Being Numerous Page 7
Cloverdale had been the camp manager for the small Two Spirit Nation camp at Standing Rock, which brought together the intersection of the indigenous and LGBTQ struggle and many Two Spirit youth. “Before the occupation there were two teen suicides a month on this reservation” said Cloverdale. “During the occupation, there were none. There was promise and hope; young people believed in themselves.” Native teens and young adults are 1.5 times as likely to kill themselves as the average US resident. The Standing Rock movement’s guiding words, Mni wiconi (water is life), meant more than clean water advocacy. Water protectors and land defenders see themselves in a struggle to affirm and sustain life, which is as much spiritual as it is material and environmental.
Not all the lawyers and organizers were in North Dakota full-time, as Freeman was; some came for a few weeks at a time for hearings and meetings—a semi-rotating cast of legal activists who would join the close quarters of the Mandan office and apartments. Most nights they would cook and eat vegan food together, crammed into Freeman’s temporary living room on two sofas and the floor. Files and paperwork took up every table surface, with extension cords and wires from four or five laptops at a time snaking around the sparse furniture. Outside of their temporary lodgings, the Freshet and WPLC workers stood out in white Trump country; their ranks included Native Americans, gender nonconforming and queer individuals, trendy New Yorkers and what your grandparents might call hippies. “I was picking someone up from Bismarck airport,” Cloverdale told me, “and a group of white folks told me ‘you need to go home.’ They don’t like out-of-towners around here; they give dirty looks to out-of-state [license] plates.”
Freeman concurred. “I’ve never had to work as a defense attorney and endure this kind of hostile environment,” she said. A longtime activist lawyer, she noted that “unlike movements we’ve seen recently, there’s not a robust well of attorneys here. And the court system could have never anticipated this.”
The state Supreme Court deemed the situation an “emergency affecting the legal system of North Dakota.” Seventy defense lawyers from all over the state were appointed to cases; “typically they live and work about four hours away,” Freeman said. But only about ten local defense counsel were working directly with the WPLC. With only so many barred criminal defense attorneys in North Dakota, a number of whom expressed negative bias against water protectors, the state had to change its rules to let out-of-state lawyers practice in the Standing Rock cases in what’s known as a “pro hac vice” capacity. Pro hac vice lawyers must work with a barred North Dakota counsel; thus, the local lawyers working with the WPLC served as local counsel for around forty to forty-five out-of-state lawyers.
North Dakota as a whole has an entrenched conservative bent, with Republicans in firm control of the state House and executive. Local landowners and residents in the surrounding rural areas described the camps as a source of disruption, crime and vandalism.
“These were situations and circumstances we’d never seen before. It was emotionally, physically and economically taxing to the community,” said Julie Ellingson, the executive vice president of the North Dakota Stockmen’s Association, a trade organization that represents livestock producers. “This is a quiet, agricultural area; the largest cattle producing county in the state,” said Ellingson, who has lived in the area all her life. She told me that during the time of the camps, livestock producers couldn’t move their cattle from field to field, facing protest-related roadblocks and an alleged uptick in stolen, injured and killed animals.
On top of a uniquely brutal winter, these were unwelcome interruptions that provoked ire against protesters, but not the pipeline that drew them to North Dakota. Ellingson was one among a number of local residents who told me that they believed the pipeline construction abided by relevant laws, regulations and necessary agreements—a view challenged by the (equally local) Standing Rock Sioux and their federal court victory over the lack of adequate environmental studies and adherence to treaty protections. Ellingson said that locals felt like “collateral damage” in the Standing Rock standoff—an opinion echoed by Jerry Hintz, who along with his wife owns a popular local tea shop and café in Bismarck.
I met Hintz, a friendly, athletic forty-six-year-old with a shaved head and bright blue eyes, in his well-lit shop just a short walk from the federal court–cum–post office. The gray day poured in through the store’s glass front, deadening any touches of coziness in the strip mall space, which shares a bland Bismarck block with a Burger King. “Nobody in the media came to talk to the locals. They didn’t hear about how our businesses were affected, or about how police officers and their families were threatened,” said Hintz, who had joined hundreds of North Dakotans in a “Backing to Blue” rally last November; he told me of “fierce loyalty” in the area to law enforcement and the military, speaking of “agitators,” “trolls” and “criminals” from the camps; “We wanted to be left alone,” he said.
Local fear and antipathy was further stoked through the concerted efforts of law enforcement officers, county authorities and mercenary security contractors (hired by DAPL owner Energy Transfer Partners) who spent months painting the water protectors as criminals and security threats. The Intercept’s May 2017 leaks of documents from international security firm TigerSwan confirm that its contractors, working with law enforcement agencies, carried out explicit propaganda campaigns through local news and social media to demonize the protesters.
It worked. A survey conducted by consulting firm The National Jury Project in the relevant counties—Morton and Burleigh—found that 77 percent of the jury-eligible population in the former, which covers Mandan, and 85 percent in the latter, which covers Bismarck, had already decided the water protectors were guilty. “A substantial number of the surveyed population have connections to law enforcement, the oil industry, landowners and others who have been affected by the protests,” the survey results stated, noting, “Many respondents made statements indicating that they perceive protesters as a threat to community safety and described the water protectors as ‘eco terrorists,’ ‘criminals,’ and ‘idiots’ who ‘hopefully all freeze to death.’” One hundred percent of respondents admitted prior knowledge of the issues involved in the cases. Motions were filed by attorneys in both state and federal court for a change of venue, to move the cases out of rural areas directly affected by the camps; they were denied.
For Freeman, the jury survey was a reflection of the sort of hostility she and her clients and colleagues have felt in the area, and the urgency that they be permitted to leave. “It’s also why we are trying to have Rattler’s bail conditions relaxed as soon as possible,” she said. “This is a threatening environment.”
State prosecutor Ladd Erickson, known for theatrical language in court and chain smoking outside of it, told me, “The fatigue the whole area felt—it got raw.” A striking admission, from a prosecutor, about the risk of local bias. If the whole area was affected, I asked, how could impartial jurors be found for all these cases? “It’s challenging,” he admitted, before asserting swiftly that fair juries were nonetheless being found. He stressed that contrary to charges of racism in the area against Indians, his Native American friends (“my guys” as he called them) in the sheriff’s department were also burned out by the camps. The same state’s attorney filed motions in December 2017 to disallow defendants from mentioning the following in court: “historical treaties between the US Government and the Sioux Nation; tribal sovereignty; the merits and demerits of the Dakota Access Pipeline; climate change; sacred sites.” Erickson argued these issues had “no relevance” to the criminal cases at hand.
If an individual defendant did want to raise the fact that 99 percent of the arrests took place on land accorded to the Lakota Tribe in either the 1851 or 1858 Fort Laramie treaties, the point would have had little legal traction. But if these treaties—harsh compromises in and of themselves—were truly respected, none of these trials would be happening: state and federal powers
have no jurisdiction on treaty land. Indeed, if they had been historically honored, there would be no DAPL in the first place. The grim irony that many of the arrests led to trespass charges for natives on what should be their land is one that animates the history of this country.
The attorney noted that there is hardly anywhere to bring an argument from a sovereign nation’s claim; international courts are not going to weigh in on the Standing Rock criminal trials. But according to the lawyers I spoke to, including Bruce Ellison—a veteran attorney who represented AIM leaders after the 1973 standoff and continues to represent Leonard Peltier as well as a number of Standing Rock defendants—many of the cases are eminently defensible on points of law and proof, regardless of a treaty defense. The challenge is to defend that which they believe to be defensible in this tough rural context, where a small legal operation has had to handle hundreds of cases.
After a group dinner in her living room one night, Freeman and I sat in her equally jumbled adjoining bedroom. “In these cases we have both law and proof on our side. But really,” she said, with a quiver to her voice, “it’s the righteousness of it.”
In April 2018, WPLC published a tally of case statistics. Of the 831 arrests, 578 cases had concluded, with 337 won through dismissal or acquittal at trial; 226 water protectors have accepted some sort of pretrial agreement, but none that requires cooperation with the government in other defendants’ prosecutions. Over half of these agreements were “pretrial diversions”—delayed dismissals that do not entail an admission of guilt. One hundred and forty-four trials were still to begin.
Accounting for every arrestee and finding each defendant appropriate representation constituted a mammoth task in and of itself. In the meantime, Freshet and WPLC worked with the local lawyers to build collective defense strategies around major days of mass arrests—like October 27—from which scores of protesters faced similar charges, and for which allegations of infirm arrest and police brutality were numerous.
And for the prosecutors, mass arrest days, which involved law enforcement officers from around the country and state, have proven a challenge. “The prosecution is realizing that they can’t make out the elements of the charged offenses,” said Moira Meltzer-Cohen, a New York–based attorney who has traveled back and forth to North Dakota to represent nine defendants with cases in state court in Mandan. “Some of their cases have been dismissed by judges, and also because, having brought in law enforcement from all over the country, those extra-jurisdictional cops made arrests, failed to complete any meaningful paperwork, went home, and are not keen to return to testify about something that happened in a chaotic environment months ago,” she said, noting that without evidence showing individualized probable cause and without witnesses, the prosecution has dismissed some charges, which should never have been brought. Meltzer-Cohen, whom I’ve known for many years through her work on activist cases in New York, called the legal situation “a mess.”
Local paper, the Bismarck Tribune, which skewed dramatically against protesters and in favor of law enforcement in its editorial pages, took acquittals at trial as an occasion to opine that “the system works for everyone.” Meltzer-Cohen scoffed at the editorial. “They had to acquit,” she said. “There was absolutely no basis for the charges.”
The lawyer did not see the wave of dismissals as an outright victory, but evidence of vast police misconduct and original prosecutorial overreach. “The way the cops use arrest as a form of crowd control dovetails so neatly with the way prosecutors drain us, even without getting any results. It’s such a stupid war of attrition, with such Pyrrhic victories on both ends,” she said.
During the camp protests, the pipeline was dubbed “the black snake.” But for the Lakota, the black snake is not just one pipeline. It harkens back to a prophecy in which a great black snake would come to the Lakota lands and devastate the earth. According to the prophecy, it would be the youth who would rise up to slay the black snake—a detail not lost on the Standing Rock Sioux youth who were the first to set up camp against the pipeline in April 2016.
“The black snake is greed and violence and oppression; we have to come together to fight more than just one pipeline to defeat the black snake,” said Rattler as we sat in the warm, wood-accented living room. Depending on one’s spiritual orientation, there could be either irony or destiny in the fact of Rattler’s position as a high-profile defendant in the Standing Rock trials. He earned his name during his Marine Corps service in the early 1990s. One night, he was sleeping outside at boot camp in Pendleton, California—diamondback rattlesnake territory—when he felt a weight along the side of his body. He carefully felt along the mass. A six-foot-long poisonous diamondback had wedged itself, head down, along the side of his sleeping bag. In one move, Rattler grabbed his service knife, grabbed the snake, and cut off its head. His lieutenant, emerging from a tent, looked on. Rattler retells the story with gusto, a grin and dramatic hand gestures. “I was known for pissing off dangerous snakes,” he said. The name Rattler stuck, now an appropriate nom de guerre for a man who came to North Dakota to fight the black snake, and whose liberty has been threatened because of it.
Back in South Dakota, Rattler worked as a truck driver and a handyman, preferring to barter his trades and skills for items he needed to live, rather than money. Ceremony was already part of his life, as an entrusted Lakota pipe carrier—an honored role in ceremonial practice and tradition. He had first come to Standing Rock to deliver donated supplies from Pine Ridge in Betty Boop (his truck, for which he uses biofuel whenever possible). He made three return trips, until one event in September 2016 prompted him to stay for good.
In early September, protesters claimed that private DAPL security guards released attack dogs and sprayed mace on protesters. A spokesperson for Energy Transfer Partners told press at the time that protesters had “attacked” its workers first, but footage of clashes between law enforcement and water protectors catalyzed national attention. “After the dog attacks I knew I had to stay; it’s in my nature to want to protect people,” Rattler said. Freeman nodded as she listened to him, a hand on his shoulder. In that sense, they both had stayed in North Dakota for the very same reason—as protectors.
During his months stuck in Bismarck, the water protector waited and prayed. Most days, he stayed inside, reading, writing and sketching. Rattler reread letters of support and solidarity he received from supporters around the country while he was in jail. “I even got some postcards from a woman in France,” he said, leaping up to pull from a cabinet a pile of assorted, well-handled cards and papers. He has also been working on a children’s book, he told me—a story about a young indigenous boy and his adventures in precolonial times. He wants to give children “an image of what we looked like, before Hollywood made us look like savages.”
“I’m not smart about a lot of things. I’m more of an action guy. But I have 100 percent trust in them,” he said turning to Freeman and wrapping her in a vast hug. “My life is in their hands,” he said. When we returned to her apartment above the office that night, Freeman briefly burst into tears, wiped her eyes, and got back to work.
Addendum: As his trial neared in January 2018, Rattler made the difficult decision to take a non-cooperating plea agreement, rather than risk a minimum of fifteen years in prison were he to be found guilty at trial. In late September 2018, Rattler was sentenced to a 36-month federal prison sentence, which began in November. “I am praying that they have the strength to keep up the fight and to get more people out there,” said the water protector in a press release following his sentencing. “Standing Rock was a training ground. It was started by children, by the youth. Those are the generations that we’re thinking about. What are we going to leave them—birds, animals, rivers? What kind of legacy do you want to leave your children? For rich people, it’s a big bank account. For me it’s Mni Wiconi—water is life.”
6
Know Your Rights
When I wrote about the J20 arrests and c
harges for Esquire in April 2017, for a mainstream readership, I appealed to a specific type of logic—a juridical one. I stressed the infirmity of the mass arrest in the law’s own terms, noting that the police failed in their duty to establish individualized probable cause (as if I would have been satisfied with the DC cops had they only been more precise in their targeting of window breakers). To communicate the injustice of the thing, and the danger its precedent posed, I talked about rights.
The arrests, I pointed out, citing civil rights organizations and constitutional lawyers, deployed collective punishment and abrogated First Amendment protections. Strategically, an appeal to free speech and assembly rights is appropriate and necessary in these cases. But as reactionary anti-protest repression heightens across the country, we do well to understand the risks and limits of a response framed by this rights discourse, which would honor only the rights of individuals who assemble in a manner deemed “peaceful” by the state.
While in cases where First Amendment activity is threatened, we may want to seek a rights defense in court, but our defense of dissent outside the courts should not be limited by what the state deems defensible by the metrics of protected rights. A rights discourse, for example, would not defend the deliverer of that glorious punch to Richard Spencer—it would, in fact, defend Spencer.
An overreliance on the language of First Amendment rights treats the state—the Trumpian, corporate, white supremacist state—as an interlocutor, instead of as an enemy. When we call upon the government to recognize our right to peaceful assembly, we appeal to the democratic conscience of the state. “A conscience,” as British cultural critic John Berger noted in a 1968 essay in the journal International Socialism, “which is very unlikely to exist.”
Berger highlighted a conflict inherent to the sort of public demonstrations that First Amendment rights aim to defend: “If the State authority is open to democratic influence, the demonstration will hardly be necessary; if it is not, it is unlikely to be influenced by an empty show of force containing no real threat.” It’s safe to say we live in a moment when it is clear and correct to distrust the state’s openness to democratic influence.