PIERRE, S.D. (KELO) — A state lawmaker wanted to know Tuesday whether South Dakota’s governor would be bringing any pipeline legislation to the 2020 session similar to what a majority of the Legislature approved in March but parts of which a federal judge later rejected.
Senator Red Dawn Foster, a Pine Ridge Democrat, was referring to a state law that would have punished some acts of “riot boosting” as part of protests against oil pipelines.
Foster, a member of the Oglala Sioux Tribe, put the question to state Tribal Relations Secretary David Flute during a meeting of the Legislature’s State-Tribal Relations Committee. She also wanted to know whether tribal governments would be more seriously consulted this time.
But Flute, who lost his re-election bid for chairmanship of the Sisseton-Wahpeton Sioux Tribe in November, didn’t say what Republican Governor Kristi Noem might be planning.
“I do not have an answer for that at this time. I apologize for that, senator,” Flute told her.
The state Water Management Board meanwhile plans a third round of hearings on Keystone XL pipeline permits next month. The board is also considering applications from Wink Cattle Company and from Tom and Lori Wilson to expand well permits to supply water to camps for KXL construction workers.
In the free-speech lawsuit, U.S. District Judge Lawrence Piersol ordered September 18 that parts of SB 189 and two older laws were unconstitutional violations of free speech. The governor and state Attorney General Jason Ravnsborg decided to pay $145,000 to the plaintiffs and accepted the judge’s decision, which also left some parts in place, rather than pursue a federal appeal.
Their partial surrender led Senator Lance Russell to reconsider his support for SB 189. Russell, a Hot Springs Republican and lawyer, also voted for Noem’s SB 190 that created a pipelines bonding fund.
Russell said Tuesday the governor’s office used “a strong-arm effort” to pass the two bills. He said they should have gone through the standard legislative process, with individual hearings in committees of the Senate and the House, rather than one hearing apiece by the Legislature’s Joint Committee on Appropriations. He said it was poor planning to have the hearings while tribal elected leaders were in Washington, D.C., and that sent the wrong message to tribal citizens.
He also argued the court case shouldn’t have been abandoned. Russell lost the Republican nomination for attorney general to Ravnsborg last summer.
Russell on Tuesday told Flute the committee would be a good venue for the governor to get tribal perspectives if she plans more pipeline legislation. He said the panel’s December 18 meeting would be “the perfect opportunity” for tribal governments to review Noem’s bills, if she has any, “because it wasn’t vetted properly last time.”
Russell said Flute had been “palms up” with the committee and called Noem’s maneuvering this year a “flub” and “miscalculation.” Russell said he doesn’t want any further legislation overruled in federal court and said many people don’t think Noem has been hearing them.
Flute replied, “We will definitely visit with senior staff and share that invitation with them to get that to the governor.”
Flute appeared before the committee to provide an update on his first 11 months as secretary. He said spring flooding hurt many of the nine reservations that share the same geography as the state, and some places were damaged again by heavy rains this fall.
The committee’s chairman, Representative Shawn Bordeaux, encouraged Flute to keep working with the Rosebud Sioux Tribe on a joint-powers agreement regarding law enforcement against methamphetamine use. Bordeaux previously served on the Rosebud Sioux tribal council.
Flute said the agreement couldn’t get support from a majority of the current Rosebud council members.
“They were very close before certain individuals walked in the room and set things in a different direction,” Bordeaux said. The meeting was broadcast on the radio and Bordeaux also watched social-media comments. “I don’t think people trusted that you meant what you were saying,” Bordeaux said.
Bordeaux suggested that Flute make another attempt to further educate Rosebud reservation residents. “I think you’re ahead of your time,” Bordeaux said. “I really want to applaud and encourage you to keep down that path.”
Flute said state officials wanted a three-month trial. “I understand that history there. We need to improve it,” Flute said. He compared it to trust in a marriage, or trust with a prized horse or dog. “And this was at the invitation of the tribe,” he said.
Flute said tribal news organizations misinterpreted that state government initiated the proposed agreement. “I took offense at that. I didn’t write a response,” Flute said.
On the governor’s invitation to display tribal governments’ flags in the state Capitol rotunda, Flute said the governor was “very clear” it wouldn’t be done without tribes’ participation and approval. Flute said he was caught off-guard when tribal officials called asking for the return of their flags after the pipeline legislation had been introduced.
“There were no flags hung up in the state Capitol. None whatsoever,” Flute said. He said it was another instance where various media outlets got the story wrong: “I’m not afraid to say it, but the fake news doesn’t help.”
Bordeaux said he had offered legislation, patterned after North Dakota, to hang all nine tribal governments’ flags in the Capitol. He said it would have showcased culture and respect. “I did pull the bill, as you know,” Bordeaux said. He said Flute, as a former tribal chair, was “an excellent choice” for secretary. “The flag thing we’re going to have to put on the back burner until the tribes are ready,” Bordeaux said.
Bordeaux said tribal grants can be of great aid and suggested the state tribal office could help tribal governments apply to the federal government. “If the state would work with the tribes, it would bring a lot more money into South Dakota,” he said.
Senator Troy Heinert, also a Rosebud Sioux member from Mission and the Senate’s Democratic leader, thanked Flute for work getting Heinert’s indigenous-languages bill passed. “Your leadership on that was tremendous. I really appreciate that,” Heinert said.
Flute said the governor still wants to improve her relationship with Oglala Sioux Tribe officials after she was “unwelcomed” and added that she still faces the threat of banishment from the reservation if she visits again. Flute said there isn’t a majority yet to rescind the resolution that the Oglala Sioux council passed.
Bordeaux said he looked forward to seeing Flute in December and asked that he relay Russell’s invitation to the governor.