Being Numerous Page 6
The support group does not offer legal advice, but it commented on perhaps the most salient information to come from the plea. “After the plea deal was accepted, the prosecutor is required to say what the government ‘would have been able to prove,’” the collective noted. According to the group, the government was able to show only the following: that the defendant joined a black bloc with 200 other people; marched with the black bloc for thirty minutes; had multiple opportunities to leave and did not; wore black clothes and goggles; and in the words of the prosecutor, “knew or reasonably should have known that the black bloc was causing destruction” and that “the actions of the black bloc caused and constituted a riot.”
This, the statement noted, was “literally all they had on him.” As the cases against more and more defendants came to rest on the same scant evidence, it didn’t take a defender of black bloc tactics to see a dangerous legal precedent quietly crystallizing; ten years in prison would be an extreme punishment for breaking windows. However, the J20 cases were not an occasion to debate the moral (or tactical) merits and flaws of political property damage. How could they have been? Most J20 defendants broke nothing at all.
Of the dozens of New York activists I know who traveled to DC to join the J20 protests and the vast but placid Women’s March the following day, three were arrested in the kettle. In the week that followed the J20 arrests, the names and personal information—including some addresses of arrestees—were made public by far-right site GotNews, and the New Yorkers I spoke to claimed to have received numerous online threats.
One twenty-nine-year-old Brooklyn-based protester told me that this sort of harassment highlights one impetus for deploying black bloc tactics in the first place—tactics that have grave implications for less seasoned dissenters. “Clearly, it was in the best interest of everyone present for the anti-fascist march on the day of my arrest to conceal their identities,” he said, “because in the current climate in which we exist, the danger is very real.”
But, in a moment when the shock of felony charges and the arduousness of a lengthy legal process still weighed on the defendant, he also told me he was surprised and heartened by the supportive attitude toward the black bloc of some more mainstream anti-Trump protesters. He said that following his release from jail on January 21, he went with some friends to DC institution Ben’s Chili Bowl. “We found quite a few pink pussy hat–wearing Women’s March attendees inside,” he said. He asked the women what they felt about the Richard Spencer punch and the J20 protests, expecting that they might repeat historical denunciations of “bad protesters.” “To my surprise,” he told me, the women said that they wished they could have punched Spencer themselves. “The women thanked me for being in DC that weekend and for everything that took place on the twentieth.”
Government actions like the J20 mass arrest could make the tired “good protester / bad protester” narrative obsolete—if presence, proximity and chanting are sufficient to constitute a “bad protester.” And while radical leftists would collapse this dichotomy by banishing the “bad protester” label, the state seems keen to erase the concept of “good” protest. During the J20 defendants’ preliminary hearings in February 2017, Republican lawmakers in at least eighteen states introduced legislation to increase the severity of charges for traditionally nonviolent protest tactics, such as blocking highways.
Trump’s government has proven its willingness to set what Goldstone called “a monstrous trap” for protesters, by leveraging high risk trials against paper-thin cases.
“It definitely hits in waves,” Alsip told me. “I’m nervous. I try to think that even if I do go to prison, I would remain committed, and politically active. But,” she paused, “I just can’t believe that my thoughts have to go there. And that we’re all facing this.” Another pause. “A few broken windows.”
Addendum: In the months that followed this essay’s original publication in spring 2017, the infirmity of the government’s case was borne out. The first group of defendants to go to trial were acquitted by a jury in December 2017. Soon after, the government dismissed charges against 129 more defendants, claiming that it wished to focus the prosecution on the perpetrators of the most serious vandalism. The following May, a DC Superior Court judge sanctioned prosecutors for failing to disclose potentially exculpatory evidence to the defense before trial. The government was also found to have submitted to evidence videos edited to exclude evidence favorable to the defense; the videos were made by right-wing provocateurs Project Veritas. The second trial ended with one defendant acquitted and a deadlocked jury (and so a mistrial) for three other defendants. The prosecutors dismissed charges against the remaining thirty-nine defendants in July 2018. A number of defendants plan to file complaints against the prosecutors for their misconduct; the ACLU has filed suit against the Metropolitan Police Department for its behavior during the protest.
5
Still Fighting at Standing Rock
Rattler sat on the sofa scrolling through his phone. It was a drizzling, cold spring day in Bismarck, North Dakota, but he wasn’t going outside much anyway. A great mountain of a man with thick black hair to his waist and a disarming gentleness, Rattler made the objects around him look small. The sofa on which he sat, the phone he held, the homey living room where we met—the whole city of Bismarck seemed too small for Rattler. But his bail conditions and an ankle monitor confined him to the area for over half a year as he awaited trial.
He put the phone down. “I was looking for a quote,” he said, “about how the people have the right to overthrow the government if it abuses its power. Who said that?”
Sandra Freeman, Rattler’s attorney, sat with him on the sofa. She ventured that the line he was seeking might be from the Declaration of Independence. Rattler didn’t return to his phone to check. If he had, he may have noticed that Jefferson’s founding document—that vaunted proclamation of America and its values—described the land’s native peoples, his ancestors, as “merciless Indian savages.”
Rattler, forty-five, legal name Michael Markus, is one of six native activists who faced near-unprecedented federal charges related to the Standing Rock protest camps against the Dakota Access Pipeline (DAPL). The federal cases sat alongside hundreds and hundreds brought by state prosecutors, stemming from vast numbers of arrests made over the six months that the camps stood. At its height, the protest drew as many as 15,000 participants from around the world and, for a short time, the dilettantish gaze of the mainstream media. The authorities razed the last major holdouts of the camps on February 23, 2017, by which point numbers had dwindled as blizzard conditions pummeled the prairie lands. The camera crews packed up, and most of the country went back to focusing on Trump.
But for Rattler, his federal codefendants, the many hundreds of arrestees facing state charges, and their lawyers, the fight on the ground in North Dakota was far from over. They faced a terrain as brutal and unforgiving as any winter on the Standing Rock Reservation: a small-town court system in conservative rural counties that had no experience of anything nearing this scale or political valence.
The fate of the DAPL standoff resided not only in judicial decisions about the flow of oil. Those who stood on the front lines for clean water, for indigenous struggle, for their ancestors and for our future, were brought to alleged justice in an area with doubtful prospects for anything resembling an impartial jury. North Dakota prosecutor Ladd Erickson told me over the phone that prior to the Standing Rock cases, the only mass arrest incidents that these local counties had dealt with involved breaking up graduation parties of drunk high schoolers. And while thousands flocked to the protest camps, only a few dozen lawyers and supporters remained and returned to continue the arduous and overwhelming task of defending these cases, in an area where towns consist of interconnected parking lots, strip mall restaurants and boxy houses, surrounded by unending sightlines of rolling grassland. When I went to North Dakota in April 2017, 140 defendants still didn’t even have legal re
presentation.
“The reality is that the frontlines are in the courthouse now,” said Freeman, a former public defender who moved from Colorado to live in North Dakota full time to fight the DAPL arrest cases. She is one among a small cadre of lawyers and legal support workers who put their normal lives on hold in order to seek justice for water protectors facing trial in the conservative, rural Midwest. “The celebration and camaraderie of the camp—that’s gone,” she said, “but we’re left to stand with people going into the gauntlet, facing incarceration for being who they are.”
The Dakota Access Pipeline has since been fully built, following President Donald Trump’s January 2017 order to expedite its completion, reversing President Obama’s block on the project. In June, crude oil began pumping from North Dakota’s Bakken Formation to Illinois, under the Mississippi river and through sacred Lakota land and burial sites. In November 2017, the pipeline spilled over 210,000 gallons over South Dakota farmland. A major spill risks contaminating the main water source of the Standing Rock Sioux and 17 million people who live downstream. The summer prior to the spill, a federal judge ruled that the Army Corps of Engineers, responsible for approving the pipeline’s route and completion, had not adequately considered the impacts of a spill into the Missouri River. The decision was a partial victory for the Standing Rock Sioux Tribe, but it was still too little, too late, and oil continues to flow through the DAPL. From February 2017, anti-pipeline activists began to take their fight from North Dakota to new camps across the United States, opposing pipeline construction and fracking operations from Nebraska and Iowa, to Texas, Louisiana and Florida, to Pennsylvania, New Jersey, and Massachusetts.
On the first night I spoke to Sandra Freeman in the dingy apartment rented by her legal collective in Mandan—the small town in which most of the hundreds of state cases were tried—she pulled out a dog-eared map of the area. On it were the lines of the Fort Laramie treaties, which drew up the Great Sioux Reservation in 1851 and 1868. And next to it, Freeman roughly sketched how the land today—the site of the pipeline standoff—is broken up into federal, private and reservation property. “The history of exploitation and extraction cannot be disconnected from what’s happening here,” she said.
The unbroken American history of native oppression is not lost on Rattler, a marine veteran, truck driver and card-carrying Oglala Lakota Sioux Indian who lives on the Pine Ridge Reservation, South Dakota—designated one of the poorest areas in America. His great-great-great-great-grandfather was Chief Red Cloud, the storied Oglala Lakota leader who oversaw successful campaigns against the US Army in 1866 and signed the 1868 Treaty of Fort Laramie, delineating the Indian Country through which DAPL now runs. Red Cloud died at Pine Ridge in 1909. The same Pine Ridge where over 250 Lakota were massacred and buried in a mass grave in 1890 at Wounded Knee; the same Wounded Knee where, in 1973, American Indian Movement (AIM) activists and supporters from every Indian nation occupied the town. Unlike the Standing Rock standoff, the Wounded Knee occupation was armed. But like the water protectors four decades later, the AIM resistance at Wounded Knee faced militarized, multi-agency law enforcement repression, followed by protracted court battles aimed at defanging and punishing the movement.
And it is with this historic struggle in mind that Freeman chose to join the camp, originally “supporting the DAPL resistance not in [her] capacity as an attorney.” She told me that after seeing water protectors “brutalized by police,” and recognizing the expansive need for legal support, she applied in November to work as the criminal case coordinator for the Water Protector Legal Collective (WPLC)—a group that originated in the camp to provide on-the-ground jail and legal support for arrestees and one of two interconnected, donation-funded groups that would oversee the daunting task of coordinating defense and logistics for hundreds of disparate defendants. The other, the Freshet Collective, would work largely on arrestee support, including paying nearly half a million dollars in cash bail, coordinating criminal defense, travel, accommodation, and logistics for the out-of-state lawyers and hundreds of defendants who live nowhere near the site of their court dates. Freeman moved to North Dakota for months at a time, leaving behind her family and her regular legal practice in Denver.
“For a lot of the lawyers and the defendants here, there’s a spirituality and a politics involved in this fight that can’t be untangled, and it would be hard to keep working without it. So much out here is hard,” Freeman said. “The attorneys and legal workers who come here, we wake up every morning and put our bodies and spirits upon the gears, upon the wheels, upon the levers, upon all the apparatus of this colonial behemoth—the state violence and repression that is occurring yet again in order to deny indigenous people sovereignty over their own lands in the name of resource extraction.”
The six federal defendants were charged with use of fire to commit an offense and civil disorder, stemming from events on October 27, 2017—a major date in the pipeline standoff on which 141 people were arrested. On that day, police deployed armored vehicles, lashes of pepper spray, and LRAD sound cannons to clear water protectors from one of the campsites, while barricades were set alight and DAPL equipment was damaged. The civil disorder charge is a rarely used federal statute with a fiercely political history: it was passed in the late 1960s at the height of the Black Liberation and anti-war movements; AIM members from the Wounded Knee occupation faced the very same charge.
It was not until January 23, three days after Trump’s inauguration, that the Justice Department moved to file federal charges. This, Freeman said, was “no accident.” Each defendant faced up to fifteen years in prison if convicted.
Meanwhile the state cases were already trickling through Morton County, with hundreds still unresolved. “The size and scope of the thing, it’s overwhelming,” said Freeman.
It’s hard to imagine a starker optic disconnect than that between the dramatic spectacle of the protest camps, on the one hand, and the boxy, small-town blocks and parking lot grids that make up the nearby cities, on the other. The pipeline fight provided a visual language of indigenous resistance and frontline militarized battle: the bright flags of every tribal nation flying, the temporary tent and tipi towns, hundreds of bold banners, water protectors in traditional dress mounted on horses, law enforcement officers and National Guardsmen in riot gear. Tear gas. Water cannons. Fire.
Just over 70,000 people live in Bismarck, where the federal court is small enough to share a building with the post office—the granite stone entrance of which became a regular backdrop for protests. In bars decked in mock saloon style and American flags, “Backing the Blue: Friends of Law Enforcement” signs are posted in the windows. Neighboring Mandan has a mere 21,769 residents—slightly greater than the population of the protest camps at their largest. Mandan, named after the indigenous tribe that historically lived on that land, has a 90 percent white population and boasts the slogan “Where the West Begins.” If you squint, it would almost appear quaint; a late nineteenth-century railroad town with morning-trimmed storefronts and saloons. But to look at it clearly is to see cheap, beige concrete facades and dilapidated motels, sports bars and chain restaurants. It was here that the lawyers and legal support workers would live and work out of a hotel turned flophouse, with a makeshift office on the ground floor. Inside the main building entrance sits an old-timey buggy car—no doubt once an ornament from the hotel days. A Christmas wreath still hung on the wall in mid spring.
The curtains were drawn over the office windows and there were no signs on the door. The legal team worked in one large room with mismatched felt sofas and plastic chairs, a shit-brown carpet, a defunct popcorn machine, and a poster of AIM activist and political prisoner Leonard Peltier pinned to the wall. According to Freeman and her colleagues, the first two buildings in which they tried to rent turned them down after hearing that they were in town to defend water protectors. “It’s hostile environment here, for sure,” Freeman said.
Rattler, speaking to me in April
2017, told me that in the previous weeks, on two occasions, two different unmarked cars had pulled up beside him on the street; a passenger had brandished a Glock pistol before the vehicles sped away. He said that numerous local residents had driven by and yelled, “Go home!” while he smoked on the porch. “It’s funny, because I want to get out of here, too,” he said. “But part of me wants to yell back, ‘Go home? We were here first!’” He was staying at the home of a member of the local Unitarian Church—a small detached house near the center of Bismarck in a row of small detached houses, built in organized, anonymous, suburban-looking blocks.
I came to North Dakota three months after the February 2017 eviction. Signs had all but disappeared of the once-sprawling camps that had stood forty miles south of Bismarck. You had to look hard to find relics left on the wind-beaten, sand-brown grass—a lone cinder block bearing “#NoDAPL” in black spray paint, or razor wire piled up in a mound by the 1806 Highway, gleaming in the sun. Riot police had used the wire to surround and block off a sacred burial site named Turtle Island after water protectors crossed near-freezing water to pray there in November 2016.
I had traveled to the site with Freeman and some of her coworkers. An ebullient paralegal named Jess, wearing gold eye shadow and a floral skirt, pointed out where each of the various camp areas had stood. She hadn’t returned to the site since the February eviction. Nor had Dandelion Cloverdale, a sex worker and educator from Montana who was working for the Freshet Collective to coordinate travel and lodging for defendants. Cloverdale walked around solemnly, eyes streaming from the winds blowing sideways on the plains. “It’s sad coming back here, it looks so different,” they said, adding, “It’s hard”—a phrase I heard like a refrain during that trip.