PIERRE, S.D. (AP) — South Dakota Republican Gov. Kristi Noem on Tuesday renewed her pitch for lawmakers to try again to pass laws against “riot boosting," despite opposition from Native American tribes who say Noem's proposal unfairly targets expected protests of the Keystone XL pipeline.
Noem sent a briefing packet to legislators along with a draft of the bill she plans to introduce. It would replace a law passed last year that was later blocked by a federal judge. It also revises anti-rioting laws on the books from previous years. The state eventually reached a settlement with the American Civil Liberties Union in which it agreed not to enforce parts of the laws.
“The responsibility I have as governor is that I’m keeping peace, and I’m protecting people and property,” Noem told The Associated Press.
Noem circulated bill language to lawmakers and tribes in December. All five tribes that responded to the governor's office — the Rosebud Sioux, Crow Creek Sioux, Yankton Sioux, Cheyenne River Sioux, and Oglala Sioux — oppose the bill.
The ACLU also wrote the governor’s office, asserting that it is “irrefutable” that both last year’s and this year’s legislation was sparked by the planned protests against the construction of the Keystone XL pipeline. The federal judge who blocked the law last year said it violated free speech rights in part because it targeted pipeline protests.
Noem said her new proposal applies to all future infrastructure projects in the state that might draw protests.
Several tribal leaders told the governor they are planning nothing more than peaceful protests and that the bill is unnecessary. They say the pipeline, which skirts tribal land in South Dakota, threatens their safety because of possible leaks that could contaminate drinking water. They are also concerned about a rise in crime by pipeline workers during its construction.
Rosebud Sioux Tribe President Rodney Bordeaux wrote in a letter to the governor’s office that he disagrees with Noem’s assertion that the bill doesn’t infringe on free speech. He called the bill “overly broad” and “not constitutionally appropriate.”
Oglala Sioux Tribe President Julian Bear Runner wrote that the legislation creates a “false narrative” that pipeline protests are violent and that such laws only worsen conflicts between the state and Native American tribes. After the “riot boosting” laws were passed last year, the Oglala Sioux Tribe banned Noem from the Pine Ridge Indian Reservation, a move they have since rescinded.
Noem said she met with representatives from some tribes before the session began to discuss the legislation, but that the tribes remain fundamentally opposed to the pipeline’s construction. She said she has tried to foster cooperation with the tribes in other areas, including meth addiction and law enforcement.
Noem argues that her new proposal uses the “narrowest” definitions of “incitement to riot” to protect people and property while also protecting free speech, according to the memo she sent to lawmakers. It seeks to replace the law’s current definition of “incitement to riot” that the judge found unconstitutional with language that would allow people to be prosecuted for “urging” a riot.
It includes “instigating, inciting, or directing” violence as examples of urging, but leaves out the word “threatening” that was included in an earlier draft. The governor argues that the proposal will pass what’s known as the Brandenburg test for free speech, which stipulates that authorities can’t prosecute speech unless the speech intends to cause a crime, is likely to cause it, and the crime is imminent.
Noem also wants to revive civil penalties for “riot-boosting,” or inciting a riot. The law would make it possible for the state, counties or other municipalities to make people personally liable for rioting. The governor said that would make it possible for the state or counties to recoup damages from riots.
Last year, the Legislature passed the riot boosting act three days after it was introduced.
Several lawmakers said they will be taking more time to consider the governor’s proposal this year, especially after the state had to pay $145,000 in legal fees as part of the settlement with the ACLU.