PIERRE, S.D. — Gov. Kristi Noem’s second attempt to pass a “riot boosting” law succeeded when the 2020 South Dakota State Legislature approved it, despite critics’ claim that it is an unnecessary effort to regulate peaceful protest.
Noem reintroduced the bill in light of vows by Lakota people and allies to resist looming construction of the tribally opposed Keystone XL Pipeline through unceded 1868 Ft. Laramie Treaty territory. She signed it into law March 23, over the strident opposition of Native American and Democratic legislators.
During the previous 2019 Legislature, Noem had obtained approval of the Riot Boosting Act to tithe not only oil pipeline builders but also resisters for expenses the state might incur in conflict over the private infrastructure projects.
However, she was roundly criticized by tribal leaders for her failure to consult with them on the legislation; then a federal District Court preliminary decision in Dakota Rural Action v. Noem enjoined the law’s enforcement for lack of constitutionality, resulting in a $100,000 defense tab billed to taxpayers by state officials.
In the wake of the ruling, Noem submitted modifications in the form of HB1117, called “An Act to repeal and revise certain provisions regarding riot, to establish the crime of incitement to riot, and to revise provisions regarding civil liability for riot and riot boosting.”
As in its previous its manifestation, this bill failed to define riot boosting, a term coined by Noem, a leading statewide grassroots nonprofit, Dakota Rural Action, noted in its “Weekly Legislative Update,” commenting:
“While on its face, the new bill appears to thread the constitutional needle, serious issues remain regarding enforcement … and the simple question of what does riot boosting actually mean? Could a person be charged with a riot-related crime while sitting on their couch in their pajamas, urging people through social media to stop the pipeline?
“Anything approaching that scenario is again likely to be held unconstitutional, and that leads to the question, how much do South Dakota taxpayers want to spend defending their First Amendment rights against their own government?”
Noem’s new section creating “the crime of incitement to riot” states: “Any person who, with the intent to cause a riot, commits an act or engages in conduct that urges three or more people, acting together and without authority of law, to use force or violence to cause any injury to any person or any damage to property, under circumstances in which the force or violence is imminent and the urging is likely to incite or produce the use of force or violence, incites riot.
“Urging includes instigating, inciting, or directing, but does not include the oral or written advocacy of ideas or expression of belief that does not urge the commission of an act or conduct. This section may not be construed to prevent the peaceable assembly of persons for lawful purposes of protest or petition.”
All Lakota tribes with jurisdictions overlapping South Dakota’s are on record in opposition to pipeline construction: the Cheyenne River Sioux Tribe, Crow Creek Sioux Tribe, Flandreau Santee Sioux Tribe, Lower Brule Sioux Tribe, Oglala Sioux Tribe, Rosebud Sioux Tribe, Sisseton Wahpeton Oyate, Standing Rock Sioux Tribe, and Yankton Sioux Tribe.
“Indigenous voices have long protected Mother Earth’s biodiversity and we will not be intimidated into silence,” responded Dallas Goldtooth, an organizer with the Indigenous Environmental Network.
“We refuse to live in fear for demanding climate justice and protecting our sovereignty as native nations and its peoples,” he said. “We will remain vigilant against further government attempts to outlaw our right to peacefully assemble
The American Civil Liberties Union called the proposal “an unnecessary effort to legislate peaceful protest in South Dakota.”
It stated: “It’s irrefutable that this bill, like the 2019 Riot Boosting Act it replaces, was sparked by a desire to suppress protests around the Keystone XL Pipeline. But the right to join with fellow citizens in protest or peaceful assembly is critical to a functioning democracy and at the core of the First Amendment.
“The South Dakota Legislature does not need to pass laws that would intimidate peaceful protesters and chip away at their constitutional rights.
“While proponents of this bill say they’re concerned only about riots, the context is clear: This legislation is a direct reaction to some of the most effective protests in modern American history, including the work done by water protectors challenging the construction of the Dakota Access Pipeline at Standing Rock,” said Candi Brings Plenty, indigenous justice organizer for the ACLU of South Dakota.
“This bill and the narrative surrounding it only creates a state of fear that pits activists and organizers who are exercising their First Amendment rights against government officials and law enforcement.”
Additionally, the legislation raises a fundamental question, the ACLU said: “How will the State of South Dakota ensure that the rights of the people planning to peacefully protest the Keystone XL Pipeline are protected?”
TC Energy Corp., formerly TransCanada Corp., wants to build the hazardous liquid pipeline to carry tar, or bitumen, diluted with other petroleum products (dilbit), from the oil sands of Canada’s Athabascan boreal forest across Montana, South Dakota and Nebraska, in order to ship through already existing infrastructure to refining and export facilities on the Texas Gulf Coast.
Tied up in court and administrative challenges lodged by tribes and allies, the company’s interest in pursuing necessary permits was flagging until recently when the Alberta provincial government provided it a $7.1-billion bailout. It immediately began construction at the U.S. Canadian border.
Feature photo: Crowd outside Federal Judge Lawrence L. Piersol’s courtroom in Rapid City, S.D. rallied peacefully in June at his hearing to determine if South Dakota Gov. Kristi Noem’s 2019 legislation violated the First Amendment guarantees of oil pipeline resisters. (Photo COURTESY / Andy Johnson)
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