reassumption of the law enforcement contract.^[80] In their motion to dismiss, the Justice Department asserted that the Cheyenne River Sioux Tribe’s lawsuit is a challenge to a “hypothetical” resumption action that “may never occur.”^[81] Therefore, they claim there is no standing.^[82]

II. Impact on Native American Communities

A. Impact on the Cheyenne River Sioux Tribe

The checkpoints appear to have at least contributed in part to the relative success of the containment of the virus on the reservation, despite skepticism from government officials.^[83] The CDC has acknowledged that the Native American population has a significantly higher rate of infection than the non-Native population in the United States in part due to underlying health conditions.^[84]

The Cheyenne River Sioux Tribe noted racial discrimination plays a factor in their higher infection rates.^[85] They also pointed to their high unemployment and poverty rates that force Native Americans to work outside the home during the pandemic and increases the likelihood of exposure.^[86] Despite these adverse factors, the Cheyenne River Sioux Tribe reported 6 deaths on their reservation as of fall 2020,^[87] which coincided with a record breaking national spike in cases.^[88] However, Remi Bald Eagle, the intergovernmental affairs coordinator for the Cheyenne River Sioux Tribe, asserts that the spike in cases on the reservation in the final months of 2020 was due to the non-tribal members who own land and live within the reservation not obeying mask orders.^[89] Unfortunately, Tribal Nations can currently do little to regulate the behavior of non-members on their land in most situations. ^[90] However, there are narrow exceptions that are potentially relevant to pandemic control that will be discussed later in this paper.^[91]

B. Crisis in the Navajo Nation

In contrast to the Cheyenne River Sioux Tribe, the Navajo Nation had more coronavirus deaths than any U.S state in the early stages of the pandemic.^[92] Caitlynn Mayhew, a former member of the Cove community within the Navajo Nation, also pointed to lack of preexisting infrastructure, historic underfunding, continually broken agreements with the federal government, and racism as reasons for the disproportionate amount of deaths and positive cases in her community.^[93] The President of the Navajo Nation, Jonathan Nez, blamed the slow response of the federal government to send aid, despite years of requests for increased medical funding by civil rights groups and congressional committees.^[94] Unsurprisingly, Chairman Frazier has pointed to the dim situation in the Navajo Nation as another factor in their decision to maintain their coronavirus checkpoints.^[95] The Cheyenne River Sioux are a smaller community with even less resources.

III. Native American Land-Autonomy, Healthcare, and Relevant Bodies of Law

A. Background

The National Congress of American Indians (NCAI) assert that the “connection between Native people and their land and natural resources is at the heart of their advocacy work.”^[96] Unfortunately, Governor Noem’s complaints and the Trump Administration’s alleged coercion is part of a long, 500-year history of diminishing Native American land autonomy.

The Cheyenne River Sioux Tribe cites to several bodies of law in their initial complaint that they claim support the legality of their checkpoint implementation and the illegality of the behavior of various government officials against the Cheyenne River Sioux Tribe.^[97] This section will provide an overview of some of these bodies of law, including the 1868 Treaty of Fort Laramie.^[98] The remainder of this section will discuss the history of the “Trust Doctrine” and the federal government’s obligation to provide healthcare for the Native American communities. This section will also provide context for the conflicts in federal tribal law discussed later in the paper.

1. General Allotment Act of 1887, or the Dawes Act

The Dawes Act was both an attempt by the federal government to allow non-Native Americans access to and the opportunity to purchase traditionally tribal lands^[99] and an attempt to break up Native Americans’ sense of community.^[100] The Dawes Act broke tribal land up into “allotments.” Each head of the Native American families who chose to participate (those who did not were kicked off of their land and refused citizenship) received 160 acres of land, and individuals could receive 80 acres.^[101] Though an initiative of the Dawes Act was to encourage Native Americans to adopt a type of agricultural life more palatable to white Americans, again in an attempt to sever Native Americans from their communal cultural practices, Native Americans received the lands least suited to agriculture.^[102] Native Americans could not sell or lease their land without governmental permission.^[103] The lands were held in trust for 25 years, after which Native Americans would receive a fee simple title to their land.^[104] However, Native Americans lost the vast majority of the land they held before the enactment of the Dawes Act.^[105]

Prior to the allotment process, Native American communities held roughly 138,000,000 acres of reservation land.^[106] Their reservation lands had been reduced to 48,000,000 acres after allotment.^[107] The remaining lands that the federal government acquired were largely sold to white owners for agricultural, mining, railroads, and other development purposes,^[108] with some being leased by the government for agricultural and mining endeavors.^[109]

The Sioux peoples were especially affected. Only two days after allotment began, five thousand “settlers” rushed across the Sioux border in South Dakota to lay claim to the best pieces of land, while the less desirable land was left to the Sioux.^[110] Given the sudden, literally overnight change to a foreign type of agricultural lifestyle, coupled with the difficult to cultivate land allotments, the Sioux in South Dakota were left particularly vulnerable.^[111]

2. 1868 Treaty of Fort Laramie

The 1868 Treaty of Fort Laramie was between the United States and a group of Native American communities historically referred to collectively as the Sioux.^[112] This treaty established the Great Sioux Reservation.^[113] The Cheyenne River Sioux Tribe repeatedly cites this treaty in their complaint for injunctive and declaratory relief.^[114] They note that, in exchange for mutual peace^[115] and the forfeiture of Sioux Nation land, this treaty provides that “If bad men among the whites, or other people subject to the authority of the United States…shall commit any wrong upon the person or property of the Indians, the United States will, upon proof made to the agent [sic]… proceed at once to cause the offender to be arrested and punished according to the United States and to reimburse the injured person for the loss sustained.”^[116]

The United States Supreme Court has interpreted this portion of the 1868 Treaty of Fort Laramie as creating an express trust duty on the United States to aid in law enforcement and protection measures for the Sioux people.^[117] The Cheyenne River Sioux Tribe asserts that this treaty is a substantive source of law that imposes a duty on the United States to provide the Cheyenne River Sioux Tribe with public safety services.^[118] This paper will contend in a later section that this treaty also supports the sovereign ability for the various governments whose reservations were created by this treaty to regulate the behavior of non-members attempting to pass through or who already live on reservation land during the coronavirus pandemic.

The 1868 Treaty of Fort Laramie lasted as both parties originally intended for about six years, at which time gold was discovered in the Black Hills, an area originally within the Sioux Nation boundaries.^[119] This incited a gold rush.^[120] In 1877, Congress redrew the reservation boundaries of the initial treaty and allowed the U.S to build roads through reservation lands.^[121] The objective was to seize the now valuable Black Hills from the Sioux people.^[122] In 1980, more than 100 years later, the United States Supreme Court acknowledged that the treaty was unlawfully violated, and that the Sioux Nation deserved compensation in the millions.^[123] However, the Sioux refused the money.^[124] Chief John Spotted Tail, who works for the president of the Rosebud Sioux Tribe and is a descendent of one of the original signers of the Fort Laramie Treaty, asserts that “[the Sioux would] like to see that land back.”^[125] They are uninterested in compensation equating to the selling of the Black Hills because they maintain the land is still theirs by sovereign right.^[126]

B. The Trust Doctrine and Healthcare

As the virus raged on in the United States, and in record-breaking numbers in South Dakota,^[127] the Cheyenne River Sioux felt vulnerable and trapped in a locale that seemingly cares more for perceived personal liberty and commerce than the health of its residents. Unfortunately, as Chairman Frazier pointed out in his explanation of the Cheyenne River Sioux Tribe’s reasoning behind the checkpoints, this position of vulnerability due to a lack of control over their own resources, land, and policies is not new. This lack of control coupled with the failed efforts of the federal government to provide adequate healthcare funding and resources to Native American communities led to the devastating and disproportionate impact of coronavirus on them. The NCAI President Fawn Sharp expressed frustration with the lack of federal assistance coupled with interference with the checkpoints. She stated if the federal government was not going to help them, they can “at least get out of our way.”^[128]

The United States has what is often described as a fiduciary relationship with the Native American tribes.^[129] This relationship is sometimes referred to as “the Trust Doctrine,”^[130] and was created by a combination of case law, various statutes, and several treaties.^[131] The trust relationship provides the basis for a variety of services and benefits to Native Americans that the United States has the duty to provide, including healthcare.^[132] Marcella Gilbert, a Cheyenne River Sioux community organizer, characterized her ancestor’s loss of self-governance and cultural life as an exchange for the upholding of treaty obligations and sovereignty that would provide these services.^[133]

C. Failure to Uphold the Trust Doctrine in the Coronavirus Pandemic

The United States has not adequately upheld their end of this exchange, and the devastation recently brought upon Native American communities highlights this reality. The Civil Rights Commission stated that “the federal government spends less per capita on Native American healthcare than any other group for which it has this responsibility, including Medicaid recipients, prisoners, veterans, and military personnel.”^[134] Some point to this lack of funding as a contributing factor to the disproportionately high rates of coronavirus cases amongst Native Americans.^[135]

The concern that the federal government has failed Native Americans in providing adequate healthcare both before and after the beginning of the coronavirus pandemic is not limited to only tribal leaders. Senator Elizabeth Warren, in conjunction with co-chair of the Congressional Native American Caucus Deb Haaland, wrote to the U.S Commission on Civil Rights in an effort to explore how Native American communities’ economic hardships have been exasperated by the coronavirus pandemic. They write, “The Administration’s failure to uphold the trust responsibility to provide adequate relief, health services, and public safety resources to tribal communities has exacerbated the pandemic’s impact.”^[136] The Biden-Harris administration’s campaign website echoed the sentiment that the pandemic has highlighted historic inequities in the United States’ treatment of Native Americans.^[137]

The federal government can either make good on its promises to provide adequate and equitable healthcare and coronavirus relief to Tribal Nations, including the Cheyenne River Sioux, or the federal and state governments can recognize an increased level of tribal sovereignty—one that includes the ability to regulate the behavior of non-members on tribal land. But ideally, the United States should make an effort to do both.

IV. The Implications of McGirt v. Oklahoma in the Context of the Pandemic

There has been a recent push for the original treaties between Tribal Nations and the United States to be construed as originally intended in both case law and at a public policy level, despite the historic failure on the part of the United States to fully uphold treaties. This is especially true where land use is concerned.^[138] This movement coincides with a trend towards a more textualist approach in federal Native American law, one that looks solely at the text of original treaties with Tribal Nations and related statutes, and nothing else.^[139]

This trend is exemplified in McGirt v. Oklahoma, in which Justice Gorsuch affirmed that historic non-compliance with treaty obligations does not necessarily make the treaty invalid. Rebecca Nagle, an advocate and citizen of the Cherokee Nation, pointed to the recent Supreme Court decision in McGirt v. Oklahoma as a “powerful legal tool in cases in which the states claim that the consequences of following the terms of [a]…treaty are too great” and claim that historic negligence of a treaty invalidates it.^[140] Justice Gorsuch’s approach to treaty analysis has several sovereignty implications that are made especially relevant in relation to mitigation ability during the coronavirus pandemic. If the Cheyenne River Sioux Tribe’s complaint should proceed to trial, courts should look to McGirt as precedent.

A. Case Summary

At its surface, the main issue in McGirt concerns the reach of Oklahoma’s criminal jurisdiction over tribal members that commit crimes on reservation land.^[141] The Major Crimes Act (MCA) provides that any Native American who commits certain enumerated offenses within “Indian country” are subject to the “same law and penalties as all other persons committing any of [those] offenses, within the exclusive jurisdiction of the United States.”^[142] The MCA defines “Indian country” to include “all land within the limits of any Indian reservation under the jurisdiction of the United States.”^[143]

Jimcy McGirt, an enrolled member of the Seminole Nation, was convicted by an Oklahoma state court of three counts of sexual assault of his wife’s four-year-old granddaughter.^[144] McGirt argued that Oklahoma lacked jurisdiction to prosecute him because he was an enrolled member of the Seminole Nation and his crimes took place within the borders of the Creek Reservation.^[145] Therefore, he could only be subjected to federal jurisdiction per the MCA.^[146]

But, while it was undisputed by both parties that McGirt’s crimes were technically committed within the boundaries of the Creek Nation’s reservation established by various treaties and Congress in the mid-19^th century, the land in question was no longer considered to be part of the Creek Nation’s reservation by the majority of Oklahomans.^[147] The original boundary includes a portion of Northeastern Oklahoma and the majority of the city of Tulsa.^[148]

Congress promised to “forever secure” the land exchanged with the Creek Nation for their permanent home through multiple treaties.^[149] However, years of allotment, assimilation, and disregard of Native Americans and their rights resulted in the majority of the land initially set aside for the Creek Nation being passed into white, non-tribal ownership.^[150] Oklahoma has exercised criminal jurisdiction and controlled the land within the boundaries of the initial treaties for the past century,^[151] and present day Oklahomans who are not affiliated with any Native American community and live on the land in dispute in this case would likely not consider themselves to be living within the boundaries of a Native American reservation.^[152]

Oklahoma presented several arguments in the alternative to assert that the land that McGirt committed his crimes on was no longer a part of the Creek Reservation, and therefore the state did have jurisdiction to try his crimes.^[153] The state pointed to the Allotment Act as an indicator of Congress’ intent to shrink the scope of the Creek Nation’s Reservation. ^[154] The state also asserted that, even if the land did belong to the Creek Nation, it would not matter because the Oklahoman government has traditionally always maintained criminal jurisdiction over those lands.^[155]

The Supreme Court was not persuaded by any of Oklahoma’s arguments. The court ruled that the land reserved for the Creek Nation in the 19th century remains “Indian country” into the present day. Justice Gorsuch was particularly critical of Oklahoma’s argument that the state should be able to ignore treaty obligations or chip away at reservation boundaries simply because they had always done so. Justice Gorsuch commented that similar reasoning would not be acceptable in any other area of statutory law, and asserts to hold otherwise “would be the rule of the strong, not the rule of law.”^[156]

The implications that this ruling will have on Native American law are vast. Notably, Justice Gorsuch rejected what might be categorized as the most “reasonable” or “just” outcome^[157] in favor of Indigenous American sovereignty. The ruling also suggests that as much as half of Oklahoma’s land and roughly 1.8 million of its residents, the majority of which are not Native American,^[158] are situated within “Indian Country.”^[159] Indeed, both Oklahoma and the dissents warn of the potentially “transform[ative] effects of a loss.”^[160]

B. Implications for the Cheyenne River Sioux Tribe’s Complaint

Both Oklahoma and Justice Robert’s dissent expressed concern that the holding in this case “might be used by other tribes to vindicate similar treaty promises.”^[161] Thankfully, some predict it might do just that.^[162] This paper contends that this holding not only broadly sets the precedent for a general recognition of a higher level of tribal sovereignty, it also supports the relief the Cheyenne River Sioux Tribe is seeking in the Cheyenne River Sioux Tribe’s current lawsuit against the Trump Administration. Like in McGirt, bids to the reasonableness, practicability, or even safety of the COVID-19 checkpoints set up by the Cheyenne River Sioux Tribe made by the Trump administration should be ignored, even if the cost is “too great”^[163] to South Dakota commerce as Governor Noem’s initial complaint laments.^[164]

Justice Gorsuch’s analysis hinged on whether Congress expressly intended to breach its treaty obligations and take away reservation land.^[165] Justice Gorsuch concluded Congress never did.^[166] He asserted that the local traditions and demographics that Oklahoma premised one of its arguments around could be clarifying had Congress’ intent been ambiguous.^[167] Justice Gorsuch acknowledged that Congress did not always keep their promises to the Creek Nation to uphold their boundaries in legislation like the Allotment Act and the Curtis Act of 1898.^[168] However, Justice Gorsuch ultimately concluded that there was no act of Congress that amounted to an attempt to fully restructure or dissolve the very boundaries of the Creek Nation.^[169] Allotment did not create ambiguousness.^[170] So, the deciding court in Cheyenne River Sioux v. Trump should first look to whether Congress has ever stated its intent to breach its promise to the Cheyenne River Sioux Tribe first laid out in the 1868 Treaty of Fort Laramie to provide law enforcement services to the Cheyenne River Sioux Tribe.

The short answer appears to be no, Congress has not. While the Allotment Act did devastatingly affect the Cheyenne River Sioux Tribe as it did the Creek Nation, Congress has not expressed intent to breach this specific trust duty. In fact, the opposite is true. The Cheyenne River Sioux Tribe even cites to some of the several pieces of legislation that affirm Congress’s commitment to upholding the federal government’s obligation to uphold its own trust duty to the Tribe in their complaint.^[171]

One of the most recent examples is the Tribal Law and Order Act, which established the Office of Tribal Justice.^[172] One of the duties of the Office of Tribal Justice is to “serve as a point of contact . . . for the tribal governments . . . with respect to questions and comments regarding policies and programs of the Department and issues relating to public safety and justice in Indian country.”^[173] The Tribal Law and Order Act was enacted to help address crime in tribal communities.^[174] It encourages the hiring of more law enforcement officers for Native American lands and provides additional tools to address critical public safety needs.^[175] It’s then difficult to imagine a scenario in which the Cheyenne River Sioux Tribe is not successful in their lawsuit in light of the decision in McGirt v. Oklahoma should it continue to trial.

C. Future Implications

The McGirt decision has wider implications still for the Cheyenne River Sioux Tribe and its struggle against the federal and South Dakota governments to assert the necessary control over their territory to keep the coronavirus at a manageable level. At the crux of this dispute is the question of whether the Cheyenne River Sioux Tribe has the authority to regulate non-tribal members wanting to pass through their reservation and keep those who have been potentially exposed to COVID-19 out. The Cheyenne River Sioux Tribe’s complaint discusses this issue.^[176] But, the majority of the complaint centers on the question of the appropriateness of the Trump Administration’s threats to breach law enforcement contracts with the Cheyenne River Sioux Tribe if they did not take down the checkpoints.^[177] The issue of tribal sovereignty has also been the focus of media interviews on the subject.^[178]

There is a confusing body of case law regarding a Tribal Nation’s ability to regulate the activities of non-members. Prior to McGirt, it might have been unlikely that the Cheyenne River Sioux Tribe would get very far citing to federal case law. The Cheyenne River Sioux Tribe’s lawyer, Nikki Ducheneaux, expressed that there is a “confusing array” of which laws apply to which status of people on Native American reservations when directly asked in an interview about the checkpoint controversy if tribal or federal law applied to non-tribal members on reservations.^[179]

There are currently very narrow circumstances in which a Tribal Nation can exercise jurisdiction over a non-member.^[180] In civil suits, the Supreme Court has decided such authority is only appropriate if the conduct of the non-member has catastrophic effects on a tribe.^[181] It’s difficult to imagine a scenario where a non-member’s actions could have a more catastrophic impact than in a deadly pandemic.

However, McGirt v. Oklahoma may have changed the legal landscape for the Cheyenne River Sioux Tribe and the other Native American communities that live on the reservations the Treaty of Fort Laramie created. It might initially be difficult to imagine a scenario where McGirt sets a precedent for a Tribal Nation’s full criminal jurisdiction over a non-member who did not consent to be under their jurisdiction. But the original treaty language might suggest a federal responsibility to criminally prosecute non-members who commit the “wrong”^[182] of endangering the Sioux people by ignoring coronavirus restrictions if it can be found that Congress never expressly intended to breach this portion of the treaty.

McGirt is also relevant should Congress enact legislation granting Native American communities the ability to regulate the behavior of non-members living within reservation borders as this Comment contends Congress should. Oklahoma cited the impact that their loss in McGirt may have on civil and regulatory law as support to why the court should rule in their favor. In response, Justice Gorsuch asserts that the question before the court only involved the statutory definition of “Indian country” as it concerns the MCA.^[183] But, he also recognized that "many federal civil laws and regulations do currently borrow from [the MCA] when defining the scope of Indian country.^[184]

It is likely that, should Congress enact such a legislation, non-tribal members will assert that they should not be subject to those regulations because they were not aware they were living in an area where they might be subject to them. This is especially likely if those non-members are living on what was allotted land. The ruling in McGirt might bar such claims.

V. Recommendations and Predictions

In addition to providing the appropriate health funding and resources for Native American communities immediately, there are two major steps the United States can take at the state and federal level to ensure the tribes can appropriately mitigate the on-going pandemic via checkpoints, lockdowns, mask mandates, or any future health crises going forward.

A. Framing the Tribal-State Relationship

First, a shift in the way states and the federal government view their relationship with Native American communities rooted in the understanding that Tribal Nations have a type of sovereignty that pre-dates the United States Constitution^[185] is crucial to meaningful cooperation between these parties. The ramifications of COVID-19 are likely to plague the United States for a while longer,^[186] and a relationship between Tribal Nations, states, and federal government based in respect and trust is crucial to protecting the health of Native American communities.

It should be noted that Justice Gorsuch’s opinion “utterly dismissed” the need to balance tribal and state interests.^[187] Justice Gorsuch’s warns that, at least in respect to the states’ authority to reduce federal reservations lying within their borders, to hold otherwise would “leave tribal rights in the hands of the very neighbors who might be least inclined to respect them.”^[188]

Governor Noem may be one such neighbor. It is a wonder that Noem would threaten the Cheyenne River Sioux Tribe with litigation over their checkpoints because it interfered with commerce given her recent dedication to “uphold the Constitution of the United States” by prioritizing “freedoms and liberties” instead of enacting coronavirus lockdown measures.^[189] The United States Constitution also asserts that only Congress has the power to regulate commerce with Native Americans.^[190] Noem also threatened litigation because the Cheyenne River Sioux Tribe did not consult and reach an agreement with the state before implementing the checkpoints.^[191] However, tribal governments are on equal footing with the state government and have a government-to-government relationship with them.^[192]

As the Cheyenne River Sioux Tribe’s lawyer framed it, Governor Noem didn’t have a “leg to stand on.”^[193] Noem likely understood that her state had no authority to litigate this matter with the Cheyenne River Sioux and Oglala Sioux, which is why she never followed through on her ultimatums. Why then, would she engage in such a publicly heated back-and-forth with their leaders, likely knowing she would ultimately have to turn the matter over to the federal government as she did?

Noem might have been engaging in a bit of “political theater” to appeal to the sentiments of her base. Professor John Schaff, a political scientist, has stated Noem’s anti-lockdown sentiment was “driven by an ideological commitment supported by the majority of South Dakotans” that people should be able to engage in behaviors that would be restricted in other parts of the country during the coronavirus pandemic should they so choose.^[194] Noem’s behavior is also reflective of a technique Professor Matthew L.M Fletcher, the director of the Indigenous Law and Policy Center at Michigan State University, claims is often used by non-tribal members to erode at a tribe’s sovereignty to non-tribal advantage.^[195] His observations are based in patterns of arguments used in litigation, but Noem’s language exemplifies how these patterns are present outside of that context as well. Non-tribal members first complain they have no say in a particular law or regulation, then assert that the concept of tribal sovereignty is contrary to the United States Constitution and claim tribal judges are biased, and then finally argue that it is in the best interest of the tribe to not possess jurisdiction over non-members.^[196] Noem’s statements on the checkpoint controversy appear to follow this pattern fairly closely. She lamented that the Cheyenne River Sioux and Oglala Sioux had not consulted with her, which would have granted the state some sort of say in the matter. She has previously complained that the Native American communities within South Dakota are usually the ones “hesitant” to work with the state, not the other way around.^[197] She also stated in her letter requesting the checkpoints be taken down that “[the tribes and South Dakota] are stronger when [they] work together.”^[198]

Noem’s actions towards the Cheyenne River Sioux Tribe do not only problematically chip away at tribal sovereignty. They also serve as a dangerous distraction from the Cheyenne River Sioux Tribe’s ability to mitigate the coronavirus on their reservation—an already difficult tasks given the Cheyenne River Sioux Tribe’s lack of resources. The pending litigation between the Cheyenne River Sioux Tribe and the Trump Administration was even delayed because of the difficulties tribal leaders had in balancing litigation and tending to the coronavirus pandemic on their reservation.^[199] An increased recognition among the communities that border reservations of Tribal Nations’ pre-Constitutional sovereignty rights would decrease the likelihood that bits of political theater like this would both happen and be entertained.

B. The Need for Clarifying Legislation

It is possible Governor Noem sincerely misunderstood both the extent of her state’s authority over the Cheyenne River Sioux Tribe and their sovereign authority. Questions over the role of each of the branches of the federal government, the states, and non-tribal members in Native American law are the subject of much litigation.^[200] At least some of the grief the Cheyenne River Sioux Tribe experienced as a result of the checkpoints can be avoided as the pandemic continues if Congress enacts legislation outlining the extent in which Tribal Nations regulate the behavior of non-members within its own borders. It is crucial to Native American health during the pandemic that Congress take this a step further and explicitly grant Tribal Nations the ability to regulate the behavior of non-members that conflicts with a given Tribal Nation’s coronavirus mitigation efforts, like lock-downs and mask-mandates. However, the geographic reality is that states and Tribal Nations do have to work together on their coronavirus mitigation strategies to some extent. It would also be helpful if Congress laid out guidelines for the states and tribes to follow on the appropriate way for this relationship to exist.

Professor Fletcher asserts that, while Congress should be the one to grant this authority, it will likely be left for the judiciary to decide. This Comment disagrees. Recent trends in case law suggests questions regarding the sovereignty of Tribal Nations and treaty interpretation are ultimately up to Congress to decide. In McGirt, Justice Gorsuch rather bluntly suggests Congress has intentionally passed their responsibility to the judiciary for political reasons.^[201] However, there is likely to be mounting political pressure for Congress to enact such legislation in the wake of coronavirus given the extend in which the media has covered the checkpoint issues and the devastation the coronavirus has brought to Native American communities.

C. Hope in the Biden Administration

The Biden-Harris website has also acknowledged that the founding promise of equality for all “has been denied to Native Americans” within the first paragraph of its webpage for the administration’s Plan for Tribal Nations.^[202] The administration also asserts that the COVID-19 pandemic "highlighted this long history of inequity.^[203] There is hope that Native American communities may find relief in the near future with a more sympathetic administration, but some experts and leaders of Tribal Nations still feel as though federal relief efforts, like the Biden administration’s initiative to send out free testing kits, does not do enough to meet tribal communities’ specific needs.^[204] As recently as November 2021, Frazier expressed frustration regarding Biden’s Tribal Nations Summit and its handling of tribal healthcare concerns.^[205] This inadequacy in federal support for Tribal Nations nearly two years into the pandemic highlights the need for greater tribal sovereignty in order to enact whatever mitigation efforts they deem necessary to protect their people.

Conclusion

The coronavirus pandemic has highlighted the inequitable and unjust treatment of Native Americans in a profoundly destructive way. Lawmakers and politicians are now unable to continue to ignore the disparities in healthcare resources and funding provided to Native Americans communities. Hopefully, there will now be a greater public push for the United States to adequately provide healthcare to Native American communities, but it is unfortunate it took a global healthcare crisis for these issues to be addressed.

However, these disparities are not only an issue of underfunding. The underfunding is part of a larger issue of the United States traditionally ignoring or failing to adequately fulfill its treaty obligations to the Tribal Nations when those obligations become inconvenient.

In the case of the Cheyenne River Sioux, these obligations do not only include the promise of healthcare. The federal government is obligated to respect and support the Cheyenne River Sioux’s ability to protect themselves from the “wrongs” of non-members per the 1868 Treaty of Fort Laramie.

Tribal Nations should be at the very least provided with the tools to adequately protect themselves internally, especially if the United States continues to inadequately protect and support Native American communities in the pandemic. This is only possible with a both congressional and judicial recognition of an increased degree of sovereignty over both reservation land and the non-Natives who live and move on reservation land.

The courts should rule in favor of the Cheyenne River Sioux Tribe and grant the Cheyenne River Sioux relief based on the precedent set by McGirt v. Oklahoma should it continue to trial. However, regardless of whether this case makes it to litigation and its potential outcome, this lawsuit and the preceding conflict has highlighted how incredibly vulnerable Native American communities are in the face of a health crisis because of historic mistreatment and underfunding. It has also highlighted how difficult it is for Native American communities to mitigate these situations effectively themselves due to due their limited sovereignty. Now that these issues are being pushed to the front of the public consciousness, we can hopefully work towards making sure Native American communities are as safe and healthy as is possible within a pandemic.