The Legal Tent at Oceti Sakowin where Water Protector Legal Collective was born (Photo by Sarah Hogarth)
Mandan, North Dakota -': Nearly two and a half years after the first arrests at Standing Rock—Water Protector Legal Collective's mission to provide legal support for Water Protectors with criminal charges in North Dakota has been completed.
WPLC was born in a tent at Oceti Sakowin Camp. We came at the request of Standing Rock tribal leadership when arrests began in August 2016. As the last scheduled trial concludes today, we are still here.
Mass Arrests Required Mass Defense
The story of the Standing Rock NoDAPL resistance is, in part, a story of increasingly escalating police violence and state repression on behalf of a corporate behemoth engaged in environmental racism and destruction of the planet. It was also a watershed moment in the continuing epic of Native liberation in the Americas.
"The reunification of all seven nations of Dakota-, Nakota-, and Lakota-speaking peoples hadn't occurred in more than a hundred years, or at least seven generations," writes Nick Estes in his forthcoming book Our History is the Future: Standing Rock Versus the Dakota Access Pipeline, and the Long Tradition of Indigenous Resistance (Verso, 2019).
As an Indigenous-led and Indigenous-centered organization, WPLC is working to sustain this movement through our commitment to providing robust legal defense for those willing to risk arrest in defense of their lands, resources and sacred sites.
The oil company gravely miscalculated the acquiescence of the tribe, then led by David Archambault II, who along with other tribal members was arrested on August 12, 2016, and was named in a SLAPP suit meant to chill dissent. Archambault was acquitted at trial and WPLC board members successfully defended against the SLAPP suit in federal court.
WPLC was organized to provide on-the-ground legal defense to Water Protectors in the Standing Rock encampments. Though characterized by Morton County Sheriff Kyle Kirchmeier (under the tutelage of TigerSwan, a private security company hired by Energy Transfer Partners) as "outside agitators," in fact these Water Protectors had also been invited. They were repeatedly asked to come to Standing Rock to draw attention to the emergency created by ETP's construction of the pipeline without proper tribal consultation and lawful permitting. They stood in opposition to the threat to the tribe's water source, and ETP's bulldozing of known and significant burial sites, cairns, stone prayer rings and artifacts.
In December 2016, WPLC opened an office near the Morton County Courthouse where staff and volunteers worked to support the cases as they moved towards trial or other resolution. We successfully petitioned the North Dakota Supreme Court to create special procedures for attorneys from other states (pro hac vice) on NoDAPL cases, and then brought 31 experienced criminal defense movement lawyers to North Dakota – most of whom worked on multiple cases. Our volunteerlawyers counseled, advised and defended at trial Water Protectors who did not wish them to negotiate favorable non-cooperating pretrial resolutions.
WPLC cooperating attorney Bruce Nestor of Minneapolis posting $200 bond for 2-time arrestee Water Protector Karla Colon Aponte at the Bismarck Police Department on November 28, 2016. Aponte was one of dozens arrested at the Kirkwood Mall on November 25, 2016. First a volunteer, she is now a legal worker in the WPLC office.(Photo by Angela Jimenez for Minnesota Public Radio)
Our Final Tally is a Record of Astonishing Success
WPLC believes that everyone with criminal charges has an absolute right to fight them all the way through trial. We extended the broadest range of positive outcomes possible to support everyone through the full process, from arrest through motion practice and discovery and to trial. Here is a current snapshot of our state criminal case statistics out of a total of 836 cases:
Acquitted at trial: 42
Convicted at trial:26
Arrested on October 10 and 22, 2016 and again on January 16, 2017, Water Protector Olive Bias (front, left) stands singing in prayer on October 27, 2016, another day of mass arrests and brutality. (Photo by Rob Wilson Photography)
"Our state charges and inhumane jail conditions resulted from brutal arrests that occurred not because the state had legitimate legal arguments to press charges, but simply out of desperation to end our collective tactics that were the only option available to effectively hold the extractive industry accountable for their impunity: by nonviolently stopping construction ourselves," explained three-time Standing Rock arrestee, Water Protector Olive Bias. "WPLC attorneys and legal workers are protectors in their own right; they protect Water Protectors in colonial court systems and from political targeting."
In December 2018, we published our inaugural newsletter that features an article titled "Protecting the Protectors: If Our NoDAPL Court Stats Could Speak." Please read it on our website for a fuller understanding of the significance of these numbers.
During December 2018 and January 2019, prosecutors were ordered by the District Court to review 94 inactive NoDAPL warrant cases. The judge ordered: "If the State does not have a good faith belief that the underlying charges can be proven, the cases should be dismissed and the warrant withdrawn." By the end of January, 45 cases were dismissed and their warrants were withdrawn.
The WPLC warrant team has moved mountains to try and resolve them all, but there remain 45 inactive warrants. Though the licenses for our out of state volunteer attorneys to take new cases expired on January 31, 2019, we do encourage anyone wishing to resolve a warrant from a Standing Rock case to contact us and we will work with a local attorney to assist you.
The Future for Water Protector Legal Collective
While completing these cases in North Dakota we have been laying the groundwork for carrying this work to new locations beyond Standing Rock. We have been deepening relationships with other Indigenous communities and moving forward with a program of research, investigations and legal education. In the months and years ahead we will continue to leverage the information and experience we gained at Standing Rock to shine a light on how government and corporations are colluding to promote corporate profit and environmental destruction, and so that the Indigenous-led Water Protector movement can continue to hold them accountable.
We are also engaged with bringing attention to efforts in state legislatures to curtail dissent—the so-called infrastructure protection bills—and those like ND SB2209 that seek to impede the public's access to information by radically curtailing the Open Records laws for records from government, oil companies and their private security mercenaries in security matters related to critical infrastructure. This is a natural extension of our work to protect the protectors.
Eviction of Last Child Camp on February 1, 2017 (Photo by Ryan Vizzions–Standing Rock Rising)
While our criminal defense work is all but over in North Dakota, our legal offense work is still unfolding and growing.
Dundon v. Kirchmeier, our federal civil rights lawsuit seeking accountability for the police violence at Backwater Bridge on the night of November 20, 2016, is ongoing. The lawsuit is a class action on behalf of all of the hundreds who were injured that night. We are currently awaiting a ruling from U.S. Chief Judge Daniel Hovland that will allow the case to move into the discovery phase.
"We are determined to press on for justice, no matter how long it takes," said WPLC board member Rachel Lederman, who is lead counsel on the lawsuit.
The work of bringing these issues to international legal venues is also continuing, and in some respects, is gearing up. For example, as part of our partnership with the University of Arizona Rogers College of Law, we are petitioning the Inter-American Commission on Human Rights to conduct a hearing into the suppression of dissent in Indigenous communities fighting extractive industries.
In light of the evolution of our work, we have revised and expanded our vision and mission to articulate our aspirations and our framework for meeting the needs of present and future struggles:
We envision a world where Indigenous peoples are centered and guiding the world to protect the environment for all.
Water Protector Legal Collective provides legal support, advocacy, and knowledge sharing for Indigenous centered and guided environmental and climate justice movements.
The Indigenous people at Standing Rock stood up and tribal representatives from across the world showed up to stand with them. WPLC will always cary a deep sense of honor and gratitude for having been here to stand by their side.
WPLC Board President Daniel T'seleie locking down on an excavator in a "Sleeping Dragon" (handcuffs inside PVC pipe) to disrupt the construction of the Dakota Access Pipeline on September 14, 2016. (Screenshot from video by Kaden Jerry)
Completing our NoDAPL criminal defense of Water Protectors, professional journalists and U.S. veterans who came to Standing Rock in solidarity with the tribe, is an organizational milestone, both rewarding and humbling.
Rewarding because WPLC's pro hac vice program to bring criminal defense lawyers to North Dakota from other states gathered together some of the most experienced criminal defense movement lawyers, legal workers and volunteers in the country. We set a tone with the State's Attorney's Office that they were going to have a serious fight on their hands, and we have never let up that pressure.
Humbling because this was all in service to unarmed Water Protectors who had come to protect the sacred, who stood in prayer against a militarized police force being guided by merciless private mercenaries. They sacrificed more than should ever have been asked of them.
We did our best to reduce the legal harms for the Standing Rock Water Protectors in racist colonial courts: we commissioned a study that demonstrated the bias of the local jury pool that helped guide legal strategies for WPLC cooperating attorneys and local public defenders alike. Because of that data, many jury trials and much jail time was avoided. We also provided court support throughout these two and a half years. Staff was there for Katrina Silk and her legal team today, as they were for every other court appearance.
The mass arrests at Standing Rock may not have been the largest in the U.S. history of repression, but they are among the most significant, both in the lives of the individual Water Protectors like myself, but also for the future of Indigenous-centered environmental struggles. We now know how low the oil and gas industry will go to profit off of our mutual destruction; and we also know with a certainty, how disciplined and devoted Water Protectors are in nonviolent resistance, and how crucially important it is to provide them with necessary legal support.
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