By Camille Erickson
The fight to protect Water Protectors who face state and federal charges from the Indigenous-led Dakota Access Pipeline resistance at Standing Rock is far from over.
At the Water Protector Legal Collective (WPLC), “we don’t leave people behind,” declared Andrea Carter, managing attorney. “Many of the people who were arrested [at Standing Rock] put their bodies on the line and need to be supported by the movement, even after the close of camp.”
Beginning in 2016, the WPLC provided legal support on the front lines of the Dakota Access Pipeline resistance at Standing Rock Sioux Reservation in North Dakota. Led by Executive Director Terry Janis (Oglala Lakota), the organization continues to provide accessible criminal defense and legal representation in state and federal court at no cost to Native and non-Native Water Protectors.
In a recent statement foreshadowing a new strategic plan, Janis confirmed his organization’s ongoing support. “The fight at Standing Rock to protect the water in opposition to the violent and militarized state response during camp continues today,” he said.
For over 11 months, hundreds of Indigenous nations in the Americas converged to obstruct the construction of the $3.8 billion Dakota Access Pipeline at Standing Rock. Stretching over 1,170 miles across the Midwest, the pipeline cuts directly through sacred land and threatens to contaminate the drinking water for both the Standing Rock Sioux and over 17 million people along the Missouri River. Native and non-Native allies – known as Water Protectors – peacefully gathered to defend their rights.
Yet, Water Protectors faced violent responses from private security forces and arrest from law enforcement during their encampment.
“There was a concern with law enforcement coming into camp, and other issues that might arise,” Carter said. “So [a legal tent] began through informal outreach. Indigenous folks who had been setting up the camp knew attorneys and other legal professionals and called them out to support and be there for whatever needs arose.”
Mounting tensions came to a head on September 3, 2016, when security guards used dogs to attack Water Protectors, harming at least six people. Private security also pepper-sprayed 30 people. After an investigation into the incident, Morton County Sheriff’s Captain Jay Gruebele later admitted that the dog handlers lacked proper licenses to conduct security work in the state.
As a member of the WPLC legal team, Carter remains fiercely committed to Indigenous rights. She arrived at Standing Rock Sioux Reservation in October 2016 from California to provide legal support. She watched the camp rapidly grow as thousands of Water Protectors, galvanized by the movement, poured into North Dakota from across the globe. As the camp swelled with people, arrests of Water Protectors, coupled with police and security misconduct, only increased with charges, including trespassing, resisting arrest, and participating in a riot.
In one month alone, Water Protectors were met with tear gas, pepper spray, rubber pellets, sound cannons, and arrest from law enforcement in its attempts to evacuate individuals occupying roads near the camp. On Oct. 27, 2016, during a confrontation, 147 Water Protectors were arrested and some slapped with felony charges of Civil Disorder and Use of Fire to Commit a Federal Felony Offense. The following month, Brandy Toelupe, an attorney with WPLC, described the conditions arrestees endured following their arrest that day. “The Water Protectors were held for 48 hours or more, forced to remove outer layers of clothing, crowded into freezing chain-link cages, and denied food, water and bathrooms for long periods […],” Toelupe said. “They were strip searched and taken to jails all over North Dakota.”
Former Standing Rock Sioux Chairman David Archambault also submitted a complaint to the Department of Justice. He claimed that there was an “overall militarization of law enforcement” against Water Protectors and demanded an investigation that month.
In the wake of these mass arrests, what started as an informal legal tent at the camp quickly grew into a tenacious organization defending hundreds of lives afflicted by persecution. Over the course of a year, the number of Water Protectors facing state charges ballooned to 835 people. An urgency developed to formalize the legal entity into a fiscally sponsored nonprofit organization.
WPLC now leads the fight to protect each of the individuals who were charged. While the organization maintains on-the-ground operations in North Dakota, its support for these hundreds of legal cases reaches far beyond state lines.
As of June 5, 2018, of the 835 state cases, 664 cases have been concluded, with a majority of them dismissed (333) and acquitted (24). 19 defendants have been convicted on the state level.
“We have been very, very successful in getting most of these cases dismissed or acquitted, with very few convictions,” Carter said. To her, these victories set a precedent for future movements for Indigenous rights. “I think [these successes] have a push-over effect into the next movement if people are ensnared in the criminal justice system,” she added.
On May 24, a charge against Water Protector Peji Hota Win (Saige Pourier) was dismissed in court. Two days prior, her two other charges were also dismissed. Following her court appearance, Peji Hota Win told WPLC, “I’m really happy and proud of the outcome. As an indigenous person we know this system is unjust, so to be able to walk away with this victory is a victory for us all. I know that prayer works and that staying in prayer is what allowed this to happen.”
Challenges of caseload, geography, and bias
WPLC sees accessible and free legal representation as a vital need to justice, and it remains resolute in protecting the most vulnerable. Still, in the case of Standing Rock charges, its ability to obtain effective representation for Water Protectors was outmatched by the state.
As soon as attorneys began taking on cases in defense of Water Protectors in 2016, geography became a challenge. WPLC knew immediately that the quantity of cases far outstripped the supply of licensed attorneys in the state who could effectively represent the accused. “Anytime you have mass-defense situations with that many cases, I think it presents a huge challenge and endeavor,” Carter said.
In December 2016, WPLC filed a petition in the North Dakota Supreme Court to revise the pro hac vice statutes, thereby enabling out-of-state attorneys not licensed to practice in North Dakota to represent Water Protectors facing state criminal cases.
A deluge of affirmative comments from the public advocating for Water Protectors’ rights to due process streamed into the Supreme Court. Soon after, a special provision was granted in WPLC’s favor.
But the fight was far from over as attempts to thwart WPLC’s efforts continued. Last September, judges asked the North Dakota Supreme Court to reverse the special provision that admitted out-of-state attorneys. The judges were denied this request.
Despite the ruling in their favor, WPLC has continued their steep climb to obtain justice for Water Protectors in North Dakota. In court, Carter witnessed charges against Water Protectors that she said were “trumped up, escalated, and enhanced over what people should be charged with.”
There have also been repeated legislative attempts to change laws that would increase penalties for mass mobilization efforts, such as protests and expressions of dissent. According to Carter, “we’ve seen active lobbying from law enforcement from the North Dakota Peace Officers Association to try to increase the riot statutes from being a misdemeanor offense to a felony offense.”
Trumped-up charges and penalties against Water Protectors also have ramifications on future movement building. The threat of a felony conviction on organizers’ records can chill future protests or participation in social justice efforts. The stakes are high. “They have these criminal charges that go on their record and it stays with them,” Carter said. “It becomes a future deterrent to work and activism.”
To Water Protector Leoyla Cowboy (Diné), the federal charges against her husband, Michael “Little Feather” Giron, will have an indelible impact on their family – especially when he seeks employment or housing after his release.
“Little Feather is a political prisoner for the rest of his life,” she professed, “he’s going to have these [charges] mark him […] Right now, solidarity is vital.”
Since late 2016, the National Lawyers Guild reports that 58 anti-protest bills have been put forward in 31 U.S. states. In the North Dakota Legislature, a bill was introduced to eliminate any liability for drivers who harm protesters occupying public roads. The bill did not pass, but these efforts point to a systematic effort to further criminalize peaceful dissent and First Amendment rights.
What’s more, Indigenous people and those most marginalized risk the most on the frontlines of a struggle. The justice system disproportionately targets Native lives. According to the Lakota People’s Law Project, Native men are incarcerated at four times the rate of white men, and Native women are incarcerated at six times the rate of white women.
Implicit bias in the courtrooms of North Dakota runs deep, too. To Carter, the most significant challenge was the implicit bias she witnessed against Water Protectors in the criminal justice system, public opinion, and police force in North Dakota. A study conducted by the National Jury Project, published in Oct. 2017, declared that 77 percent of Morton County’s potential jurors in Morton County believed that defendants from Standing Rock were guilty.
To Cowboy, “the government and the justice system are completely biased […] and the violence against us has become extremely normalized.” Having witnessed Little Feather navigate the criminal justice system, she thinks the bias they experienced stems in part from the high number of North Dakota residents depending on extractive industries for their livelihood.
“North Dakota is an extraction state,” she explained, “people grow up with family in the military, police, prisons, or the oil industry […] They grow up thinking it’s okay to extract resources because that’s how they make money. But the reality is this system is not going to sustain itself and hasn’t.”
Moreover, residents employed in these industries often protect their access to oil and capital through “any means necessary, even if it means [deploying] water tanks or throwing civil disorder and federal charges at people,” said Cowboy.
Given these barriers, WPLC continues to recruit attorneys from across the country to defend Water Protectors. “We’ve seen much different outcomes in their cases if we don’t provide zealous, accessible advocacy and defense representation to people. We see almost a reverse in terms of conviction rates,” Carter said. “I think everyone has a responsibility to support those who are risking the most.”
Water Protectors with federal charges face high risk
These challenges extend to Water Protectors facing charges on the federal level.
“Particularly for the federal cases, people often risk harsh sentences and high penalties. It tends to hinder people from fighting their cases out because there are such high stakes and high risks,” Carter said.
Three Water Protectors who faced federal charges, Red Fawn Fallis, Michael “Rattler” Markus, and Michael “Little Feather” Giron, accepted non-cooperating plea deals. Dion Ortiz and James “Angry Bird” White also face federal charges; they await trial.
On May 30, Little Feather, a member of the Coastal Band of the Chumash Nation, was sentenced to 36 months in federal prison in a non-cooperating plea agreement. Incarcerated since March 9, 2017, he is the first Water Protector to have a federal case conclude with substantial prison time.
Little Feather’s wife, Leoyla Cowboy, said to WPLC, “We are so grateful to finally be able to start counting the days until Little Feather will return home to his family and community and we appreciate all the amazing support we have received. In this historic movement moment it is critical to maintain solidarity with those who stepped up and are now being targeted as leaders. The legacy of genocide and broken treaties has shown us that when indigenous people stand up to protect the water and the land from the colonization of resources, we will always be met with repression and violence. This struggle continues.”
Even if Water Protectors have a strong basis to fight their cases in court, the looming threat of high penalties discourages people from going to trial. The federal cases have often resulted in non-cooperating pretrial resolution offers, which mitigate the risk of high penalties and save defendants from the cumbersome psychological and financial consequences of sitting through unpredictable trials.
According to WPLC, over 90 percent of state criminal cases in the United States are resolved without trial, either with a plea deal or a postponed dismissal agreement. “Therefore, we don’t see a full realization of people being able to have true justice within this context,” Carter said.
Although WPLC has significant grounds to fight these cases in court, the organization is dedicated to ensuring that Water Protectors with open cases are aware of and can choose from as many positive options as possible.
In April, WPLC announced its development of a new strategic plan. It hopes to gather input from Indigenous communities and allies about what future legal organizations serving movements to advance Indigenous sovereignty and rights should look like. In the meantime, WPLC is committed to fighting the 171 ongoing cases on behalf of Water Protectors.
Full updates are available at waterprotectorlegal.org
To support the Water Protectors who are incarcerated on federal charges, write to them at these addresses:
– Red Fawn Fallis, PO Box 2499, Bismarck, ND 58502
– Michael Giron (Little Feather), PO Box 2499, Bismarck, ND 58502
– Dion Ortiz, New Moon Lodge, PO Box 969, Ohkay Owingeh, NM 87566.