Settler State Repression: Standing Rock Battles Continue in the Courts
Indigenous rights activists at a tipi camp set up to protest the Dakota Access pipeline, on the National Mall in Washington, DC, on March 9, 2017. (Photo: Al Drago / The New York Times)
As a means of making bombing, sanctioning or invading other countries palatable to the general population, the US government has consistently used the actions of other governments against their own people as an excuse.
Those actions have included the use of chemical weapons, torture, setting dogs against people, beatings, surveillance, forcibly removing people from their land, jailing them unjustly, holding staged trials, and issuing verbal and physical threats, among many others.
Yet, these same actions have been carried out by the US government, state governments and private security forces working on behalf of a private pipeline company (with the full backing of the US government) against Native people at Standing Rock.
This story is not new.
"The settler state arrives as an armed white man intent on staying," said Nick Estes, who is Kul Wicasa from the Lower Brule Sioux Tribe and is a doctoral candidate in American Studies at the University of New Mexico, in an interview with Truthout. "Second amendment rights were intended to arm the white man. The police and military have always been the arm of the state to facilitate Indigenous dispossession and normalize it."
Estes, who studies colonialism and decolonization, border town violence, police violence, Indigenous internationalism, Lakota treaties and history, and the history and politics of the Oceti Sakowin, also cofounded The Red Nation, a Native-led coalition dedicated to Native liberation.
Nick Estes of the Lower Brule Sioux Tribe is a doctoral candidate in American studies at the University of New Mexico; he studies colonialism and decolonization and cofounded The Red Nation. (Photo: Courtesy of Nick Estes)
What has happened at Standing Rock highlights the fact that the land through which Energy Transfer Partners, the Dallas-based energy company in which Trump has a financial interest, has constructed the Dakota Access pipeline (DAPL) in contested territory.
"That land is not under North Dakota's control [since it is Native land] so they [the state] have to deploy themselves and a host of private security firms and resort to violent means, to secure its aim, which also reveals its fragility," Estes said.
And events at Standing Rock are far from over. Hundreds of court cases against Water Protectors continue. All of them underscore how the state and federal courts in North Dakota are functioning as little more than an adjunct to the repressive machine geared toward punishing those who peacefully stood up and spoke out against an illegal land grab.
Law Enforcement's Repression of Water Protectors
Rachel Lederman, a civil rights lawyer on the board of the Indigenous-led Water Protector Legal Collective, is leading a civil suit geared towards obtaining an injunction against the use of nonlethal weaponry like rubber bullets and exploding grenades against peaceful Water Protectors. She is thus coordinating the civil response around what she described to Truthout as "the law enforcement repression of the Water Protectors."
In her interview with Truthout, Lederman said that as the presence of Water Protectors at Standing Rock grew, "the repressive tactics by private security and law enforcement escalated steadily."
When Lederman arrived at Standing Rock, September 3, 2016, private security hired by DAPL "used attack dogs, mace, and drove trucks into Water Protectors who were simply on a prayer march and were surprised to find DAPL bulldozing through sacred sites."
She was eyewitness to the incident and described DAPL's private security as having "brutalized" Water Protectors while law enforcement "stood by and watched." After this was publicized, law enforcement took over, but Lederman said that she witnessed the pipeline's private security forces mixed in with them during their activities.
As events continued, law enforcement began making more frequent mass arrests, including one on October 22 when Water Protectors were told, at gunpoint, to get on their knees. During that event, roughly 125 Water Protectors, including two attorneys who were present as legal observers, were arrested.
At that point, law enforcement's response became "increasingly militarized," according to Lederman, and North Dakota's Morton County Sheriff's Department called in mutual aid from all over the state and surrounding states, as the governor declared a state of emergency.
Lederman, who is also the president of the National Lawyers Guild, S.F. Bay Area Chapter, is representing Vanessa Dundon, who was struck in the eye by a police-fired flaming tear-gas canister. Shortly after Dundon, who will likely lose her eye, was injured, 21-year-old Sophia Wilansky was struck by an explosive device that nearly blew her arm off.
"People have been held in fenced-in areas similar to dog kennels in Morton County Jail, elders have been strip searched and held overnight on cold concrete floors, not fed for long periods of time, shipped around to jails all over the state before being released, often many hours away from Standing Rock," Lederman said, explaining several of the brutal and repressive tactics used by the state to protect the oil company's interests. "Phone calls have been denied, and there has been a lot of abuse while in custody."
After October 22, the militarism continued to escalate with the use of sound cannons, chemical agents and impact munitions. The well-known incident of November 20 on Backwater Bridge included the use of high power water hoses on Water Protectors at night when temperatures were in the 20s, and the shooting of impact munitions, explosive grenades and tear gas canisters indiscriminately into the crowd.
"They were shooting at the medics in the back of the crowd, and hundreds of people were injured that night," Lederman said. "There were numerous serious injuries from impact grenades. That was the night Vanessa was shot in the eye. It was like a battle zone scene."
Immediately after this, Lederman became lead attorney in the filing of a class action civil rights lawsuit in federal court against the sheriff of Morton County. It was there that she and other lawyers asked the court to cease the use of what are referred to as "less-lethal weapons."
In that filing, Lederman and her colleagues presented more than 50 witness declarations, including one from Thomas Frazier, the former police chief in Baltimore, saying that at no point were law enforcement ever overrun by Protectors, and there was never a reason to justify such a high level of force. But the judge, who in a series of rulings has supported the pipeline company and its security forces (including the police), had other ideas.
"Judge Hovland, the presiding judge of the US District Court in North Dakota, denied our request for a preliminary injunction," Lederman said. "The case seeks both the injunction and damages, so we've filed an appeal to the 8th Circuit Court of Appeals."
Lederman's outlook for repression, regarding demonstrations at Standing Rock, is grim.
"The reason there are less protests now is a direct result of the law enforcement violence," she said. "We believe there is an ongoing chilling of free speech to express both political and religious beliefs in opposition to the pipeline due to the district court basically sanctioning the excessive force of law enforcement."
Nevertheless, she expects their appeal to move forward, and added, "I think it is fairly important to continue to challenge what we see is a blatantly unlawful use of indiscriminant force."
She notes that the level of repression has been "frightening," including the infliction of serious injuries.
"Attorneys in allied groups will continue to fight for people's right to protest -- because Trump or no Trump, it is unconstitutional to shoot people without reason, or to arrest people who are not breaking the law," she concluded. "So we, as Water Protector Legal Collective and other allied legal groups, will continue to challenge these repressive tactics by law enforcement."
In a glimmer of hope, the 8th Circuit Court of Appeals on April 24th denied law enforcement's motion to dismiss the Water Protector's appeal from the denial of the injunction.
The Judge Must Go
Jeffrey Haas has been a criminal defense and civil rights attorney for nearly half a century. A member of the Water Protector Legal Collective, he has previously spoken with Truthout at length about the legal issues at Standing Rock.
Haas and cocounsel Bruce Nestor of Minneapolis represent Brennon Nastacio in federal court, where Nastacio is charged under a statute passed in 1968 to allow federal prosecution of mass protests. Charged with "impeding law enforcement" during a "civil disorder," Nastacio faces a mandatory minimum sentence of 10 years if convicted. Nestor says this rarely-used federal statute "sets a dangerous precedent, allowing federal prosecution of any mass protest where law enforcement makes claims that it constituted 'civil disorder.'" Haas and Nestor have filed a request for Judge Hovland to recuse himself from presiding over Nastacio's federal criminal case. In support of the Motion for Recusal, they have cited several instances of Judge Hovland making statements clearly depicting Water Protectors and their motives in very negative ways.
One of the defendants, Red Fawn Fallis, also filed an affidavit requesting that Hovland recuse himself, and the Water Protector Legal Collective recently released a press release on this as well.
Jeffrey Haas is a member of the Water Protectors Legal Collective and author of The Assassination of Fred Hampton: How the FBI and the Chicago Police Murdered a Black Panther.(Photo: Courtesy of Jeffrey Haas)Haas told Truthout recently that Hovland's public statements and judicial rulings have put him in a position where he cannot appear to be acting in an unbiased fashion on any of the Standing Rock cases before him. Speaking to Lederman's comments on Judge Hovland's denial of her motion for a preliminary injunction, Haas illustrated Hovland's continuing support for law enforcement.
"Not only did Judge Hovland deny the motion for preliminary injunction, he did so without a hearing," Haas explained. "That means he accepted the sheriff and other law enforcement's affidavits as truthful, despite the fact they were challenged by contrary affidavits submitted by plaintiff's witnesses and experts."
In a case like this, with a disputed set of facts, it should be clear that a hearing is necessary, according to Haas.
Hovland, before he was on the bench, worked for the law firm that was hired to defend all the law enforcement agencies, cities and counties in North Dakota. One of the families in that same firm owns a large oil company in North Dakota.
In another example of Judge Hovland's rulings favoring law enforcement and the government, in the pending federal criminal case against Red Fawn Fallis, a federal magistrate judge allowed Fallis -- who was charged in a NoDAPL-related incident -- to be released from detention. The government appealed that ruling. "Before her attorney Bruce Ellison even had an opportunity to respond, the judge overruled the magistrate, accepted the government's position and continued the detention of Red Fawn until her trial," Haas said. "So he has a history of not only ruling for the government, but doing so without a hearing -- or in this instance, [without] even giving the defendant an opportunity to respond.
According to Haas, with regard to the state criminal cases, there have been many instances of overcharging Water Protectors, or mischarging them with things they didn't do.
Dozens of criminal trespass and riot charges have simply been dismissed. For instance, a group of Water Protectors was charged with riot and trespass for an incident on October 10. Defendants came to court from many miles away, ready for trial. Their lawyers filed motions stating the state could not prove the individuals had been given notice of trespass, nor had it shown any of the defendants had been in a riot.
"The judge said he would dismiss the cases due to the lack of evidence, so instead, the prosecutor dismissed those cases and then filed new charges of interfering with a public officer in his duties, and put out warrants for the same people -- who were then forced to choose between coming back in six months for a new trial with new charges, or entering a plea and getting a deferred sentence, which many of them have done," Haas said.
Many Water Protectors have been forced to take plea deals in cases where charges against codefendants were dismissed, in order to avoid the significant costs and time needed for travel, according to Nestor.
Haas explained what that scenario looks like for Water Protectors who have been charged: "You've come 1,000 miles. It's the day before trial and it's clear the state can't prove their case. So they dismiss that case and bring a new charge. So you have to post a new bond, plus there is a warrant out for your arrest until you post that bond. Then you have to come back in six months to face a trial on that new charge. So there is a lot of pressure on you just to get it over, without having to do time, or to not have a record, so a number of people have accepted the deal."
Who Is the Terrorist?
Haas and Nestor are also representing Brennon Nastacio, a Water Protector from San Felipe Pueblo in New Mexico, in state court on charges related to an incident when he de-escalated a situation involving a DAPL security contractor, Kyle Thompson, who was carrying an assault rifle and pistol as he attempted to enter the resistance camps on October 27. At a point when Thompson was facing Water Protectors with a loaded AR-15 assault rifle, Nastacio resolved the situation by having him hand over the gun and himself to the Bureau of Indian Affairs (BIA).
The BIA then turned Thompson over to the FBI, who transported him to the Morton County Sheriff, who released him. Shortly thereafter, Nastacio was charged with a Class C Felony for allegedly terrorizing Kyle Thompson despite the fact that ample video evidence -- including this video of the entire incident -- backs up Nastacio's account of the events.
Nastacio told Truthout he was truly shocked to find out over Facebook that he was on the Morton County Sherriff's most-wanted list.
"I kept wanting to wake up and find this all not to be true, but I've not woken up yet to that," he said. "I couldn't believe it. I came upon a tense and fearful situation that day, and acted in a manner thinking I was saving a lot of people's lives, including the guy with the rifle. I have family in law enforcement, and they were all amazed. They tell me I did nothing wrong."
Nastacio is now back in Colorado working at his home remodeling business in Denver, awaiting his trial.
He is demoralized by what has happened to him.
"Being Native American, we've dealt with racism, but after being at Standing Rock and witnessing what Natives go through on a daily basis for hundreds of years, it's disheartening," he said. "I've seen a lot of injustice."
Every Sitting President Is a "Town Destroyer"
In addition to all of these strategies, Haas outlined numerous repressive tactics used by the State against the Water Protectors. These included mass arrests as an attempt to deter protests, incarceration and the setting of high bonds, police in riot gear, massive shows of force and federal charges against people perceived as leaders of the protests. Additionally there was a major increase in federal involvement by the BIA, FBI and ATF (Alcohol, Tobacco and Firearms.)
Despite this widespread repression of people nonviolently attempting to keep their water from being polluted, and intensifying criminalization of dissent of any kind, Estes sees Standing Rock as a touchstone of resistance going forward.
"It's evolved into a more widespread movement and it's raised the consciousness of people," he said. "There are more political possibilities now for the movement than there were a year ago."
And with Trump poised to sign an order that will cause even more pipelines to be built, the stage is set for broader confrontation.
Estes cautions against those who think Trump is acting in a truly exceptional way.
"The Haudenosaunee [Iroquois], who fought George Washington ... call every sitting president 'town destroyer,'" he said. "I think that is apt."
Estes sees the state violence at Standing Rock as a continuation of state brutality against Indigenous people across the US, which runs alongside tactics like naming cruise missiles "Tomahawks" and helicopters "Blackhawks."
"These all come from 19th century Indian wars," he said. "Standing Rock is a continuation of these wars. Since the 1787 Northwest Ordinance, which spelled out the use of 'just war' against Indigenous, the message has been, 'Acquiesce to us, or face the consequences' -- which means negotiate land cessions and concede to the US government or war will be waged against you. And that is exactly what happened at Standing Rock."
Moreover, Estes believes that during this historical moment, when we are talking about Indigenous decolonization, we need to also be discussing what is happening regarding budget cuts to schools, healthcare and social services.
"All these issues are deeply connected, and Standing Rock was a moment of a larger movement," he concluded. "The settler state uses police violence for their aims, and out of that, you can violently secure the trespass of a pipeline to continue dispossessing Indigenous land and water. But you cannot dispossess us of our experience of Standing Rock, as that will reverberate far into the future."