Native lawmakers weigh pipeline shield bills

State-Tribal Relations Committee Chair Rep. Shawn Bordeaux started a list of bills for South Dakota’s native constituents to watch. (Photo courtesy Shawn Bordeaux)

PIERRE – The looming construction of the tribally opposed Keystone XL Pipeline through unceded 1868 Ft. Laramie Treaty territory drew plenty of attention from native and other state lawmakers in the first two weeks of the 2020 South Dakota Legislature.
The hazardous liquid pipeline, if permitted, would be built by the Canadian TC Energy Corp. to carry tar, or bitumen, diluted with other petroleum products (dilbit) from the oil sands of Canada’s Athabascan boreal forest across Montana, South Dakota and Nebraska, in order to ship through already existing infrastructure to refining and export facilities on the Texas Gulf Coast.
HB 1093, which native lawmakers submitted to the Joint Appropriations Committee on Jan. 28, would establish an annual fee for pipeline operations, which would create a liability fund to cover extraordinary expenses caused by an oil pipeline discharge.
The proposal follows on more than a dozen dilbit spills from the Keystone I Pipeline, operated by TC Energy Corp., formerly TransCanada Corp.
Todd and Mellette County District 26A Rep. Shawn Bordeaux introduced the bill on behalf of the State-Tribal Relations Committee, which he chairs. He also is the director of the Institute of Tribal Lands at Sinte Gleska University on the Rosebud Sioux Indian Reservation.
Co-sponsors are committee members: Minnehaha County District 10 Speaker of the House Steven G. Haugaard, Pine Ridge District 27 Rep. Peri Pourier, Mission District 26 Senate Minority Leader Troy Heinert, Pine Ridge District 27 Sen. Red Dawn Foster, Rapid City District 33 Sen. Phil Jensen, Hot Springs District 30 Sen. Lance Russell, and District 8 Senate Majority Whip Jordan R. Youngberg of Chester.
The bill stipulates that any pipeline that begins operations on or after Jan. 1, 2021 must deposit a fee of up to $100 million in a so-called SPOIL Fund to be managed by the South Dakota Department of Environment and Natural Resources, or DENR.
TC Energy says it will start construction in August 2020, however administrative red tape and tribal court cases keep delaying its plans.
The language of the bill defines the SPOIL Fund as a “Releases from Pipeline Oil Liability” fund. It would be kept at the state Treasury Department.
The director of the Division of Financial and Technical Assistance at DENR would decide whether to grant claims for damages from pipeline leaks, according to the proposal.
It says claims may be filed by the state, federally recognized Indian tribes, local governments, private cooperatives, or business entities “to respond to … oil product release from a pipeline.”
The fee to any oil pipeline operator would be calculated at a rate of $2.50 per mile of pipeline, multiplied by a fee of 10 cents per barrel on the reported daily maximum capacity for one day. If no claims are granted during a calendar year, the following year’s fee would be waived.
During the 2019 Legislature, Gov. Kristi Noem obtained approval of a Riot Boosting Act that would have tithed not only oil pipeline builders but also resisters for expenses the state might incur in conflict over the private infrastructure projects.
She was roundly criticized by tribal leaders for her failure to consult with them on the legislation. Then a federal District Court preliminary decision in Dakota Rural Action v. Noem enjoined the law’s enforcement for lack of constitutionality, resulting in a $100,000 defense tab billed to taxpayers by state officials.
In the current legislative session, Noem’s office sent members of the House of Representatives new language to modify the Riot Boosting Act. It specifically states, “A fine paid by a defendant for any violation of (the Riot Boosting Act) may not be applied toward payment of liability.”
However, as in its previous its manifestation, this bill, HB1117, fails to define riot boosting, leading Dakota Rural action to comment in its “Weekly Legislative Update”:
“While on its face, the new bill appears to thread the constitutional needle, serious issues remain regarding enforcement … and the simple question of what does riot boosting actually mean? Could a person be charged with a riot-related crime while sitting on their couch in their pajamas, urging people through social media to stop the pipeline?
“Anything approaching that scenario is again likely to be held unconstitutional, and that leads to the question, how much do South Dakota taxpayers want to spend defending their First Amendment rights against their own government?”
Noem’s latest revision is called “An Act to repeal and revise certain provisions regarding riot, to establish the crime of incitement to riot, and to revise provisions regarding civil liability for riot and riot boosting.”
Her new section creating “the crime of incitement to riot” states: “Any person who, with the intent to cause a riot, commits an act or engages in conduct that urges three or more people, acting together and without authority of law, to use force or violence to cause any injury to any person or any damage to property, under circumstances in which the force or violence is imminent and the urging is likely to incite or produce the use of force or violence, incites riot.
“Urging includes instigating, inciting, or directing, but does not include the oral or written advocacy of ideas or expression of belief that does not urge the commission of an act or conduct. This section may not be construed to prevent the peaceable assembly of persons for lawful purposes of protest or petition.”
Noem’s 2019 pipeline legislative package established a PEACE Fund, otherwise known as a Pipeline Engagement Activity Coordination Expenses Fund, and a Riot Boosting Recovery Fund, through which “for fees and other funds to be collected through a variety of sources to pay for the extraordinary costs associated with the pipeline construction incurred by the state and counties.”
In 2020, Bordeaux is sponsoring amendments through HB1194 “to authorize federally recognized Indian tribes to receive PEACE funds.”
All tribes with jurisdictions overlapping South Dakota’s are on record in opposition to pipeline construction: the Cheyenne River Sioux Tribe, Crow Creek Sioux Tribe, Flandreau Santee Sioux Tribe, Lower Brule Sioux Tribe, Oglala Sioux Tribe, Rosebud Sioux Tribe, Sisseton Wahpeton Oyate, Standing Rock Sioux Tribe, and Yankton Sioux Tribe.
The pipeline bills are among several that Bordeaux has targeted for passage this session.
Closely related is his HB 1135, which states, “The Governor may not mobilize any National Guard forces or any law enforcement agency in the state pursuant to a mutual aid agreement between South Dakota and any other state without first consulting the Legislature.”
His HB1145 would “authorize certain tribal members to attend certain institutions of higher education or postsecondary technical institutes without payment of tuition.”
On Jan. 30, Bordeaux put out a social media call saying, “Follow these bills and come testify in committee. All are welcome to join in and be heard. I need help getting word out to legislative committee members about our concerns as natives here in South Dakota. I have a few other bills coming as well.”
The State-Tribal Relations Committee members are sponsoring SB66 “to provide for the creation and funding of Oceti Sakowin charter schools” that would “provide instruction in accordance with the Oceti Sakowin Essential Understandings and Standards” and required studies in native language.
HB1132 would create a “Commission on Indian Affairs for the purposes of improving services to American Indians in this state and promoting communication and relations between the state and each of the nine federally recognized Indian tribes in South Dakota.”
HB1134 would bar the state and its political subdivisions from prohibiting “any person from wearing traditional tribal regalia or objects of cultural significance or from the singing of an honor song at a school honoring or graduation ceremony.”
HB1143 says: “The use of racially derogatory or discriminatory school or athletic team names, mascots, nicknames, logos, imagery, or celebrations depicting Native Americans and Native American culture is prohibited in any public-school district.”
HB1196 would remove the statute of limitations on claiming civil damages for childhood sex abuse until 2022 and allow victims over 40 to enter claims against entities “other than the person who perpetrated the actual act,” such as boarding schools.
HB1185 would bar state offices and their subdivisions from criminal background checks of a prospective employee until after a personal interview – excluding school offices and such entities as the Department of Corrections that have statutory duties to conduct the research.
Bordeaux said he expects to support Heinert’s SB127 for a $60,000 appropriation from the general fund to the state Department of Tribal Relations, “for purposes of awarding grants to provide horse racing relays in South Dakota.”