South Dakota Gears Up to Crack Down on Keystone XL Protesters in 2020

Protesters in Colorado speaking out against oil pipeline projects that endanger Native American lands, like the Keystone XL.
Protesters in Colorado speaking out against oil pipeline projects that endanger Native American lands, like the Keystone XL. Photo: Jason Connolly/AFP via Getty Images

The term “riot boosting” was invented last year by South Dakota lawmakers — led by Republican Governor Kristi Noem — to put a high-stakes façade on their otherwise transparent efforts to suppress Native American–led protests against the Keystone XL oil pipeline. In its current iteration, it describes a law passed by the legislature in March that would’ve allowed the state to sue individuals who encouraged violence at multi-person gatherings. It was defined so vaguely that it could’ve included a Twitter user who urged their followers to join a protest at which a minor scuffle broke out, according to the American Civil Liberties Union.

The law was weakened in October after the ACLU of South Dakota sued the state and Noem, as part of the resulting settlement, agreed not to enforce key parts of the legislation — which is still on the books — and direct local officials to do the same. The agreement was hailed as a tentative victory for proponents of the First Amendment. “We will celebrate this win, but remain vigilant against further government attempts to outlaw our right to peacefully assemble,” Dallas Goldtooth, one of the lawsuit’s plaintiffs and an organizer with the activist group Indigenous Environmental Network, said at the time.

Vigilance was warranted: This week, Noem signaled that she plans to take another shot at enacting “riot-boosting” legislation in 2020, writing to lawmakers seeking their input on how to make a revised version of the law pass constitutional muster this time. According to her memo, she aims to start by narrowing the previous version’s definition of “incitement to riot” so that it applies to people who actively “urge” three or more others to use force; “urging” is defined here as “instigating, inciting, directing, threatening, or other similar conduct,” but now excludes written or oral advocacy that doesn’t encourage physical violence, according to the Associated Press.

The details of other potential changes have yet to be made public. But even as Noem maneuvers to make the new law less blatantly unconstitutional, the essence of her efforts remains unaltered. She’s trying to expand her options for legal action against protesters and hoping to scare away others from demonstrating in the first place. Her first shot at the “riot-boosting” law prompted the Oglala Sioux to ban her from their tribal lands earlier this year. It seems unlikely that her latest effort will be received any more warmly.

None of Noem’s suppression effort is divisible from what happened a couple years ago in neighboring North Dakota. What seemed from the outset like it was going to be a fairly standard bulldozing of Native American lands and wildlife habitats to build lucrative oil infrastructure morphed into one of the largest environmental protests in recent memory. Sympathizers from around the world converged outside Cannon Ball, at the northern edge of the Standing Rock Sioux Indian Reservation, to help its indigenous residents oppose construction on the Dakota Access Pipeline, which was set to transport oil from North Dakota to southern Illinois. Energy Transfer Partners, the company building the pipeline, had planned to construct part of it underneath a section of the Missouri River — a half-mile away from the reservation, and a water source for its residents.

The irony of the violence deployed around these protests, as far as Noem’s characterization of the subject is concerned, is that it was directed almost entirely by authorities and hired mercenaries protecting the interests of oil billionaires against the protesters whom South Dakota lawmakers are now seeking to criminalize. In a viral video from September 2016, a hired security team can be seen using pepper spray and unleashing German Shepherds on demonstrators; at least six people were bitten. A November 2016 effort by protesters to unblock a local bridge — which police had purportedly locked down for safety reasons, but which in practice functioned to keep people contained at the protest encampment and unable to leave — was met by riot officers using water cannons, tear gas, rubber bullets, and concussion grenades. Hundreds of demonstrators were injured.

The completed phases of the Keystone pipeline system — which transports oil from western Canada to refineries in the United States — currently stretch a combined 2,925 miles through the Canadian provinces of Alberta, Saskatchewan, and Manitoba, down into North Dakota, South Dakota, Nebraska, Kansas, Missouri, Illinois, Oklahoma, and Texas. A proposed 1,661-mile addition would chart a straight path through Montana, South Dakota, and into Nebraska — and has been given the thumbs up for construction by the Trump administration, despite more than a decade of opposition by indigenous, rural, and environmental protesters and landowners and a 2015 stoppage by then-President Obama.

Protests against the Keystone XL extension have been a fixture of environmental activism in the Midwest for more than ten years. Noem’s recognition that it represents a financial windfall for big oil and its shareholders — and has perhaps its best chance yet of getting built now that an aggressively anti-environment president is in office — fuels her anxiety that it’ll be targeted for a disruption on par with what unfolded in North Dakota, with local tribes mobilizing and allies flooding in to join them. This worry underscores her characterization of such protests as generating from “out-of-state.” It also ignores that those most committed to stopping the Keystone XL pipeline — and most repulsed by Noem’s efforts to criminalize them for doing so — have most often been the indigenous people enduring her governance. The year 2019 saw her and the state legislature go to new lengths to suppress their activism, only to be rebuffed by federal law. It’s a sign of an era where officials seeking to quash dissent are so emboldened that 2020 will only see more of it.

South Dakota plans crackdown on Keystone XL protests in 2020