Indigenous opponents of Keystone XL pipeline speak out against South Dakota’s planned ‘riot boosting’ penalties

Indigenous groups opposed to the Keystone XL oil pipeline told South Dakota lawmakers Wednesday that Gov. Kristi Noem’s plan to restore criminal penalties for urging riots would result in peaceful protesters being silenced.

The Republican governor proposed updates to the so-called “riot-boosting” laws after a judge struck down efforts last year to allow the state and counties to prosecute disruptive demonstrations against the pipeline. Several Indigenous groups in the state opposed the bill, putting a strain on the governor’s relationship with them.

The new proposal sailed through a House committee on Wednesday, as Indigenous groups testified, prayed and protested at the Capitol.

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The bill would update definitions of rioting and “incitement to riot” that are on the books and allow government entities to seek civil fines against people who “urge, instigate, incite, or direct” groups of three or more to using force or violence. The state agreed not to enforce parts of those laws in October as part of a settlement with the American Civil Liberties Union.

The Republican governor argues that the proposed laws are designed to protect people’s rights to protest peacefully and even includes language to make that clear. She has said the civil penalties would keep taxpayers from having to pay for damage caused by riots.

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Lester Thompson, the chairman of the Crow Creek Sioux Tribe, said the First Amendment already protects a person’s to protest. He said the law would put protesters in a defensive position, vulnerable to laws that do not make it clear what constitutes violence during a riot.

“It could be me raising my fist,” said Derrick Marks, a committee member of the Yankton Sioux Tribe. “Is that considered riot boosting? Is that considered violence?”

Katie Hruska, a lawyer with the governor’s office, told the committee, “There is nothing in this bill that targets protests or criminalize protests in any way.”

One of the reasons the judge found parts of a “riot boosting” law passed last year to be unconstitutional was because it was created in response to potential demonstrations against the Keystone XL pipeline. The governor’s office has said that this is not the case this year.

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Republicans on the House State Affairs committee almost all agreed that the law was necessary. Two Democrats and one Republican voted against the bill. It will next be considered by the Republican-dominated House.

Speaker Steven Haugaard, a Sioux Falls Republican, broke with his party to oppose the bill. He called last year’s riot boosting laws “a significant mess.” The bills were passed by the Legislature last year three days after Noem introduced it. The state later had to pay $145,000 in legal fees to the ACLU as part of its legal settlement.

Haugaard said the proposal also puts “unnecessary strain” on the relationship between the state and Indigenous people who feel targeted by the bill.

Candi Brings Plenty, a lobbyist for the ACLU and a member of the Oglala Sioux Tribe, said the bill “perpetuates the oppression” against Indigenous people and attempts to silence their protests. She pointed to the history of government actions that have abused Indigenous people. She organized a prayer and demonstration on the grounds of the Capitol before the committee meeting.

Spencer Gosch, a Republican from Glenham, said, “I don’t want to make this a race thing. This is not what this is.”

Noem has attempted to repair her relationship with tribes in the state after they opposed last year’s riot boosting laws. She held a meeting with representatives from some of the tribes just before the session began to discuss pending legislation. She also opened drafts of this year’s riot boosting legislation up to comment from the tribes. Five tribes — the Rosebud Sioux, Crow Creek Sioux, Yankton Sioux, Cheyenne River Sioux, and Oglala Sioux — responded to say they oppose the bill.

Noem has said she thinks the tribes are opposed to the riot boosting bill because they would not support anything to do with Keystone XL. She has tried to build bridges in other areas, and scheduled a press conference shortly after the riot boosting committee meeting to announce the creation of a new student art competition that she said would support Indigenous art in the state.