The Disturbing Truth About the Charges Against the Standing Rock Protesters

On October 22, Rene Rodriguez was arrested near the Standing Rock reservation in North Dakota, where water protectors were demonstrating against the Dakota Access pipeline. Early that morning, the crowd had walked from the resistance camp to the site, and soon, police surrounded a group that were gathered in prayer. They were all arrested. The remaining water protectors were told that they would also be arrested if they stayed, so Rodriguez tried to leave but was nabbed as he walked away.

He recalls the demonstration being “really low key,” and that the water protectors were not warned to get off private property. Nevertheless, the 120 or so people arrested that day were charged with engaging in a riot and trespassing.

One year after the Standing Rock Sioux Tribe began their legal battle to halt the pipeline, which they argue will threaten their water and damage sacred sites, more than 500 of the 800-some water protectors arrested are still facing charges. Many of these are the result of widespread police sweeps at demonstrations, like on October 22, with scant or no evidence to link most individuals to any crime. In some cases, the name of the arresting officer was never even recorded.

“The whole thing was to keep us from gathering, and to deflect us from getting together and demonstrating”—a First Amendment right, Rodriguez said. And while the cases began going to trial this spring, dozens of them have been dismissed, often just days before going to trial. (The Morton County state attorneys didn’t respond to repeated requests for comment.)

Mass arrests are not unique to the Standing Rock movement; they have also been used against Black Lives Matter marches, and protests against the Iraq War, nearly every Democratic or Republican National Convention and, most recently, the Presidential Inauguration in D.C. (In 2014, the City of New York paid $18 million to settle lawsuits from people who claimed they had been wrongfully arrested at the 2004 Republican National Convention.) But Lawyers at the Water Protector Legal Collective, which is representing some of the defendants and advising many more, describe this emerging pattern of late dismissals as unusual, and an attempt to justify the wrongful arrests and questionable treatment of protesters.

“The prosecution should never have brought these charges. They don’t have probable cause.”

This is precisely what happened to Rodriguez, a Puerto Rican Taino massage therapist from Baltimore, who went to Standing Rock after seeing the Democracy Now! video of the pipeline’s private security forces unleashing dogs on water protectors. He was reminded of similar footage from the sixties, of dogs being unleashed on Civil Rights protesters. Rodriguez had never been part of a protest movement before, but seeing such violence deployed to keep people from “doing anything on their homeland” was “really hard.” He packed his car with donations and drove the 24 hours to Standing Rock.

At the main Oceti Sakowin encampment, Rodriguez immediately got to work: chopping wood, building structures, and helping out in the Paiute camp’s Grandma’s Kitchen, alongside others who had arrived from around the continent to help defend Standing Rock. “I felt like in my 52 years, I never developed more friends and family in my time out here,” he said.

He didn’t know he would later be arrested at the same site where the dogs had been unleashed, or that five days after that, on October 27, 141 more people would be pepper-sprayed, kettled, and arrested by police while gathered on Dakota Access land. (Most were strip-searched, held for 36 hours, and charged by the local courts with public nuisance, engaging in riot and endangering by fire explosion; seven of the indigenous water protectors are also facing federal felony charges that carry a mandatory minimum prison sentence of 15 years).

The police violence continued to escalate. Rodriguez still recalls his last night before returning to Baltimore, when a 21-year-old activist, Sophia Wilansky, nearly lost her arm to a concussion grenade, and around 300 others were reportedly injured from water cannons deployed in sub-zero temperatures. He left with a sense of uneasiness.

Rodriguez’s court dates were initially scheduled for January, but before they were canceled (just two weeks in advance), a massage client bought him a plane ticket in solidarity, and Rodriguez arranged to take the time off. He decided not to waste the gift and visited the encampment. By the time he arrived, he was less worried about his legal case than the safety of the remaining water protectors.

“They had more arms, they looked more tactical, they had more equipment, and it seemed more like the goal was the removal of the camp no matter what,” Rodriguez said of the police and private security forces. “My fear was that they were going to get more violent and just start shooting people.”

By the time his trial date was finally scheduled for June (this time only a week and a half in advance), it was too late for him to buy a plane ticket at a reasonable price. Rodriguez left Baltimore the day before Father’s Day, embarking once again on the 24-hour drive and sleeping for two nights in his car. He arrived in Bismarck, and then his charges were dropped the day before his trial, along with those of five of his co-defendants. He was relieved. But had this last-minute ordeal really been necessary, when it should’ve been clear from the beginning that his charges were baseless? “I could’ve been spending Father’s Day with my son,” he said.

North Dakota is so swamped with cases from Standing Rock that, in January, the state Supreme Court ruled it an “emergency affecting the legal system of North Dakota.” While lawyers from the Water Protector Legal Collective acknowledge this fact, they also view the pattern of last-minute dismissals as an attempt to extract plea deals from defendants (the guilty pleas could justify the mass arrests), and to intimidate future would-be protesters into staying home.

“This is nothing new for indigenous people, the way we were treated by the officers.”

The cases also create “hardship for a lot of the water protectors who have to incur travel,” for “charges that never should’ve been brought in the first place,” said Andrea Carter, one of the lawyers. Her colleague Samuel Saylor added that the practice is unethical, unprofessional, and potentially unlawful, disregarding the Fifth Amendment right to due process, by placing undue burdens on defendants (Rodriguez is one of his clients). Saylor also said that, in a few cases where charges have been dropped, the prosecutor has also filed new charges for the same incident without informing the defendant, then automatically issuing warrants for their arrest. This means that, for those whose cases have been dismissed, the legal ordeal may not yet be over.

And the lawyers emphasized that, before the mass arrests were carried out, the local media were already portraying the water protectors as terrorists, possibly encouraging local police to act more harshly and shaping the opinions of potential jurors. This certainly seemed to be the case with private security contractors working on behalf of DAPL, like TigerSwan: Documents leaked to the Intercept show that they deployed counter-terrorism measures against the water protectors.

But despite the hundreds of rioting charges attached to the arrests, Carter argues that the state has not even established that riots occurred, or that any violent actions were not carried out by police or private security acting as infiltrators. “Can you just charge everyone in a generalizable group who is peaceful with the actions and conduct of one or two people who might’ve thrown a rock or a bottle?” she asked. “The prosecution should never have brought these charges. They don’t have probable cause.”

Nevertheless, Myron Dewey felt noticeably lighter when his charges were dropped on July 9, three days before his trial (he had traveled to Bismarck from his home in Nevada, 21 hours away, to appear in court). The Walker River Paiute drone journalist is known for his livestream footage of police and security at Standing Rock, often recorded from his much-shot-at drone. During the life of the encampment, the stocky and wide-faced Dewey says he was pulled over so frequently that he lost count, and he began recording his encounters with officers for his own protection.

Before long, this grew into a mission to dismantle the local media’s negative portrayals of the water protectors and, joined by a small battalion of other indigenous drone journalists, to craft a counter-narrative of the movement. Dewey documented his encounters with officers, and their increasingly militarized response.

He riffed on events of the day, staring solemnly into the camera, and streamed footage of pipeline construction being carried out. On October 8, he launched his drone toward a 20-mile buffer zone instituted by a court injunction, which he believed DAPL was violating, and the wife of a National Guard member accused him of stalking. Dewey was charged.

“This is nothing new for indigenous people, the way we were treated by the officers,” he said, recalling the time they tailed him through the entire reservation. (“Hello, Myron,” he remembers them saying on a few occasions after pulling him over.) He also recounts with pride his recent livestream interview with Kyle Thompson, the infamous contractor employed by Leighton Security Services, who first attempted to infiltrate the encampment, then pointed a loaded AR-15 at water protectors after his truck was run off the road. (Brennon Nestacio, the Pueblo water protector who talked him down and convinced him to hand over his clip, was charged with “felony terrorizing” over the incident but recently had this charge dismissed.)

“The way things were portrayed to me, with the propaganda and everything—that really heightened my sense of how dangerous things could be,” said Thompson in the livestream, of his behavior that day. And countering this propaganda was exactly why Dewey was so devoted to his work—and so enamored with his drone. Yet, he noted to me, “Thompson got off completely scot free.” Thompson was arrested, but never charged.

“I feel a lot better, but I feel guilty that I feel better too, because I know that many more people, hundreds more people, are still going through this,” Dewey said of his own case being dismissed. Still, the emotional effects will continue to linger. “I had all this anxiety from all I had witnessed,” he said, describing being approached recently by an officer in Wyoming. “It just hit me all of a sudden. I couldn’t find my ID or my registration.” He started stuttering. He was having a panic attack. Then he realized what was happening, explained himself to the officer and calmed himself down. He and other water protectors have spoken publicly about experiencing PTSD from being constantly harassed.

But one year after it began, Dewey also thinks back wistfully upon the movement at Standing Rock. “The unity, the love, the passion for people who didn’t even know each other—that was the most beautiful part,” he said. “It was such hardship. But it was also very special.”