This month, in a move that could have serious consequences for Indigenous communities, South Dakota has passed two laws to criminalize protest against the TransCanada Keystone XL oil pipeline.
The Republican-controlled legislature passed SB 189 and SB 190, which will, according to High Country News, allow "the state of South Dakota to prosecute pipeline demonstrators and their funders—and use money from damages to fund law enforcement and pipeline costs."
Republican Governor Kristi Noem introduced the bills on March 4. Three days later, they passed the State House and Senate. Both, reports Rewire.News, contain emergency provisions that allow them to go into effect immediately and without a public vote. Noem is now preparing to sign the passed bills into law.
SB 189 aims to formalize merging the identity of the state and corporations by creating a fund “to offset costs incurred by riot boosting,” and SB 190 would create a fund to pay the costs incurred by the state or local governments responding to protests.
The riot-boosting bill “has the capacity to make a criminal of any citizen, not just big donors or supporters,” Crow Creek Chairman Lester Thompson, Jr. told High Country News. “In a world of social media, how do you determine who is a riot-booster or just a concerned citizen?”
The 1,184-mile Keystone XL pipeline will connect Canada’s tar sands crude oil with refineries on the Texas Gulf Coast. It is owned by TransCanada, the same company whose Keystone pipeline spilled 210,000 gallons of oil in a field in South Dakota in November 2017.
There has been opposition to the Keystone XL pipeline since its inception. Activists argue it would damage the climate via oil extraction, destroying trees and consuming energy at levels that would increase greenhouse gas emissions. The pipeline is also a threat to Indigenous groups. Two Native American communities, the Rosebud Sioux Tribe and Fort Belknap Indian Community, sued the Trump administration last year for not adhering to historical treaty boundaries. In addition, the pipeline’s route could damage water systems and sacred Indigenous lands, environmentalists assert.
Critics allege that Noem consulted with TransCanada before she introduced the bills to the legislature, but didn’t meet with South Dakota’s seven tribal nations that will be impacted by it.
Harold Frazier, chairman of the Cheyenne River Sioux Tribes, said in a statement, “This legislation only shows they are more concerned with saving money while suppressing South Dakotans’ rights of assembly and intimidating anyone who is considering options to stand up for what they believe is right.”
Others have criticized the way the legislation was passed. Rosebud Sioux Tribe President Rodney M. Bordeaux said in a statement:
The timing is dubious and seems to be an underhanded tactic this late in the session. The bill creates a new theory of civil recovery and invents a new term: “riot boosting.” The bills purport to allow the recovery of triple damages against anyone who participates, directly or indirectly, in a protest where violence or the threat of violence allegedly occurs, whether or not that person engaged in the violent activity, and even if that person is not physically present when the alleged violence occurs.
The laws likely face a court battle as Native and environmental activists push back, arguing that it is a violation of First Amendment rights. “They will certainly be challenged,” Mara Verheyden-Hilliard, executive director of the Partnership for Civil Justice Fund, told Rewire.News, adding that the bills are “dangerous.”
Construction of Keystone XL could begin this summer, although there are legal injunctions against it that could push the start date to 2020.