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Native American activists say new South Dakota protest law hinders free speech

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Image: Dakota Pipeline Protests
Protestors gather at the Dakota Access pipeline in Standing Rock, North Dakota, in the fall of 2016. -
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Josue Rivas NDN Collective file
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Nick Tilsen, a citizen of the Oglala Lakota Nation, attended his first protest before he was even 5 years old.

Since then, he hasn't stopped — and that includes joining protests at Standing Rock in 2016 in an ultimately failed effort to stop the construction of the Dakota Access Pipeline.

"I've dedicated my life to improving quality of life for my community and my people, who have been so under-resourced," said Tilsen, who is the president of NDN Collective, an advocacy group representing indigenous people. "Being an indigenous person in this country, this has been my whole life."

So when South Dakota lawmakers introduced the "Pipeline Package" in early March, Tilsen quickly took notice. He worried it would affect his constitutional right to freedom of assembly.

The package of pipeline bills, signed into law Wednesday by Republican Gov. Kristi Noem, have indigenous, environmental, and First Amendment advocates concerned, mainly because of SB 189, also known as the "Riot Boosting Act."

SB 189 allows the state to sue any individual or organization for "riot boosting" or encouraging a protest where acts of violence occur. That means individuals can be held criminally or civilly liable even if they "do not personally participate in any riot but directs, advises, encourages, or solicits other persons participating in the riot."

Passed in preparation for the construction of the Keystone XL oil pipeline, the bill is "a legislative solution to ensure the safety and efficiency of pipeline construction in South Dakota," according to a statement issued by Noem.

While it's unclear when the Keystone XL will begin construction, President Trump issued a new presidential permit on Friday for the Keystone XL, speeding up the long-delayed process.

Tilsen finds the new law troubling. "They're basically criminalizing anybody who is standing up for their rights and putting their voice out there — and those who support us," he said.

After learning about the bill, Tilsen, who lives on the Pine Ridge Reservation, reached out to a local lawyer, who put him in touch with the American Civil Liberties Union (ACLU) of South Dakota. Along with a group of plaintiffs, including the Sierra Club, the ACLU filed a suit Thursday challenging SB 189 and two mirroring criminal statutes, saying the laws violate the First and Fourteenth Amendment rights of free speech and equal protection under the law.

Is the 'Pipeline Package' legal?

"I fully support the freedoms of speech and assembly, but we must also have clear expectations and the rule of law," Noem said in a statement after the package of laws passed.

The ACLU think the SB 189 goes too far.

"Our concern and the reason we are filing this case is that it will silence dissent and chill people from speaking out," Vera Eidelman, one of ACLU's attorneys on the case, said.

The ACLU believes under the law, people who want to protest pipelines or encourage others to protest would now risk civil liabilities and prosecution if a "riot" — under the state's definition — were to occur. Eidelman thinks this would lead to self-censorship and therefore a loss of First Amendment rights.

"The response of the government to protest ought to be engaging on the issue, listening to the concerns of the people that are speaking out, and trying to respect and work with them — not stifle First Amendment rights," Eidelman said.

She also fears the South Dakota government can apply this law "broadly" and "arbitrarily."

Under the law, if an organization were to encourage people to attend a protest via social media and a fight then broke out there, that organization could now be held civilly liable, Eidelman explained.

Noem said in a statement the laws are meant to "make clear that we will not let rioters control our economic development," and to combat "out-of-state money fueling riots that aim to shut down the pipeline build."

Josue Rivas
People stand near a handcrafted bridge. Cannon Ball, North Dakota circa November 2016.Josue Rivas

Elly Page, a lawyer and legal adviser specializing in freedom of assembly for the International Center for Not-for-Profit Law said South Dakota's "Pipeline Package" is one in a growing trend.

"We've seen more than 20 bills in the past two years that targeted pipeline protests implicitly or explicitly," Page said.

Three states, including South Dakota, have passed such laws, and laws are pending in 10 others.

Under SB 189, TransCanada, the maker and operator of the Keystone Pipeline, could take money from organizations or individuals who "riot boosted." This worries Page.

"That uncertainty, especially in combination with the law of civil liability, is more likely than not to discourage people from organizing and protesting in the first place," she said.

"One of the the tools used by authoritarian governments to silence dissent is legal restrictions on protest," Page said. "I don't think it's hyperbolic or far-fetched to say that something similar is happening here."

TransCanada did not respond to NBC News' request for comment.

'It's Obvious As Ever That They Are Targeting Us'

Dallas Goldtooth, who is Dakota and Diné, is one of the plaintiffs in the suit. An organizer for the Indigenous Environmental Network, he thinks the pipeline bills directly targets Native people.

"The most active and present opponents of this project have been Native people," Goldtooth, 35, told NBC News. "When Keystone XL was proposed, it was tribes and grassroots organizers who stepped in and delayed it."

Tilsen agrees. "Pipelines come through indigenous territories" and "have no respect for our sovereignty," he said, adding that commonplacepipelineleaks pose a risk to his community's water. In 2017, at least 200,000 gallons of oil leaked from the Keystone Pipeline in South Dakota.

The Keystone XL, Goldtooth said, "crosses the Mni Wiconi water system, which provides drinking water to Cheyenne River, Rosebud, and Pine Ridge Indian Reservations"

Goldtooth explained "the mobilization at Standing Rock was historic," which worried nearby lawmakers. "Immediately on the heels of that fight," he said, "legislators in South Dakota were actively talking about how they do not want to see that happen in South Dakota."

While justifying the "Pipeline Package" to the legislature, South Dakota referenced "661 professional protesters" in North Dakota who were arrested at Standing Rock.

But South Dakota legislators don't believe that citing Standing Rock means they are targeting Native communities.

"There is nothing in these bills that 'target' Native American tribal members," Noem's press secretary Kristin Wileman said in a statement provided to NBC News. "In fact, there is not a single reference to tribes or Native Americans in the bills. The governor does not expect South Dakota's tribal members to be rioters."

That's an argument Goldtooth doesn't buy.

"It's obvious as ever," he said, "that they are targeting us."