The Standing Rock protests may well signal a new paradigm for civil disobedience in the modern corporate age. At the very least, the months-long resistance raises challenging and novel legal issues. First, many who were arrested at Standing Rock did not consider their actions to be illegal because they believe that the land upon which the pipeline was built actually belongs to the Lakota people. Second, the response to the protests appears to have been formulated and implemented by a private security force using tactics developed in the Middle East to fight terrorists but used here in the United States against a largely peaceful resistance movement.
In 2016 a group of young Native Americans from the Standing Rock Sioux Reservation started a movement that would galvanize world attention and bring together the largest meeting of Native Americans since the treaty councils of the 19th century (tinyurl.com/y7ydt68n). The group was leading the reservation’s resistance to construction of the Dakota Access Pipeline (DAPL), a 1,200-mile-long pipeline transporting oil from the Bakken Shale oilfields in North Dakota to Illinois. The focal point of the opposition was the proximity of the pipeline to the reservation and Lake Oahe. DAPL runs within 1,500 feet of the reservation, through land containing sacred and historical Lakota sites, and crosses under nearby Lake Oahe. Not only would construction of DAPL disturb and desecrate these sites, but a potential oil spill would contaminate water that supplied dozens of Lakota tribes in the area.
(The origin of the word “Sioux,” the name the U.S. government uses for the related tribes that live on Standing Rock and throughout the Plains, is debated, but appears to have come from a French bastardization of a native saying. The people of Standing Rock hail from seven different bands collectively referred to as “Oceti Sakowin,” the People of the Seven Council Fires. Lakota is one of three native languages spoken by this nation, the other two being Dakota and Nakota. For the purposes of this article, I refer to the people of the Oceti Sakowin as the Lakota.)
Thousands of activists came from across the United States and around the world to the protest camps, including members of hundreds of native tribes from across the country. They were, in turn, confronted by a small army of both public and private security forces, who utilized tactics against the demonstrators, such as attack dogs and water cannons, that harkened back to the most violent confrontations of the Civil Rights era (tinyurl.com/yaacjwme). Several hundred were arrested and injured in multiple clashes between the two sides. More than a year after the last camp was disbanded, the legacy of Standing Rock is still being written, and the fate of dozens of activists still hangs in the balance as their cases work their way through the North Dakota courts.
Geography and History
One cannot grasp the complexity of the issues without an understanding of the geography involved. In the 1800s the Lakota were spread out across a vast area stretching from modern-day Montana down to Nebraska and west into Wyoming. Western expansionism and the prospect of gold in California sent waves of settlers in wagon trains and prospectors across the Lakota hunting grounds, not only disturbing the prey but despoiling their hunting grounds. The Lakota and other Plains tribes tried repeatedly to get the U.S. government to intervene. In 1851 a treaty council was held at Fort Laramie in present-day Wyoming between chiefs of all the Plains tribes and negotiators for the U.S. government. The result was the Fort Laramie Treaty of 1851, which designated areas throughout the Plains as hunting grounds and reserved certain areas as each tribe’s exclusive territory. In exchange for being allowed to build roads, posts, and forts within the territories, the U.S. government promised to regulate the settlers crossing through the hunting grounds and make restitution for wrongs committed by them. The United States failed to keep up its end of the bargain, and confrontations escalated.
In 1868 the United States called another treaty council at Fort Laramie. The resulting treaty was intended to isolate the Lakota tribes on a vast reservation by giving them exclusive rights to the reserved land but removing rights that had been granted under the 1851 Treaty to land outside the reservations. In return, the government promised to provide the tribes with the means to become self-sufficient. The Fort Laramie Treaty of 1868, by its terms, required that three-quarters of all male members of the named tribes assent to the treaty in order for any cession of land to be valid. The Great Sioux reservation established by the 1868 Treaty was broken up by the Dawes Act of 1889 (25 Stat. 888 (1889)) and greatly reduced in size, thereby establishing the present-day boundaries of the Standing Rock Reservation.
With this history in mind, the significance of DAPL’s location comes into focus. The Standing Rock Reservation straddles the border between South and North Dakota, with most of the reservation in South Dakota. The reservation is bordered on the north by the Cannonball River, which flows east into Lake Oahe, and on the east by the lake. Stretching north from the Cannonball River is a vast area of land that originally was given to the Lakota under the 1851 Treaty, most of which is now in private hands. Directly north of the Cannonball is Backwater Creek. In the 1950s and 1960s, the U.S. Army Corps of Engineers (ACE) asserted eminent domain over land on both sides of the Missouri River prior to building the dam that created Lake Oahe. The land just north of the reservation between the Cannonball River and Backwater Creek is part of the eminent domain area, falling under ACE jurisdiction, as well as some of the land immediately north of Backwater Creek and all of Lake Oahe.
The Protests at Standing Rock
In March 2016, DAPL’s owners, Energy Transfer Partners (ETP), announced a change to the pipeline’s proposed route that brought DAPL on an east-by-southeasterly route to a point about 1,500 feet north of the Standing Rock border at the edge of Lake Oahe. The route crosses a north-south state highway (Highway 1806) that runs along the western shore of Lake Oahe from Bismarck through Standing Rock and into South Dakota. Highway 1806 is the only northern access route for the reservation.
In April 2016, in response to DAPL’s new route, a group of Lakota youth from Standing Rock established a camp called “Oceti Sakowin” on the eminent domain land on the east side of Highway 1806 and between the Cannonball River and Backwater Creek. From April 2016 through February 2017, Oceti Sakowin would remain the main staging area for continuous and mostly peaceful demonstrations, many composed of praying and religious ceremonies. It would become the temporary home to representatives from 280 different tribes and thousands of participants from around the world, including environmentalists, veterans, and ordinary citizens.
Construction proceeded from the Bakken shale fields down into the 1851 Treaty land area throughout the spring and summer. In August 2016, the Standing Rock tribe sued in federal court to have construction halted, and ETP countersued to enjoin the tribe from blocking construction.
In September 2016, things turned ugly. On September 3, construction crews began bulldozing ground in the unceded Treaty zone that the Lakota had identified as sacred ground in court filings in federal court. In response, hundreds of demonstrators marched to the site to confront the workers. They were met by attack dogs whose handlers were hired by ETP’s security company (tinyurl.com/yabxm4hn) but who were not properly licensed (tinyurl.com/y87smucc). Shortly afterward, the federal court denied most of the tribe’s requested injunctive relief, allowing construction up to Lake Oahe, and the denial was upheld on appeal in early October.
October 22 marked the first mass arrest after hundreds of demonstrators marched to the construction site to support those who had locked themselves to the construction equipment to prevent bulldozing of burial sites. On October 27, police and private security moved in to clear a camp that protesters had set up near the construction site, using pepper spray, batons, and concussive devices. Another 141 protesters were arrested, but this time many were charged with felony offenses associated with several fires that had been set by the protesters to construction equipment and vehicles, though the felony charges were later thrown out by the judge hearing the cases.
Several chain-link enclosures were set up in the garage of the Morton County Detention Center as holding cells for the arrestees from the mass arrests, where they were held in 40-degree temperatures, sitting on cold concrete floors with identification numbers written on their forearms (tinyurl.com/nusmy6d). The allegations of inhumane treatment sparked a review by the United Nations Permanent Forum on Indigenous Issues (tinyurl.com/jz4wsz4).
By November 8, 2016, construction on DAPL had been completed up to Lake Oahe. Demonstrations continued back in the eminent domain area while participants awaited word on the final permit. On November 20, another violent confrontation occurred when police and security forces used water cannons, tear gas, and rubber bullets in below-freezing temperatures against demonstrators. Standing Rock medics reported more than 300 injuries and 26 people who had to be hospitalized as a result of injuries sustained during the confrontation.
In December 2016 came a fleeting victory: ACE announced that it would not issue the permit to drill under Lake Oahe until a full environmental assessment was completed. However, shortly after his inauguration, President Donald Trump issued an executive order requiring ACE to review and approve DAPL in an expedited manner. In response, a group of demonstrators set up an encampment atop a hill in unceded Treaty land to the west of Highway 1806 and outside the eminent domain area (tinyurl.com/gufraxl). Seventy-six participants were arrested and forcefully removed from the hilltop, including Lakota leaders Chase Iron Eyes and HolyElk Lafferty.
On February 8, 2017, ACE reversed its position on the need for a full environmental assessment and granted the final permit needed to drill under Lake Oahe. The pipeline went into operation in June 2017.
An Interview with Daniel Sheehan
To better understand the historic nature of the Standing Rock protest and the complex legal issues it raised, I interviewed Daniel Sheehan of Lakota People’s Law Project. A Harvard-trained attorney, Daniel Sheehan has led or participated in some of the most important public interest cases of the last 40 years, including the occupation of Wounded Knee by members of the American Indian Movement. In 1980 he co-founded the Christic Institute, a nonprofit public interest law center that—among many other cases—prosecuted members of the Ku Klux Klan in Greensboro, North Carolina, and represented victims of the Three Mile Island disaster in Pennsylvania. Sheehan previously worked with Lakota People’s Law Project in suing the State of South Dakota for its violations of the Indian Child Welfare Act. Sheehan was also present during the Standing Rock protests and is currently defending Chase Iron Eyes and HolyElk Lafferty in their criminal cases.
(This interview has been edited and annotated by the author.)
AM: Could you give me an overview of how the protest came about?
DS: When the Keystone XL pipeline was going to be built adjacent to the Standing Rock reservation, the Standing Rock Sioux tribe appointed Phyllis Young—a longtime member of the tribal council and a former member of the American Indian Movement (AIM)—to lead the tribe’s opposition to the XL pipeline. Almost immediately after Keystone was defeated, ETP announced that it had changed the route of DAPL. In April 2016, youth from Standing Rock, Cheyenne River, and Pine Ridge, 18- to 23-year-olds, mobilized and set up the Oceti Sakowin camp, named for the People of the Seven Council Fires.
AM: I remember there was an issue raised by ETP, which claimed it had reached out to the Standing Rock tribal council regarding the pipeline permit and they hadn’t gotten any response, and so the natives had waived their right to object to the pipeline.
DS: The Standing Rock tribal council had officially voted to have Phyllis Young represent the tribal council to oppose the XL pipeline. Though they didn’t have an official resolution transferring her authority over to the Dakota Access pipeline, the entire tribal council gave their consent to have her lead the opposition. What she did was join with the young people at Oceti Sakowin so, from our point of view, the protest was an official action on the part of the Standing Rock reservation.
In representing Chase Iron Eyes and HolyElk Lafferty, there is the necessity defense, which I have used a number of times in other cases. It gives us a means to go to the jury and say, whatever the technicalities are here under the law, if you believe that the actions being taken by the defendants were necessary because the minimal harm, trespassing, etc., that they did is greatly outweighed by some greater evil that they were attempting to stop or prevent through their conduct, then you can acquit them because you find that it was necessary for them to do it. It is a long-standing common law defense that we would argue is covered under the Ninth Amendment.
We raised this necessity defense where we asserted that Iron Eyes and HolyElk, being integral, lifelong members of the Lakota tribe, hold a good-faith belief that the land where they were protesting was not legally taken by the U.S. government, and, therefore, they were not trespassing on this land.
AM: It seems that the charges that are being brought are far more serious than the kind you typically see in civil disobedience cases.
DS: They have deployed an array of charges similar to charges being brought against the protesters at Trump’s inauguration. They have charged Chase Iron Eyes with felony inciting a riot, essentially charging him with instigating an insurrection against the State of North Dakota because on his website he invited people to come pray and participate in a peaceful demonstration. They are casting him in the role of a jihadist terrorist. The terrorist angle comes from the influence of TigerSwan, a private security group that is a spin-off of the infamous Blackwater International (tinyurl.com/yayh8frh).
AM: Wasn’t the first confrontation with the protesters instigated by DAPL’s own private security?
DS: Yes, ETP hired Leighton Security Company, which brought in a subcontractor, whose attack dogs were exactly like the attack dogs that the police deployed in the Civil Rights demonstrations [in the 1960s] in Mississippi. They used the dogs in October 2016 to drive the protesters back from the north side of Backwater Creek.
In November the protests succeeded in getting President Barack Obama to deny ETP an easement under Lake Oahe, because ETP’s environmental assessment excluded any consideration of the adverse impact that the pipeline would have on a racial minority community. But as soon as Trump was inaugurated, he issued his own executive order ordering ACE to set aside all the environmental impact criteria and to grant the certificate of easement.
It was right after Trump issued his order that Chase Iron Eyes and his people went up onto this hill on the western side of Highway 1806 outside the eminent domain territory. The Lakota believe that the U.S. government got title to that land solely through the passage of the Act of 1877, by which Congress said, screw the treaties, we are taking possession of all the land that is not part of the reservations. The U.S. Supreme Court in the Black Hills decision ruled specifically that the 1877 Act did not, in fact, vest title to the U.S. government in that land [United States v. Sioux Nation of Indians, 448 U.S. 371, 424 (1980)].
After Chase’s group went up on that hill, TigerSwan ordered the police to go and arrest them. They flanked the hill on the western side so that the group couldn’t “escape,” and the National Guard and state police marched up and demanded that a negotiating team from the group come down to Backwater Bridge. When the group came down, a deputy sheriff from Morton County kept saying, “Where is Chase Iron Eyes?” When Chase identified himself, they threatened to arrest everyone on site who didn’t leave immediately. Chase and his group decided not to leave, and instead sat down and started this big prayer ceremony that they had gone up there to do.
The police brought in [militarized vehicles] and 50-caliber water hoses and attacked the camp. They moved in a military phalanx with armed guards and tear gas and stun grenades across Backwater Bridge. When they did that, the people in the Oceti Sakowin camp on the eastern side of the highway thought that they were coming to attack Oceti Sakowin. So they came up onto the highway and blocked the advance. There was a confrontation, and they arrested three people. The police then marched up the hill where the 76 were sitting peacefully on the top praying with linked arms and proceeded to grab them by the throat and forcefully break them apart and drag them away. They arrested them all and charged them with trespassing, including Chase and HolyElk, and charged Chase with felony inciting a riot, which carries a penalty of five years in prison and revocation of his license to practice law.
The bottom line is that land they were praying on was purportedly seized by the U.S. government under the 1877 Act, which we claim the Supreme Court has ruled did not affect a transfer of title to the United States. We have asserted a necessity defense on behalf of Chase and HolyElk that asserts: (1) that ETP and DAPL made a decision to change the route of the pipeline because the 97 percent white population of Bismarck objected to the prior route, based on an ACE internal memo we have; and (2) that the directors of ETP and DAPL violated federal criminal law and the U.S. Civil Rights Act because of a class-based, invasive, racially discriminatory animus.
We allege ETP knew that a vast majority of the mostly white populace of North Dakota harbors a prejudice against the native people. They knew that the white leadership of the State of North Dakota also harbors a prejudice against the native people, and so they thought they could get away with the new route. This presents a very important question, whether a motivation on the part of a corporation to take advantage of the racial prejudice of people in the state to build a pipeline like this, directly adjacent to an 82 percent racial minority population, is a violation of the 1964 Civil Rights Act. We’ve argued that Chase and HolyElk and the other people were up on that hill specifically to take action to try and stop them from carrying out the unlawful objectives of that criminal, anti–civil rights conspiracy.
Secondly, we’ve asserted that TigerSwan racially profiled and mischaracterized the demonstrators as anti-Christian, indigenous, religiously driven jihadist terrorists, who therefore could be deprived of equal protection of the law that protects them against a whole series of things that TigerSwan was doing, such as electronic surveillance, political surveillance, and infiltration. We allege that TigerSwan mounted a public diplomacy campaign, which included drafting totally false press reports and sending them to all the local news outlets, where they were published verbatim, describing these people as violent and carrying guns and all kinds of stuff. We are arguing that profiling the demonstrators as religiously motivated terrorists is in fact a violation of Section 1985 of the Civil Rights Act.
An additional ground for our necessity defense is that Trump’s executive order directing ACE to reverse its decision on the easement was a violation of the Administrative Procedures Act. Chase was aware of this when he climbed that hill.
AM: Procedurally, where are the hundreds of criminal cases now?
DS: There were 843 criminal defendants, the vast majority of which were in state court. There are a handful in federal court. Of the 700 some cases that have already been disposed of, 99 percent of them have been acquitted, the charges dismissed, or have been given deferred sentences. The remaining defendants are charged with a series of misdemeanor crimes: trespassing, refusing a lawful order of a law enforcement officer during a civil disturbance, obstructing a law enforcement officer in the course and performance of his duties, engaging in a public disturbance, creating a public nuisance, and disorderly conduct.
There are only 130 or so cases left, 75 of which are all the defendants from the hilltop camp. We are representing Iron Eyes and Lafferty, and the Water Protector Legal Collective is defending the other defendants.
AM: As I recall, in addition to ETP relying on private security, there was a call-up of state troopers from not only North Dakota but surrounding states.
DS: We have video footage from April or May 2016 of Morton County deputy sheriffs laughing, talking, and dancing with the demonstrators. There was a lot of cordiality going on at the origins of this thing. Then ETP got angry that there wasn’t enough action being taken and this demonstration was giving them a bad name. In September, they insisted that the governor bring in the [North Dakota] National Guard. And then they brought in Leighton Security, which brought in the dogs, and then ETP brought in TigerSwan. TigerSwan kept insisting that the authorities treat this whole thing as a major national emergency and use this situation as a “readiness exercise” so that they could mobilize all the emergency forces from around the area. So, the governor invoked this peculiar executive authority to call in all these other law enforcement people.
AM: I remember that Highway 1806 was barricaded at some point to limit access to the Water Protector’s camps.
DS: We have the “sitreps” [situation reports] in which TigerSwan demanded that the police shut off the highway, which they did, closing off 1806 about eight to ten miles north of Backwater Bridge. They were attempting to close off access to the tribe’s casino, which is its main sources of income. This is a classic TigerSwan technique. When you think like a hammer, everything looks like a nail.
One of the most profound legal issues in this case is the mobilization of private military forces acting on behalf of oil corporations to suppress opponents of drilling and despoiling of water. Companies like TigerSwan employ the entire range of techniques they developed in the Middle East to fight terrorists. This is the first time these private military forces have been deployed against American citizens on domestic soil.