The Dakota Access Pipeline may be on hold, but Water Protectors are still fighting for their freedom

“It was an exercise in humiliation and embarrassment.”

A crowd gathers at the Oceti Sakowin camp after it was announced that the U.S. Army Corps of Engineers won’t grant easement for the Dakota Access oil pipeline. CREDIT: AP Photo/David Goldman
A crowd gathers at the Oceti Sakowin camp after it was announced that the U.S. Army Corps of Engineers won’t grant easement for the Dakota Access oil pipeline. CREDIT: AP Photo/David Goldman

Sara Long, an indigenous protester from Portland, Oregon was first arrested in September, while livestreaming Dakota Access Pipeline workers laying pipe where the U.S. Army Corps of Engineers instructed them not to. The Morton County Sheriff’s Department nabbed her for criminal trespassing, and she was subjected to an invasive strip search for the misdemeanor charge.

She felt unsafe and assaulted at the time, but it was during her second arrest on November 2 — a few days after Water Protectors were locked in dog kennels and numbered with black marker — that she feared for her life.

November 2 was an unseasonably warm and sunny day, and Long was protesting at the state capitol building in Bismarck. She was eventually arrested for criminal trespassing a second time and booked at the Burleigh County Detention Center, where she was held in a small cell — approximately 8 by 8 feet — with six women. None of the women were told where they’d be jailed. They were only instructed to use the steel toilet in their cell before they left.

At the protest, Long was feeling healthy. But during the hours-long drive to the Cass County Jail, hundreds of miles from Bismarck, she fell gravely ill. By the time she arrived at the facility, she was extremely dizzy, unable to stand, and physically incapable of submitting to a strip search. She couldn’t pull herself off of the floor to eat, drink water, or use the bathroom. All she could manage to do was lay on the floor and beg for medical help that never came.

Jail staff informed her that she was being non-compliant and declined to treat her, she said. Meanwhile, authorities proceeded with Long’s court arraignment.

“It is so terrifying. I would say the last eight hours of it, I was wondering if I was ever going to see my kids again,” Long told ThinkProgress. “It was an exercise in humiliation and embarrassment.”

Before the Army Corp decided not to approve construction on the proposed land last Sunday, temporarily stopping the $3.7-billion project in its tracks, the Standing Rock Sioux and supporters who flocked to its side were subjected to horror after horror committed by local law enforcement agencies. One of the most widely cited incidents occurred four days before Thanksgiving, when the Morton County Sheriff’s Department unloaded water cannons, rubber bullets, and concussion grenades on protesters, who call themselves Water Protectors, in freezing temperatures for more than 10 hours.

Yet physical and psychological violence against demonstrators wasn’t limited to the front lines. Mass protests resulted in mass arrests, and the people dragged to jail on trumped up charges endured hours — sometimes days — of discrimination, harassment, and abuse. And while Water Protectors scored a major victory with the Army Corps decision, the consequences of those arrests remain to be seen.

People form a circle for the morning prayer at the Oceti Sakowin camp. CREDIT: AP Photo/David Goldman
People form a circle for the morning prayer at the Oceti Sakowin camp. CREDIT: AP Photo/David Goldman

‘Someone is going to die’

Approximately 550 Water Protectors were arrested in the months since the 1,172-mile pipeline was announced. The stories recounted by detainees had many features in common.

Like Long, many were simply filming illegal activity when they were arrested. Others were rounded up in the middle of prayer or grabbed for participating in lockdowns — during which they were chained to construction sites and refused to budge. People were randomly stopped and subjected to warrantless searches as well, before they were cuffed and hauled away.

Cindy Gomez-Schempp, a local reporter and paralegal who provided jail support by traveling around the state to pick up detainees and return them to camps, told ThinkProgress that protesters weren’t given enough time to follow officers’ commands before they were arrested. Many were beaten or brutalized and then forced to sit on the ground with their hands zip-tied for long periods of time — with no consideration of the weather or temperature — before they were hauled off to booking.

According to Angela Biben, a ground coordinator for the Water Protector Legal Collective, a group that provides court and jail support services in conjunction with the National Lawyers Guild, people were typically booked at the Morton County Sheriff’s Department and then transported to jails throughout the state. Most protesters were charged with misdemeanors for criminal trespass, disorderly conduct, obstruction, or inciting a riot, although some of them received felony charges of reckless endangerment and conspiracy.

On October 27, 139 people were arrested and charged for conspiracy by fire, or setting equipment on fire — a punishment activists claim is a way to harass and deter them from protesting.

“This is a way of harassing everybody,” Ron His Horse Is Thunder reported to the Guardian. “The message is ‘don’t bother going out on the frontlines or we are going to hit you with felonies.”

Regardless of the offense, protesters and service providers agree that Water Protectors’ treatment — from the point of arrest to the time they were released — was degrading and inhumane. In the days leading up to the Army Corps announcement, people were still held in dog kennels with feces during the booking process, some went unfed for 24 hours, and detainees with chronic illnesses were denied life-saving medication, Biben said.

In short, medical neglect and the failure to provide basic, life-saving necessities to Water Protectors —such as Long — was common, according to activists and legal aids.

Capt. Andy Frobig of the Cass County Jail denied allegations that the jail had subjected protesters to inhumane treatment. He told ThinkProgress that Long did report feeling “cold, dizzy, and unable to get up,” but “nothing ever became an actual medical emergency like she was claiming.”

Staff concluded that her illness was not as grave as Long said it was, because she wasn’t sweaty and her breathing was normal, Frobig said. Long was denied a blanket when she first asked because staff were trying to get her showered and housed. An incident report said that Long was offered over-the-counter medicine and crackers, but she didn’t take them because she thought she would throw them back up. She allegedly refused to answer questions about her illness, besides saying that she was extremely dizzy and unable to get up.

Eventually staff concluded that she was “not cooperating,” Frobig said. But Long maintains that her life was in danger that night.

During a phone call with ThinkProgress, Long relayed additional examples of abuse and malpractice in local jails. She pointed to the daughter of Ladonna Allard, the founder of the Sacred Stone Camp, who was allegedly strip-searched and left naked in a freezing cell for hours in Morton County’s jail. Long also recalled a cell mate’s story about a woman who suffered multiple seizures behind bars and received nothing more than an ice pack.

“I truly and honestly believe that someone is going to die in Cass County Jail for lack of medical treatment,” she said.

Frobig disputes such claims. “I do not concur in any way that our medical services are lacking,” he said.

Dozens of protestors demonstrating against the expansion of the Dakota Access Pipeline wade in cold creek waters confronting local police. CREDIT: AP Photo/John L. Mone
Dozens of protestors demonstrating against the expansion of the Dakota Access Pipeline wade in cold creek waters confronting local police. CREDIT: AP Photo/John L. Mone

No strangers to the system

“A lot of us were sleeping on floors. A lot of people didn’t have blankets or mats to sleep on. When we first got in, a lot of people didn’t have socks or shoes,” Atsa E’sha Hoferer said of his own arrest in October.

Hoferer was one of 27 people rounded up and jailed on Indigenous People’s Day for criminal trespassing. In a show of solidarity, native people from all over the country and parts of South America had set up a site where they performed religious ceremonies — honoring each other, indigenous communities worldwide, and the land.

“That day was a beautiful day — a prayerful day,” Hoferer told ThinkProgress. The joyous occasion came to an abrupt end when Morton County Sheriff’s Department officers arrived with military weapons, formed a line around the Water Protectors, and started making arrests. Hoferer, who livestreamed the celebration, and whose brother captured the arrest, said that the sheriff department’s correctional center in Mandan, North Dakota was simply unable to accommodate all of the people shuffled through its doors, no matter how hard they tried. People had to cram into a space that doubled as an exercise room and library.

“Right then and there, they didn’t have any space to place us. We were sitting in [the room] for eight to ten hours,” he said.

Indigenous people are no strangers to the criminal justice system, due to their long and fraught history of incarceration in the U.S. —especially in North Dakota.

Historians link the mass incarceration of Native Americans to genocidal colonialism. Colonizers sought to wipe out indigenous people and erase their histories, so they criminalized native traditions, including “dancing, drumming, speaking of Native languages and wearing long hair,” TruthOut reported in February. Tribal courts established by the Bureau of Indian Affairs in 1824 once embraced a restorative justice model on reservations, but the federal government stripped those courts of authority over time. As a result, natives were forced into a federal system that imposed harsher sentences.

The criminalization of Native Americans continues today, due in large part to limited legal jurisdiction on reservations.

Based on 2010 census data, the Prison Policy Initiative concluded that Native Americans were disproportionately represented in prisons and jails in 18 states. Between 2009 and 2013, the number of Native American offenders in federal prison skyrocketed by 27.2 percent, per findings from the U.S. Sentencing Commission (USSC). Annual reports from the Commission show a slight decline in the years since. But in 2015, the USSC announced a review of the punishments inflicted on Native Americans, who receive “longer sentences than white people who commit the same crime,” wrote Judge Ralph Erickson, the longstanding chief judge in the District of North Dakota.

Indeed, the prison system is ballooning in North Dakota and the percentage of Native Americans doing time in state facilities is quadruple their percentage of the state population, so it’s no surprise to anyone that jails in and around Standing Rock overflowed with indigenous people in recent months. But unlike natives arrested in the past, there is now a robust group of people working around the clock to help them.

They try to make it as difficult as humanly possible.

When mass arrests occurred, Biben and her partners at the Water Protector Legal Collective contacted jailers to get the names of all detainees. Once people were booked and transported to various facilities the collective — in partnership with the Lawyer’s Guild — conducted bail advisements over the phone. The collective also coordinated transportation for protectors when they were released and court support services short of legal representation, because most members of the collective aren’t licensed to practice law in North Dakota.

The original Water Protector camp formed in April — the Camp of the Sacred Stone — also created a pool of money for Water Protectors who get tied up in the system. The fund is used to pay people’s bail, recover property seized by law enforcement — including cars, kayaks, horses, and dogs — and hire attorneys for those who don’t qualify for a court-appointed one. Many Water Protectors live outside of North Dakota and have to spend exorbitant sums of money getting to and from the state, so the money is also used to cover the costs of travel and lodging.

Nevertheless, support staff argue that the process of assisting protesters has been difficult, largely due to law enforcement obstructing justice every step of the way.

“It’s been very unprofessional to say the least. At the most, it’s been this egregious violation of human dignity and rights,” Biben said, noting that conversations between protectors and legal support staff aren’t confidential. Early on, her team was allowed to conduct bail advisements in person, but never in a private setting. Before Sunday’s announcement, advisements were conducted over the phone, but those calls were monitored and recorded by jail staff, Biben said.

“There’s been several cases where they arrested somebody and [then] they un-arrested them,” Gomez-Schempp said. “They didn’t have any paperwork or official charges, so [they were] basically taking them there for no reason and forcing them to stay.” In some cases, jail staff released people who had no phone, transportation, or money in the middle of the night, hours away from home, she said. “They try to make it as difficult as humanly possible.”

Finding lawyers for protesters has been an ever greater hurdle to climb.

“There’s been a lot of issues with the application process and getting counsel appointed,” Biben continued. “A lot of the folks arrested on [October 27] were given applications in the jail and given misinformation — whether intentionally or out of ignorance — by the jailers in how to fill out forms, and then denied.”

Biben pointed to a question about how many cars each detainee had. Instead of writing the number 0, many people wrote “none” and subsequently had their applications for court-appointed attorneys thrown out.

Today, there is only one attorney licensed to practice in North Dakota who is working closely with the legal team: Chad Nodland. Nodland is currently providing technical assistance and educating the collective about North Dakota’s laws and court culture. He also appeared at approximately 300 bond hearings, Biben said. But many Water Protectors made their first court appearances alone.

”We don’t have a bunch of North Dakota criminal defense attorneys who are sympathetic to Water Protectors, even though they would likely qualify for a public defender,” Biben said.

The pipeline is on hold, but the camps remain. CREDIT: AP Photo/David Goldman
The pipeline is on hold, but the camps remain. CREDIT: AP Photo/David Goldman

An unnerving future

One frightening question is still hovering over hundreds of Water Protectors’ heads: Will they walk free, or will they be convicted and jailed?

On Monday, McLean County State’s Attorney Ladd Erickson, the prosecutor taking the lead on their cases, filed a court motion to force all defendants to pay for their public defense attorney and all court costs associated with their prosecution. He argues that Water Protectors were legally advised to “clog our jails and court system” and intended to deplete North Dakota’s resources.

The motion reads:

“Dakota Access Pipeline (DAPL) protest strategy is to inflict economic drains on North Dakota law enforcement and court system resources. To date, the State has spent $17 million dollars to address violence, lawlessness, and protection of our citizens and their private property. The belligerent actions of DAPL protesters are done intentionally, and for political communication through social media. Each protester attack on our officers, each riot, and each incidence of private property destruction has been done to create fake news videos used to bring attention, celebrities, both passionate and very gullible people, and finally money — all to be focused on issues of national discontent.”

Some people, like Long, have been lucky enough to have the charges against them dropped. Yet the fate of more than roughly 550 Water Protectors, including Hoferer, is still hanging the balance, even after the Army Corps decision. If Erickson has his way, all of them will be convicted and then drained of money they don’t have as indigent defendants.

According to Biben, some of the trumped up charges have been dropped, but most cases are still pending. For instance, all of the felony charges issued on October 27 were dropped, but those protesters still have public nuisance and riot misdemeanors on the table.

Hoferer is optimistic that his misdemeanor trespassing charge will be dropped before going to trial next month, but Biben is concerned that the lack of sympathy for Water Protectors will hurt them.

“I don’t know that the tone has changed since Sunday, but we’re also concerned about the ability of the bench to treat all Water Protectors fairly and impartially,” she said. Many of the protesters have trials this month and still have no lawyers representing them, either because their applications for a court-appointed attorney were denied or because of deep-seated mistrust of the system.

No matter what happens to them now, Water Protectors are already traumatized by their arrests.

“The vast majority of them have no criminal history whatsoever, and they’re professional people,” said Biben. “We have doctors, lawyers, teachers, college administrators — principled, educated, upstanding members of the community.” With “the weight of a felony hanging over [their heads] for months at a time,” people have to cope with the fear of a possible conviction while continuing their normal lives.

There is also no guarantee that the pipeline will be rerouted, so there could be additional arrests in the near future.

One week has passed since the Army Corps temporarily halted the pipeline, but Water Protectors are still prepared for a fight.

“People do come and go, but a big majority of the people are still there. We did our part here,” Hoferer said. “We’re still going to continue to be here. It’s really up to the American citizens now to continue to fight outside of camp.”