UPDATE: Ten people were arrested, and one protester was injured during confrontation with North Dakota police during evictions Wednesday. Forty-six more were arrested Thursday in a police sweep of the main protest camp.
ALONG THE CANNONBALL RIVER, North Dakota—The following story is brought to you by the taxpayers of North Dakota.
It was a bitter cold night on the Backwater Bridge when Efrain Montalvo got the desperate call from the front line.
“The medics were screaming for help, because they were overwhelmed,” remembered Montalvo, 25, a member of the International Indigenous Youth Council at Standing Rock. He looked up through white mists of tear gas, cut by screams and shouts on the bridge. Native elders stood motionless in front of barricades of razor wire, clutching feathers, burning prayer bundles of sage, holding their ground. They were unarmed, eyes shut tight against the clouds of pepper spray. Others held up plywood shields or the tops of plastic bins against the spray. “Disperse!” shouted police, who then unleashed a fire hose, soaking protesters in the sub-freezing temperatures. Icicles formed on their hair. Their winter jackets crunched.
Montalvo moved swiftly toward the front line, carrying bottles of water and Milk of Magnesia (to relieve the tear gas sting) toward the medics. Riot-clad police, ensconced behind concrete barriers and the looping wire, began firing rubber bullets. Montalvo watched an elder fall at his feet, his staff clattering to the pavement of the shut-down state highway. Then police launched a barrage of smoking tear-gas canisters from grenade launchers.
“That’s when people started panicking,” Montalvo recalled.
A tear-gas canister hit Montalvo squarely in the chest. He inhaled its smoke deeply, then wandered aimlessly, hands over his eyes. Two minutes later, he could see again. Another canister exploded at his feet. He saw a brilliant white light. Then everything went black and silent.
Montalvo began shaking uncontrollably. For 10 minutes, “I couldn’t remember who I was, where I was.” Medics whisked him off the bridge. Days later, he could still taste the tear gas in his mouth.
Montalvo was one of hundreds of unarmed “water protectors” facing down North Dakota police at the edge of the Standing Rock Sioux Reservation on that evening of Nov. 20. The clashes had begun after protesters attempted to clear the bridge of two burned-out pickup trucks blocking highway passage since a day of mass arrests three weeks earlier.
Throughout the fall and early winter, the 10-month showdown over the Dakota Access Pipeline (DAPL) has been bitter and violent. At least 1,000 Standing Rock protesters, according to camp medics, have been treated for chemical poisoning, hypothermia, rubber-bullet and “nonlethal” beanbag wounds, and many more serious injuries, all as a direct result of violence from militarized police, who sometimes arrive by the hundreds. On Nov. 20 at the Backwater Bridge, 21-year-old Sophia Wilansky nearly had her arm blown off. Vanessa Dundon, a 32-year-old Navajo, was shot in the eye with a tear-gas canister. In all, some 750 people have been arrested in dozens of confrontations with police. Many have been held in dog kennel-like metal cages, numbers scrawled on their arms.
“We are using public and military employees to do the private work of a pipeline company,” said North Dakota Democratic State Sen. Tim Mathern. Mathern said the state has borrowed tens of millions of dollars from the Bank of North Dakota to fuel the police presence. Hundreds of state police, county sheriff’s deputies from seven states, and the North Dakota National Guard have essentially served as a private security force for the Fortune 500 company Energy Transfer Partners—thus helping its crews lay pipe across North Dakota and to the edge of the Missouri River.
On Feb. 7, the Army Corps of Engineers, on the orders of President Trump, announced its final approval of the project. Construction crews resumed work almost immediately, despite vows by the Standing Rock and Cheyenne River Sioux tribes to stop the pipeline in court. Native opponents and their supporters have pledged to block the pipeline to prevent contamination of the Missouri River, a source of water for the Sioux people and at least 10 million others downstream.
But in recent weeks the camp population has fallen well below 1,000, not nearly enough to disrupt construction crews and the police lines protecting them. As many as 200 water protectors, including a contingent of military veterans, have been pouring back into Standing Rock, but mostly to help with a massive cleanup of the main protest camp. Authorities set a Feb. 22 deadline to evacuate the camp. Police, military and private security vehicles are poised on the ridges nearby. Federal law-enforcement officers were “swarming” in the nearby tribal casino, an apparent staging area for an eviction force. The Trump administration appears eager to crack down.
On Wednesday police descended toward the camp, making ten arrests, including of one man who suffered a hip injury, according to Morton County Sheriff Kyle Kirchmeier. The man, identified as Native activist Eric Poemz, had been attempting to livestream the day’s events; activists say police violently slammed him to the ground. Earlier, before police arrived, a 17-year-old girl suffered severe burns during a ceremonial burning of one of the remaining structures in the main protest camp, or what is left of it.
Most of the remaining “water protectors” left willingly Wednesday. Those from outside North Dakota are being offered one way tickets out of the state. This leaves a core of perhaps 25-50 resisters in camp. They will be given “every opportunity to leave" without arrest on Thursday, according to North Dakota Gov. Doug Burgum. Burgum claimed that “to be arrested today you really had to be trying.” However this was contradicted by independent journalists, including Jenni Monet of Indian Country Today and the Center for Investigative reporting, who said officers targeted and chased them.
In a joint press conference Wednesday with Burgum, North Dakota Sen. John Hoeven praised the joint police force, which he said has shown “incredible restraint.”
Hours later, Bureau of Indian Affairs police tazed an unidentified Native man in the lobby of the Prairie Knights Casino as Standing Rock. The man had been slow to cooperate with officers, but unaggressive. He was standing still with his hands in the air when the officer fired his taser. He fell to the floor, moaning.
On Thursday morning, militarized police vehicles, including bearcats, humvees, and an "MRAP" built to withstand IED explosions in Iraq, moved down the muddy hillsides and into what is left of the Oceti Sakowin, or Seven Council Fires camp. Flanked by snowmobiles, bulldozers and a line of advancing police in fatigues, automatic rifles and riot gear, they surrounded tents and teepees, as shown in a livefeed by the Unicorn Riot media collective. Some of the structures were empty; in others, some of the last resisters were believed to be hiding. In at least one case officers livestream video shoed officers pointing assault rifles directly at resisters, on their knees and praying. By Thursday afternoon, Morton County authories said they had cleared the camp and would “restore the land to its pre-protest condition.” Sheriff Kyle Kirchmeier seemed pleased to add: “We finally introduced rule of law to the Oceti camp.”
North Dakota’s taxpayer-funded aggression, with enthusiastic backing from the Trump administration, is now at the center of a federal class-action civil rights lawsuit and a United Nations fact-finding tour to Standing Rock.
Vanessa Dundon is the lead plaintiff in the civil-rights lawsuit accusing North Dakota officials of “excessive police force” in “an increasingly violent campaign… to suppress and chill plaintiffs’ constitutionally protected rights.” The state counters that the protesters engage in “riots,” and that its officers are frequently “faced with bodily injury and death.” However, the sheer number of protesters injured during the ongoing clashes dwarfs the relative handful reported by the Morton County Sheriff’s Department.
More than 100 people, in sworn statements in the civil-rights lawsuit, in testimony before the United Nations working group recently invited to Standing Rock, and in dozens more interviews with me, have corroborated the accounts of Montalvo and others.
Six decades after tear gas, dogs, police batons, and hoses were turned on nonviolent civil-rights marchers in the Deep South, those same tactics are deployed on overwhelmingly peaceful protesters in the Northern Plains. By all appearances, North Dakota has become the Selma of the North.
And in a nod to Jim Crow, North Dakota lawmakers recently passed a package of new bills that would make it a crime to wear a mask during demonstrations, and a felony if you cause $1,000 or more in damages while protesting. Another proposed bill would make it legal for motorists to “unintentionally” run over and kill protesters in the road.
“North Dakota has lost its mind,” said Linda Black Elk of the Standing Rock Medic and Healers Council, and a professor at Sitting Bull College on the reservation. “They have completely lost it, with the use of their military weaponry and their consistent escalation of violence against peaceful water protectors. They will not stop until they have tanks, and this entire area looks like occupied Palestine.”
“There is no doubt that law enforcement used life-threatening crowd-control weapons excessively and indiscriminately,” said Jamil Dakwar, director of the Human Rights Program of the ACLU, who recently traveled to Standing Rock to facilitate testimonies for the UN Working Group on Business and Human Rights, which will prepare a report for the United Nations General Assembly.
Eyewitnesses in the civil-rights lawsuit describe being “shot in the eye” with rubber bullets or watching others “shot in the face” and head, or get “pelted by munitions”; they recount watching law enforcement “hit people with batons… forcefully push[ing] people onto the concrete” and spraying them “at point blank range with high pressure chemical sprays in the face.” In one case, YouTube videos show dogs from a private pipeline security team biting protesters; one video shows blood on one dog’s mouth. Others describe Native elders, kneeling or standing in prayer, doused with tear gas, including one man “who was sprayed continuously for two to five minutes,” but who did not budge. Another young man was soaked for several minutes in sub-freezing temperatures with the high-powered police hose, “and he just continued to sit there praying.”
In their response to the civil-rights complaint, North Dakota officials admit most protesters are nonviolent, but cite “a very active and sizeable minority of protesters [who] take pride in trampling upon the rights of others, and in terrorizing citizens and Law Enforcement through threats and acts of violence.” In some cases, protesters have thrown logs or sticks at officers, or tear-gas canisters back across police lines. Police accused one woman of discharging a weapon at a demonstration; her case is pending. “Water protectors” have chained themselves to construction equipment, and have been charged with burning equipment. During the day of mass arrests on Oct. 27, a protester’s truck rammed a pipeline company pickup, forcing it off the road. The driver was a DAPL security employee who was spotted driving toward the main camp with a loaded AR-15.
Police also claim—to strong denials—that protesters have thrown bags of feces at police. Previous police claims, that protesters wielded pipe bombs or bows and arrows, were later shown to be false, as a North Dakota sheriff admitted during a confrontation I recorded in late October. And their idea of “aggressive behavior” includes protesters who wear goggles for protection against tear gas. Riot-clad police, standing behind barriers of concrete and concertina wire, holding full-length body shields, and flanking military surplus vehicles built to withstand IED explosions in Iraq, hardly appear “terrorized.”
On Feb. 7, a federal judge in Bismarck denied the protesters’ request for a preliminary injunction against the police.
“The plaintiffs and pipeline protesters had no constitutional right to be present and engage in civil protest on the Backwater Bridge” on Nov. 20, U.S. District Court Judge Daniel Hovland wrote. He agreed that “[t]he majority of the protesters are nonviolent,” but cited “a sizeable minority of protesters who can best be categorized as a group of unlawful and violent agitators who are masked up; terrorize law enforcement officers with taunting, threats, and acts of violence; and whose primary purpose is to simply create chaos and mayhem. To describe these agitators as ‘peaceful and prayerful’ defies common sense.”
Judge Hovland is described as fair-minded by lawyers who have worked extensively in his court. But he has a reputation of standing firmly with the interests of the state against the claims of “outsiders.” In a move numerous lawyers describe as “highly unusual,” the judge allowed police and state employees to redact their names from sworn statements, thus fueling the narrative of law enforcement under siege by outside agitators. The case will continue in federal court, likely for at least another year.
North Dakota law-enforcement tactics, meanwhile, have begun to draw criticism across the normally unbreachable blue line. A former commissioner of the Baltimore Police Department called the police actions “excessive” and criticized the “unnecessary use of force” by the North Dakota authorities. In a statement filed by the plaintiffs in the civil-rights lawsuit, Thomas C. Frazier accused police of “deliberately inflict[ing] physical punishment” when the proper action was simply to arrest protesters (PDF).
“There is simply no reason to continue using force on demonstrators who are simply nonviolently disobeying a dispersal order once it becomes clear that they are determined to hold their ground until arrested,” he said.
Frazier, who reviewed sworn statements and videos in the civil-rights complaint, said he had “never seen, in any other American city or county, the use of water hoses or a water cannon against a United States citizen for any reason although I have read about this occurring in the early 1960s against civil-rights marchers. The brute force of the impact of the water jet is a force option that would not be considered appropriate by most modern police chiefs or sheriffs, or tolerated by their citizenry. In this case, the use of this device in sub-freezing temperatures, in my opinion, serves no reasonable purpose and can only be considered a retaliatory and punitive action.”
A spokesman for the Morton County Sheriff’s Department, Rob Keller, said he could not comment on Frazier’s remarks, given the lawsuit. Nor would he comment on queries by the ACLU’s Dakwar and others about what kind of protocol Morton County employs for use of force. In a December email, however, Keller wrote that use of force must be “objectively reasonable and utilized only to the degree reasonably necessary to accomplish a legitimate law-enforcement purpose.”
Dakwar, however, blasted the “resounding lack of accountability for law-enforcement agents and commanders.”
“Thus far, no officer has been charged with excessive use of force, but over 600 protesters, and even journalists have been arrested for excessive and outrageous charges like criminal trespassing,” he added. Journalist Jenni Monet, on assignment for Indian Country Today and the Center for Investigative Reporting, was recently arrested while covering a police sweep of a “rogue” protest camp near Standing Rock. She was charged with criminal trespass and “engaging in a riot,” and faces an arraignment Wednesday.
Against police claims of “riotous” and “terrorizing” behavior stand countless testimonies of peaceful protest.
“My hands were raised in the air,” said Marcus Mitchell, a 21-year-old Navajo, echoing a common theme. “And I was saying: ‘I am an American citizen practicing my First Amendment right to freedom of speech. I am unarmed and I am in peaceful protest.’ I was then shot in the leg.”
For the water protectors, the toll has not only been physical. “I could not sleep that night,” said Grecia Rojas, 27, of Crescent City, California. “I kept having dreams about what happened to me and other people on the bridge. I keep hearing people screaming and the sound of shots being fired when I try to sleep. I am nervous and scared all the time and do not want to be alone.”
For protesters, Standing Rock feels like a war zone. Roadblocks prevent travel on state highways. Helicopters and light planes circle over the camps. Police on nearby hilltops scan with binoculars or shoot videos from across concrete barriers. At dozens of confrontations over the last six months, water protectors stand against forces of heavily armed police and National Guardsman, sometimes in the hundreds. Now, documents show that the state has gone into tens of millions of dollars in debt to finance the police aggression.
North Dakota legislators have borrowed a total $28 million from the Bank of North Dakota specifically to fund the police and National Guard presence and other expenses for the pipeline protests. So far, North Dakota taxpayers have borne the entire brunt of the bill, which has included some $4 million for National Guard pay and travel, $2.2 million for the state highway patrol, $503,000 for “security supplies,” and $354,000 for cameras, according to official state documents, including internal memos, emergency budget requests, and expenditure reports.
“The North Dakota taxpayers are at risk for paying the bill of a multinational corporation that’s extracting our resources,” said Mathern, the state senator. Mathern, a rare North Dakota Democrat, was the lone dissenter in a recent vote to authorize the bank line of credit. “Part of this is literally an expenditure directly protecting the private property of a pipeline company. I mean, this just gets more and more difficult to believe, the closer I get to these details.”
The new funds may serve to justify an expansion of North Dakota’s police force and state-of-the-art military supplies. The expenditure, Mathern said, creates “an opportunity for these law-enforcement agencies to gain more support,” including more riot gear, and “an entire new radio communications system. It’s going to cost millions and millions of dollars.”
Among the other details Mathern and the documents verify: $1.9 million to the state department of health, in part to increase insurance benefits for National Guardsmen, some of whom were complaining of respiratory problems since being deployed to Standing Rock.
Mathern wanted to know more about what exactly the state was paying for, so he decided to travel to Standing Rock, and the police line just north of there.
“I was taken aback by all the machinery,” Mathern said of the military and police vehicles. “I had never seen so much.”
Police would not allow even a state senator to cross their roadblock and head south toward the water protectors’ camp near Standing Rock. His colleagues had asked him not to go, warning Mathern that he could be injured or killed by protesters—sentiments he attributed to a “wave of racism that is being accentuated and institutionalized in Bismarck and Mandan.”
So Mathern drove across gravel roads, arriving at the main Oceti Sakowin (Seven Council Fires) camp, where he met randomly with Natives and other activists. “I had a really wonderful time,” he recounted. “It was just really clear to me that these people needed support and encouragement and help.”
Then the senator drove back to Bismarck. “It would be wonderful if we could use all this money to help people, rather than just roving the hills there,” he said in an interview two days later. “When I see the vulnerability of these people living in this area, I can’t believe all the military might” the state is funding.
It’s unclear how much longer the state will find it necessary to fund its militarized backing of the Dakota Access pipeline. With its recent announcement to approve the final stages of the pipeline, the Army Corps of Engineers reversed itself, suddenly declaring it would not conduct an environmental review after all, and abandoning thousands of public comments. This pushes the issue to the courts, and to divestment battles. Recently, Seattle’s city council voted to divest $3 billion from Wells Fargo because of its investments in the pipeline company.
But as Wednesday’s camp eviction deadline looms, and federal and state police surround the camp from three directions, soon the fight may soon be joined at the source. At Standing Rock, water protectors and police may again square off in plain sight of the pipeline and the drill pad at the Missouri River—the last stage before the oil begins to flow. Police have given no indication that they intend to stand down.
“Physical scars heal, but it’s the emotional mental and spiritual scars that are the deepest and stay the longest,” said Black Elk, the medic. “It’s those mental, emotional, spiritual scars that are the worst. The elders are getting traumatized. The people are not the same.”
North Dakota, Black Elk said, “has declared war on us, and created this war zone.”