Courtesy Myron Dewey
One of more than 400 people arrested by militarized police during the standoff against the Dakota Access Pipeline.

New Front Line for NoDAPL Attorneys: Criminal Courts

Steffani Cochran

I recently returned from spending time at Standing Rock as a legal observer. The experience was nothing like I anticipated and yet one of the most important experiences of my life. I woke each morning and went to sleep each night to prayers, songs, stories and drumming. But my day also began and ended with the constant hum of surveillance planes and helicopters circling the camp—taking pictures, as well as intercepting and interfering with communications. I drove through police barricades, past Bureau of Indian Affairs (BIA) command centers and DAPL mercenaries with cameras, guns and who knows what else aimed at me. I prayed each day that the snipers perched in the nearby prairie didn’t determine it was a good day to fire.

None of that deterred me from my purpose—to assist the efforts of the Water Protector Legal Collective (WPLC, formerly the Red Owl Legal Collective), to interact with individuals within the camp and to listen and record the stories of water protectors. None were easy to hear, but all shared a common theme of increased, indiscriminate, and excessive use of militarized force against a Native community and its allies.

These, and subsequent stories, highlight the extent of force and intimidation used: security dog attacks, tear gas and mace, sound cannons and flash-bang grenades, armored vehicles, rubber bullets and snipers. Once arrested, the individuals face strip searches, being kept in pens resembling dog kennels, the ransacking of impounded cars, personal property “lost,” and sacred items destroyed. More recently, the WPLC reports,

“a dumpster-load of seized property was recovered at a Bureau of Indian Affairs checkpoint . . . When protectors returned for their things, they found sacred item after sacred item had been defaced, with apparent intentionality. One item, a bull skull, had its horns snapped clean off.”

All contribute to the ongoing civil, human and religious rights violations endured by the water protectors. The next frontline for some of them will be in courtrooms, first to defend themselves from criminal complaints and then to hold authorities accountable for human and civil rights violations.

That’s where we attorneys come in. Last week I came upon a posting from a former tribal official relaying a request for attorneys to come to Standing Rock. I reached out and we met for lunch to talk about my experience and what the attorneys are responding to.

As we talked about our shared concern for the escalation of violence and aggression perpetrated against the water protectors, the reality sank in that Indian country has few points of reference in the 21st century for mass demonstrations of this scale. How can tribes support the legal needs of the water protectors? What can attorneys within Indian country do to confront the challenges and obstacles people on the ground are up against? While the path is not entirely clear, there are some measures that tribal leadership can take to attract and support legal assistance. The list below can point us in the right direction.

Send up a flare.

One initial step tribes can take is to reach out to in-house counsel, contracted law firms, tribal judiciaries, tribal bar associations, and any other attorneys within their community to find willing and experienced volunteers. With the escalation of force and mass arrests since I left, legal representation, jail support and legal observers are as crucial as ever.

Take stock of available resources already on hand.

In partnership with the National Lawyers Guild (NLG), the WPLC pro bono attorneys and legal workers maintain a regular legal presence in the camp. The NLG is working to identify and place experienced legal observers on the ground. Attorneys should contact the NLG to let them know they are willing to travel to Standing Rock as a legal observer. Even if the attorney is not experienced, but willing to volunteer, he or she should contact the NLG. They and the Civil Liberties Defense Center offer training and other resources for potential legal observers.

Support attorneys willing to serve.

There are several ways a tribe can support an attorney willing to serve as a legal observer:

(1) Authorize time away from the tribe’s legal activities. If the attorney is an employee, this could be simply paid time away, but more important, allowing the attorney to solely focus on their role in providing legal support to the water protectors without worry about work back home.

(2) Provide financial or other resources for the journey. This might include items necessary for their stay, such as a winter tent, travel trailer or hotel room, winter clothing or other winter camping essentials (wood, propane, etc.).

(3) Provide support in case of arrest or detainment. Current police tactics include targeting and arresting legal observers, medics, and journalists. Should that happen, a tribe could provide the necessary support for an attorney’s release.

Donate to legal funds.

Tribes may also provide direct donations for legal support to the Water Protector Legal Collective. The Sacred Stone Legal Defense Fund is also online. Direct contributions can be made via PayPal. This fund is restricted to the direct support of those arrested—bail, fines, court costs, vehicle impoundment, defendant travel, and attorney fees.

Bring in criminal defense attorneys.

With the rising number of arrests and the propensity of officers to charge felony offenses, there is a substantial need for criminal defense attorneys. If attorneys are licensed in North Dakota, or willing to become licensed in North Dakota, they should contact the WPLC to coordinate their services. Tribes can offer support by providing financial or other resources that will allow the attorney to provide criminal representation, including licensing fees where needed, travel, personnel costs, etc.

Make a game plan for responding to future legal challenges.

Finally, how does Indian country respond to the future legal challenges? This includes finding experienced attorneys in the human, civil, cultural and religious rights of Indigenous Peoples and bringing them to the table with others presently involved. Some of this will undoubtedly take form as class-action lawsuits. This is a crucial piece of building that capacity within Indian country. We are going to face future challenges beyond Standing Rock. For those specialists who have devoted their entire career to Indian country, now is the time to step up and add your knowledge and experience to the process. Efforts are now under way to connect Indian country attorneys to the public and environmental interest groups currently assisting the legal needs of the Water Protectors. Reach out to me if you wish to be a part. 

Stay centered, and keep heart.

Our support is greatly needed, and there are things we can and must do from within Indian country. While battles will play out in western courtrooms, the issues are at the heart of who we are as Native people. I encourage attorneys to engage, especially those of us whose livelihood comes from working with and for tribes. The journey will be long, but we have some of the most capable people to rise to this call.

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