Background
After the historic resistance against the Dakota Access pipeline in Standing Rock, the State of South Dakota, in anticipation of another wave of protests in opposition to the Keystone XL pipeline, passed the “Riot Boosting Act.” This act was passed in the final few days of the 2019 legislative session after meetings occurred between South Dakota governor Kristi Noem and representatives from TransCanada, a Canadian energy corporation responsible for extracting and transporting oil from the Alberta Tar Sands via the Keystone XL pipeline, across several Indigenous territories in the U.S. and Canada, ultimately to be transported to the Gulf of Mexico.
Once passed, the “Riot Boosting Act” immediately functioned to threaten activists who encourage or organize protests, particularly protests of the Keystone XL pipeline, with fines, civil liabilities, and/or criminal penalties of up to 25 years in prison.
According to the vague language of the “Riot Boosting Act,” an individual making donations to protests could be charged with “riot boosting.” Individuals making social media posts in support of pipeline protests could be charged similarly. Holding a “#NoKXL” protest sign could also potentially land you in court with “riot boosting” charges under this law.
This law directly impacted the work of the NDN Collective as an organization both organizing on the ground against KXL as well as resourcing the movement to do this work.
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Under the “Riot Boosting” act, the State of South Dakota and Republican Governor Kristi Noem were willing to violate the U.S. Constitution so long as it meant stopping Indigenous water protectors, land defenders and everyday common people from protecting South Dakota land from oil infrastructure development.
Watch: NDN Collective Sues South Dakota for State Laws Protecting Pipelines
In response to what was a clear constitutional violation of free speech, the American Civil Liberties Union and the ACLU of South Dakota filed a lawsuit against the State of South Dakota and Governor Kristi Noem on behalf of plaintiffs including the NDN Collective, the Indigenous Environmental Network, Dakota Rural Action, the Sierra Club, and two individuals, Nick Tilsen with NDN Collective and Dallas Goldtooth with Indigenous Environmental Network.
Judge Piersol presided over the first hearing on the case on June 12 in Rapid City, South Dakota. A few months later on September 18, Piersol delivered his decision, issuing a preliminary injunction in favor of the plaintiffs. The injunction temporarily blocks a majority of the unconstitutional provisions of the “Riot Boosting” act; however, the lawsuit against the State of South Dakota and Governor Kristi Noem continues to be active until a final decision is delivered.
What This Injunction Means
After reviewing the “Riot Boosting” act, Judge Piersol agreed with plaintiffs that the language of “riot boosting” was too vague and it had a “chilling effect” on free speech. Piersol also reviewed existing riot laws in the state, one enacted in 1939, which, in part, was also determined to be overbroad.
Judge Piersol granted the preliminary injunction sought by plaintiffs, which puts a temporary hold on a majority, but not all parts of the ”Riot Boosting” act. In his analysis, Piersol used a historical comparison in his scrutiny of the statute, “Imagine that if these riot boosting statutes were applied to the protests that took place in Birmingham, Alabama, what might be the result? … Dr. King and the Southern Christian Leadership Conference could have been liable under an identical riot boosting law.”
The South Dakota State Legislature can respond to this injunction in one of a few ways: 1) They can repeal the “Riot Boosting” act entirely; 2) They can replace the act with a new, better law that does not infringe upon our First Amendment rights to peacefully protest; or 3) The SD State Legislature can replace the act with something worse.
The State can also appeal the preliminary injunction, and in this case, the appeal would go to the 8th Circuit Court of Appeals.
What’s Next
While plaintiffs await next steps, the legal process continues until a final decision is reached. A preconference hearing is expected in the next few months.
In the meantime, the NDN Collective remains optimistic.
“The State of South Dakota and TransCanada rushed the creation of this anti-protest law in an attempt to muzzle our voices and make it difficult for us to organize against the KXL pipeline,” says Nick Tilsen, NDN Collective President and CEO. “They thought they were just going to come here and build this pipeline through the heart of Lakota territory, trample peoples’ rights and discourage our movement to protect Mother Earth– They were wrong. We are here to stay and stand up for the Earth, against destruction and injustice.”
In a time of climate crisis and ongoing devastation of Indigenous lands and territories, NDN Collective is among the scores of committed Indigenous people, water protectors, organizers, environmental rights activists, and everyday common people who remain devoted to protecting our Mother Earth while creating sustainable solutions for our future.
“We are in a global battle to fight climate change, and shutting down the fossil fuel industry is imperative for the survival of humanity and all living things,” says Tilsen. “This illegal law was a bump in the road in our fight to protect Mother Earth, but we are glad to hear that a federal judge agrees that we should have the right to organize and protest unencumbered. This is a step in the right direction.”
