“An Act to preserve the use of public land, to ensure free travel, to enhance emergency response, and to declare an emergency” passed both chambers of South Dakota’s legislature and was signed into law by the governor in March 2017. This legislation allows him to establish “public safety zones,” in which protest activities can be limited and violators could face jail time. The law also imposes penalties on individuals who impede traffic by standing on highways.
Republican Governor Dennis Daugaard’s administration introduced this legislation, and the governor signed SB 176 into law on March 13, 2017. “My administration brought this bill to protect those who want to peacefully exercise their First Amendment rights, as well as the people who reside in and travel through our state,” the Governor said in a press release. “Legislators on both sides of the aisle voted to support this bill and I appreciate their recognition of the urgency of this issue.”
SB 176 allows the governor to establish “public safety zones,” in which gatherings of more than 20 people are prohibited. Individuals found in violation of the protest restrictions could go to jail. Specifically, a first offense carries a minimum of 10 days, and a second offense within two years would be considered a felony, according to Courthouse News Service. “The governor’s goal is to be certain that the state has the authority to protect public safety and private property,” Governor Daugaard’s chief of staff, Tony Venhuizen, told Courthouse News Service. “The governor respects the rights of peaceful protesters and he knows the vast majority are not violent or dangerous.” He continued, “The reason for bringing this legislation is the protests in North Dakota and the upcoming construction of the Keystone XL pipeline in South Dakota. Governor Daugaard wants to learn from North Dakota’s experience to be prepared.”
Venhuizen was referring to the turbulent protests that occurred throughout 2016 in North Dakota regarding the Dakota Access Pipeline. Although construction on the pipeline was completed by the time this legislation was passed, President Trump’s support for the Keystone XL project prompted Daugaard to take action to regulate potential upcoming protests , according to South Dakota Public Broadcasting (SDPB). “We must be prepared to deal with those professional agitators who may come here to create chaos through unlawful means,” a spokesman for the governor told the Argus Leader.
Native American leaders denounced this legislation, expressing concerns about the law’s potential impact on civil liberties. “SB 176 comes dangerously close to restricting constitutional rights,” Remi Bald Eagle, a member of the Cheyenne River Sioux Tribe, told Courthouse News Service. “Nowhere in the constitution did it say anything about how many people can assemble peaceably. We also feel that the right of way on roads is for the public, which includes all the freedoms endowed to the public by the bill of rights. The tribe doesn’t support the blocking of traffic, but we do support the people’s right to assemble to the right and left of the road.”
Additionally, Native American leaders criticized the governor for failing to consult with them about this legislation. After signing the bill, Daugaard invited nine tribes to participate in a roundtable discussion about “potential protests,” according to a press release from his office. “If you want to have meaningful engagement with the population of the state, then you get their consultation prior,” Bald Eagle told the Courthouse News Service.
This legislation passed the State Senate by a margin of 21-13, and the State House of Representatives on a vote of 49-18.
The bill was initially proposed in the Senate in the form of a “vehicle bill,” something the Bismarck Tribune describes as “essentially [an] empty [vessel] when introduced with just the faintest hint of what is yet to come.” According to the Tribune, lawmakers use vehicle bills to avoid lengthy debates over controversial legislation. However, vehicle bills have been the subject of criticism from lawmakers on both sides of the aisle. The Tribune reports that a dozen Republican lawmakers wrote to South Dakota’s attorney general to complain that vehicle bills “effectively [bypass] the public committee process on the intended content, which deprives the public of their right to an open government provided for in our S.D. Constitution.” While SB 176 was initially introduced as a vague, 32-word bill relating to public safety, it was substantially amended and became a controversial 1,500-word bill.
Prior to the bill’s passage, tribal leaders threatened “to sue the state and close down reservation borders and highways,” if the legislation was approved, reports the Argus Leader. Brandon Sazue, chairman of the Crow Creek Sioux Tribe, claimed the bill unfairly targeted Native Americans, asking, “are they calling it an act of terrorism? Are they calling us terrorists?” reports the Argus Leader. “That’s why it’s going to divide. Because a majority of the protesters up at Standing Rock are Native American . . . And South Dakota is jumping on board and trying to copy North Dakota.”
State Representative Shawn Bordeaux, a Democrat, expressed skepticism about the legislation. “They’re all a little freaked out about state government,” he told SDPB. “We all have concerns about stuff being rammed down our throats.” State Representative Dan Kaiser, a Republican, also expressed frustration with the bill. “All of these laws are already on the books. Trespassing. Already a crime. If law enforcement moves in to grab a trespasser and somebody jumps in front of them, to physically obstruct them, well, that’s obstruction, so that’s a class 1 misdemeanor, that’s a crime. Blocking a road. Already a crime. All of these things are already covered,” Kaiser told SDPB. “I don’t know what kind of statement we are trying to make with this, but in my estimation it’s a very poor one.”
Other lawmakers defended the legislation. State Representative Larry Rhoden, a Republican, supported the bill, telling SDPB, “This isn’t about disrupting peaceful protestors that come and exercise their constitutional right to free speech. It’s about protecting them also, guaranteeing their rights by keeping the troublemakers—setting up a process where we can deal with the troublemakers and keep them out of the process,” Rhoden says.
Governor Signed Legislation Into Law
Governor Dennis Daugaard signed this legislation into law on March 13, 2017. The law included an “emergency clause,” reports the Courthouse News Service, rendering it effective immediately.
Prepared by Will Haskell ‘18
August 29, 2017