Indigenous Peoples and Human Rights

December 1, 2017

Attorney Rachel Lederman -- New case to focus on mass arrest of Standing Rock Water Protectors

Militarized police at Standing Rock. Photo by Rob Wilson.

New case to focus on mass arrest of Standing Rock Water Protectors

Racism, disinformation and bias in North Dakota courts, attorneys fight for water protectors -- Attorney Rachel Lederman, Water Protector Legal Collective, speaking at AIM West Conference

Article by Brenda Norrell
Audio by Govinda Dalton
Spirit Resistance Radio
Censored News

Attorney Rachel Lederman
Photo by Karen Wright

SAN FRANCISCO -- In the State of North Dakota -- where prosecutors and the media work for the oil industry -- attorneys for Standing Rock water protectors are filing new charges following the mass arrest of 125 water protectors in prayer.
Speaking at the AIM West Conference here, Attorney Rachel Lederman, board member of the Water Protector Legal Collective, said a new lawsuit is being filed challenging the mass arrest of water protectors on Oct. 22, 2016.
“We are going to challenge this mass arrest in civil court,” Lederman said.
“They can’t surround 125 people on a prayer march -- surround them, and tell them to get on their knees -- arrest them, put them in dog kennel-like enclosures, tell them to strip search, do strip searches of elders, and hold them in jail for days without allowing them to be bailed out," Lederman said.
"We can't let this kind of thing go on."
Describing the uphill battle of fighting for justice in a racist and biased legal system in North Dakota, Lederman pointed out there has been a lot of pressure to prosecute water protectors in North Dakota.
"The oil industry rules."
Lederman also pointed out that the land where the resistance took place is protected by Treaty. The Treaty for this unceded land of the Dakota and Lakota is a legally binding agreement, she said.
Efforts are underway internationally to uphold this.
The judicial system in North Dakota has been racist and biased following the disinformation campaign of TigerSwan, she said.
Currently, two water protectors remain in jail on baseless charges, and seven people face federal charges.
"There is an enormous amount of bias and racism against the Indigenous defendants and allies resisting DAPL," she said of the resistance to Dakota Access Pipeline.
Most people in the northern part of the state are in favor of the oil industry, she said.
Lederman said there were 800 water protectors charged, and some are still being recharged.
--The Creation of Water Protector Legal Collective
Lederman, who also does work with the National Lawyer's Guild in San Francisco, said last September she answered a call to go out to the resistance to the Dakota Access Pipeline.
She helped form a new legal group to defend and advocate on behalf of that movement, Water Protector Legal Collective. WPLC has become an Indigenous led, independent non-profit, based in North Dakota.
The WPLC attorneys have been providing criminal defense for almost 800 arrested and charged criminally in North Dakota.
They are also coordinating federal offenses for seven people charged for serious federal charges.
Meanwhile, the attorneys have filed a civil lawsuit over the horrific police violence at Backwater Bridge on Nov. 20, 2016.
The attorneys are now preparing to file additional civil litigation, and involved in international efforts.
Between August of 2016 and February of 2017, about 800 people were arrested while protesting and in prayer ceremonies, resisting the Dakota Access pipeline.
“All of these people were charged  criminally, most in state court,” she said.
Justice in the cases was hindered by the lack of local attorneys in the public defender's office there.
"Almost all the 800 cases were without any legal basis,” she said.
"We had a challenging and interesting situation."
It was difficult for out-of-state attorneys to become licensed in North Dakota. It required extensive documents and was a long process that could take about one year.
So, WPLC petitioned the North Dakota Court to allow out-of-state attorneys to work in conjunction with local attorneys.
Now, out-of-state attorneys are representing hundreds of water protectors for free.
"There is an enormous amount of bias and racism against the Indigenous defendants and allies resisting DAPL.”
She said people in the northern part of the state are in favor of the oil industry.
Still, 300 cases have been dismissed, and almost 400 cases remain open.
"The court system became completely overwhelmed."
Instead of dumping the cases, which would have happened in San Francisco, the cases continue.
There are not the same speedy trial rights in North Dakota. Now, trials are scheduled through the spring of 2018.
-- Water Protectors Charged with Federal Crimes
Six water protectors continue to face charges in federal court: Red Fawn Fallis, Little Feather, Michael Marcus ‘Rattler,’ James White ‘Angry Bird,’ Brennon Nastacio, and Dion Ortiz.
Dion Ortiz and Littlefeather are still in jail.
“Those arrestees need more support," she said.
Red Fawn was recently released to a halfway house and awaits trial.
--Water Protector Attorneys do not support plea agreement or diversion
Recently judges tried to close down the program where out-of-state attorneys represent water protectors.
But that effort was defeated.
"It is beyond the ability of the local attorneys to deal with."
There are large numbers of cases which have no basis for arrest, no witnesses.
Prosecutors are putting pressure on water protectors to enter into plea agreements. However, WPLC does not support this.
For water protectors, the charges have been an economic burden, because they must return to North Dakota for trial.
Meanwhile, local attorneys were overwhelmed with the amount of discovery in the cases.
She said none of the water protectors represented by Water Protector Legal Collective have taken plea agreements or diversion offers.
However, some of those charged did accept these. They were represented by local lawyers, not WPLC.
Still, the prosecutors continue to file new charges with new penalties. This can result in new warrants, even though there is no factual or legal basis for the charges.
Regardless of the baseless charges, Lederman said, “We are starting to get large numbers of cases dismissed.”
-- Police Violence at Backwater Bridge
Water Protector Legal Collective attorneys filed a federal lawsuit over the Nov. 20, 2016, police violence at Backwater Bridge.

Sheriff and local police fired water cannons, explosive grenades and so-called less-lethal weapons at water protectors, she said.
"Many were engaged in prayer and singing on the bridge throughout the night."
As a result of the police violence, hundreds of water protectors suffered injuries and hypothermia. Dozens were taken to the hospital, she said.
One woman lost part of her arm due to an explosive grenade.
Another woman suffered a detached retina and lost partial vision, as a result of a chemical weapon canister.
Water protectors suffered broken bones and horrible injuries.
A lawsuit was filed immediately.
Water protectors’ attorneys asked the judge for an injunction to restrict the use of dangerous munitions, in order to halt police shooting these into crowds in the dark in the future.
It is an uphill battle, she said. Even though it is federal court, it is still federal court in North Dakota.
A local judge has been very influenced by local media, and the disinformation campaign of TigerSwan. Water protectors were portrayed as a terrorist group by TigerSwan, she said.
This case was taken up by the Eighth Circuit Court of Appeals in St. Paul, Minn.
The Court of Appeals confirmed the lower court’s decision, and denied these restrictions, which would have halted the use of those weapons.
The Eight Circuit is the most conservative circuit, she said.
"We are still fighting."
None of the legal or factual issues have been resolved in this case.
A class action lawsuit continues for compensation for those injured on the night of Nov. 20 at Backwater Bridge. This case continues in Bismarck, North Dakota.
-- New lawsuit over police mass arrest on Oct. 22
Now, another lawsuit will be filed as a result of the mass arrest on October 22, when 125 water protectors were arrested on their Prayer March.

They were diverted by police into an empty field, and surrounded by ATV buggies. At gunpoint, police told water protectors, “Get on your knees, you are under arrest.”
There was no dispersal order, no opportunity to leave. There are no witnesses on behalf of state.
Still, three people were found guilty in state criminal court. As a result of these random sentences, two water protectors were sentenced to jail. One for eight days and another for 18 days.
The court’s action was random, since 125 people were charged and most of the charges were dismissed.
“We are going to challenge this mass arrest in civil court.”
“They can’t surround 125 people on a prayer march, surround them, and tell them to get on their knees, arrest them, put them in dog kennel like enclosures, tell them to strip search, do strip searches of elders, and hold them in jail for days without allowing them to be bailed out.”
"We can't let this kind of thing go on."
--Surviving the pressure to prosecute, protecting the water
During questions following her talk, Lederman was asked if there is more pressure to prosecute with Donald Trump in office.
Lederman said pressure to prosecute hasn't increased. There was already a lot of pressure to prosecute.
"The oil industry rules."
Prosecutors are working for the oil industry, she said.
She also pointed out that the Dakota Access Pipeline was originally to be in the Bismarck area, but was redirected to the Standing Rock area to poison their water.
Now, there is a spill of Keystone pipeline in South Dakota not far away from Standing Rock.
Lederman said she hopes to see more protests, more resistance.

The model of Standing Rock camps’ Water Protector Legal Collective, which created legal support in a rural area, can be replicated, she said.
Meanwhile, the legal battle over the DAPL pipeline continues. Recently, the speeded-up permit was ruled illegal in federal court in Washington, D.C. However, the federal court has not stopped operation of the Dakota Access Pipeline.
The Treaty is a legally binding document. This is unceded land of the Dakota Lakota Nations, she said.

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