By Emma Whitford

Law360 (November 25, 2020, 5:05 PM EST) -- Tribal leaders and health experts in South Dakota are imploring Gov. Kristi Noem and the state Legislature to institute a statewide mask mandate and follow the example of local tribes as the coronavirus wreaks havoc across the Great Plains.

In interviews with Law360, presidents of the Oglala Sioux Tribe and Rosebud Sioux Tribe and the CEO of the Great Plains Tribal Leader's Health Board described untenable infection rates in the southwestern and central parts of the state and the need for more health care workers and hospital beds to meet the demand.

"The situation here in South Dakota and the Dakotas is dire, and in particular in Pennington County where we reside," said Jerilyn Church, CEO of the health board and director of the Oyate Health Center in Rapid City. "And if you don't have mitigation efforts and prevention efforts that are in place, that is taking a match to what's already a tinderbox."

The Great Plains Tribal Epidemiology Center reported on Nov. 19 that COVID-19 cases had doubled over the past four weeks in Pennington County, just north of the Pine Ridge Reservation that is home to the Oglala Sioux Tribe. As of that date, the seven-day positivity rate for the county was 59.1%.

And as of Nov. 25, Johns Hopkins University ranked South Dakota as having the third-highest seven-day positivity rate in the nation at 43.4%, after Puerto Rico and Wyoming.

Oglala Sioux President Julian Bear Runner told Law360 his tribe's health center is overwhelmed and must send COVID-19 patients not only to Rapid City, but across the state to Sioux Falls and south to cities like Scottsbluff, Nebraska, and even Denver, where the tribe's vice president, Thomas Poor Bear, was on a ventilator as of Monday.

"We cannot clear the funeral home," he added. "There's always an accumulation of our membership that's lying lifeless. ... It's devastating."

"If we do not take these preventative measures, we're going to continue to lose more people," Bear Runner added. "I really wish [Gov. Noem] would take some initiative to sit down to talk to her own experts."

He also credited Rapid City's City Council for voting 6-5 this month to preliminarily approve an indoor face covering mandate through December, with a final vote scheduled for Monday. "I'm very thankful for that because they are our neighbors," he said.

In a Nov. 18 memo, the Great Plains Tribal Leader's Health Board, of which Bear Runner is vice chairman, urged Noem to institute a mask mandate and called for a stay-at-home order to mitigate "substantial and uncontrolled community spread."

Yet the governor has continued to refuse to implement a mask mandate, even as neighboring states with Republican governors, including North Dakota, have done so. Her office did not respond to requests for comment on the memo, nor did Republican leaders in the state Legislature.

During a Nov. 18 press conference, Noem said cities across the state can implement mandates as they see fit and argued that states with mask mandates are still seeing cases rise.

"I don't want to approach a policy or a mandate just looking to make people feel good," she said. "I want to do good and actually put forward provisions that make a difference for families."

Democratic State Rep. Jamie Smith, the minority leader in South Dakota's House of Representatives, told Law360 that a mask mandate is needed and "the state has gone down a path that I believe is reckless."

"The tribes have been doing a good job of recognizing the need to follow the science, and they're in a very precarious situation because they are often very, very distanced from health care because of their geographic location," he added.

Rodney Bordeaux is president of the Rosebud Sioux Tribe in south central South Dakota. He told Law360 his tribe began issuing stay-at-home orders and a mask mandate back in March, even though cases didn't start to climb until the summer, and said Noem "just needs to get with it."

"Basically, we had to do this early on because we knew we had a vulnerable population," he said. "Plus, if the people get sick, they have to go off reservation for other hospitals." 

Church, of the Oyate Health Center, told Law360 that tribes' strict public health measures appear to be working.

On Aug. 19, Native Americans made up 16% of the state's cases and 24% of deaths, according to the tribal epidemiology center. As of Nov. 19, those shares had dipped to 12% and 14%, respectively.

Native Americans make up 9% of the state's population, according to Johns Hopkins.

"That is an indication to me that mask mandates work, that sheltering in place orders work, that those aggressive measures can deter the spread," Church said.

Yet she's not resting easy, as a "large number" of her staff at Oyate Health Center have either been sickened by the virus or are caring for sick family members this fall.

"It's taking a physical and emotional toll on the individuals who work for our organization and Oyate Health Center," she said. "There's only so long that you can continue to operate in a fight or flight mode. And that's really where we are — fighting for our survival."

--Editing by Philip Shea.

For a reprint of this article, please contact reprints@law360.com.