U.S. Wants to Imprison These Six Water Protectors*
These cases likely mark the first time that United States authorities have pursued felonies against individuals involved in demonstrations against fossil fuel infrastructure
By Will Parish
An elderly woman is escorted to a transport van after being arrested by law enforcement at the Oceti Sakowin camp as part of the final sweep of the Dakota Access pipeline protesters in Morton County, Feb. 23, 2017, near Cannon Ball, N.D. (Mike McCleary/The Bismarck Tribune)
In February, a federal grand jury issued indictments of four Standing Rock water protectors on charges of Federal Civil Disorder and Use of Fire to Commit a Federal Crime.
The federal investigators accused the four men—James White, Brennan Nastacio, Dion Ortiz, and Brandon Miller-Castillo—of involvement in setting three highway barricades on fire, which obstructed police during a highly-militarized October 27 raid of the “Front Line Camp” just north of the Standing Rock Sioux reservation.
Another water protector, Michael Markus, was indicted on identical charges on January 24, and his case has been combined with those of the other four men. Prosecutors are also pursuing three federal felonies against a 38-year-old Oglala Sioux woman named Red Fawn Fallis. They accuse her of firing a gun during her arrest, even as multiple police officers had her pinned face-down on the ground. Fallis’ arrest also occurred on October 27.
These cases likely mark the first time that United States authorities have pursued felonies against individuals involved in demonstrations against fossil fuel infrastructure.
All six people facing the charges are indigenous. Under sentencing guidelines, Red Fawn Fallis faces 25 years or more in prison. The other federal defendants—Markus, White, Nastacio, Ortiz, and Miller-Castillo—face up to fifteen years.
Starting in August of last year, indigenous people and their allies devoted months to attempting to block the construction of the 1,172-mile Dakota Access Pipeline, which runs through four Midwestern states near North Dakota’s Standing Rock Sioux reservation and underneath their main water source, Lake Oahe.
The project sparked opposition in communities spanning the pipeline route, including in Iowa and Illinois. In North Dakota, police carried out over 700 arrests. State prosecutors have since brought felony charges against more than 100 people.
But the federal cases are arguably more serious, since they entail prosecutions by some of the U.S. government’s most elite attorneys and may result in lengthy prison sentences. The cases are also likely to exert a chilling effect on indigenous-led resistance to resource extraction and fossil fuel infrastructure.
In fact, in each case, the U.S. Attorneys for the District of North Dakota filed a most unusual charge: federal civil disorder.
“Nobody I’ve worked with previously has ever seen that charge,” the Water Protector Legal Collective’s Sandra Freeman, an attorney for Michael Markus, said in an interview.
“It comes from a law that is usually only invoked when the federal government decides to prosecute people involved in resistance.”
The National Lawyers Guild’s Bruce Ellison, the lead attorney for Red Fawn Fallis, agrees. He says he has only encountered federal civil disorder charges “a few times” before, including during federal prosecutions of American Indian Movement (AIM) activists who reclaimed Wounded Knee as part of an armed stand-off with federal and local police on the Pine Ridge Reservation in 1973.
Ellison is a long-time attorney for AIM political prisoner Leonard Peltier.
Records obtained via an open records request indicate high-level operatives within the U.S. domestic security state were involved in coordinating the enormous law enforcement mobilization against Standing Rock “water protectors” from last summer through early March of this year.
These records, which will be the subject of future stories, show officers from numerous federal agencies—the FBI, Bureau of Indian Affairs, U.S. Marshal’s Service, and the U.S. Attorney’s Office for North Dakota—coordinated with state and local police as part of an inter-agency “intelligence group” that monitored Standing Rock protests in real-time, with a focus on ferreting out “instigators” and “leaders of the movement.”
Among those who helped orchestrate this multi-agency intelligence effort was National Security Intelligence Specialist Terry W. Van Horn of the U.S. Attorney’s Office—the same entity now prosecuting Fallis, Markus, White, Nastacio, Ortiz, and Miller-Castillo.
The intelligence-gathering operation in which Van Horn participated appears to have been coordinated by the State and Local Intelligence Center, one of numerous law enforcement “fusion” centers set up by the U.S. Department of Homeland Security in the wake of the September 11th attacks on the Pentagon and the World Trade Center.
Supporters of the six federal defendants, as well as others facing possible prison and jail sentence, say that their court cases are a major front in the struggle for indigenous self-determination and against resource extraction.
“The government is looking at how to deal with calls for indigenous self-determination and resistance to resource extraction nationally, and the people facing these charges could become symbols of their ability to carry out that repression,” Ellison contends.
The October 27 Raid on Front Line Camp
Dakota Access pipeline protesters face off with police who are trying to force them from a camp on land in the path of pipeline construction on Thursday, Oct. 27, 2016, near Cannon Ball, N.D.
The six federal prosecutions all stem from a highly-militarized October 27 raid of the “Front Line Camp,” or “1851 Treaty Camp,” which occupied some of the last remaining ground in the pipeline’s construction.
The camp was located on unceded Dakota territory, which was affirmed in the 1851 Ft. Laramie Treaty to be part of the Standing Rock Reservation. It was later stripped away under an 1889 statute from Congress.
Over 300 police officers—some carrying M16 rifles and clad in flak vests—advanced down North Dakota Highway 1806 toward Oceti Sakowin camp, the main nerve center of the water protectors’ resistance to the pipeline.
The police were flanked by a MaxxPro Mine-Resistant Ambush Protected vehicle (MRAP) designed to withstand bombing attacks in Iraq and Afghanistan. A Long-Range Acoustic Device (LRAD), an extremely loud device used for crowd control, was mounted atop the MRAP. Snipers occupied positions on surrounding hills.
In the course of the raid, the police fired tear gas and concussion grenades and peppered the water protectors with rubber-tipped bullets and bean bag pellets, causing dozens of injuries.
Watch footage from the October 27th raid:
Four officers broke from the line to tackle and arrest Red Fawn Fallis, a Denver resident and lifelong member of the Colorado chapter of the American Indian Movement, whose family hails from the Oglala Sioux reservation at Pine Ridge in South Dakota.
As Fallis struggled under the weight of her arresting officers, at least two gunshots went off alongside her. According to an affidavit filed by the Pennington County Sheriff’s Department in North Dakota, a deputy “saw a gun in Fallis’ left hand and wrestled it away from her.”
Native American activist Red Fawn Fallis.
The Pennington County Sheriff’s Department claims Fallis was arrested for “being an instigator” and “acting disorderly.”
According to attorneys for protesters, “instigator” and “camp leader” have emerged as keywords in both state and federal prosecutions.
Fallis was initially charged with attempted murder, but a state judge removed that charge from the docket, and she is now being accused of three federal felonies. They include “possession of a firearm by a convicted felon” and “discharge of a firearm in relation to a felony crime of violence.”
According to numerous accounts, Fallis was a widely-respected coordinator at the Sacred Stone Camp, another major gathering place for prayerful opposition to the pipeline, and had played an instrumental role in the movement as a whole.
“Red Fawn was the kind of person who was down to help with anything at any time,” says one camp participant who asked not to be identified.
“She was integral to the camp.”
Many water protectors and members of Fallis’s family have organized a support campaign for her. They stridently maintain her innocence.
Glenn Morris, a leader of the Colorado chapter of the American Indian Movement, released a statement on behalf of Fallis’s family this past November, saying she is “an intelligent, informed and determined Oglala Lakota woman, who has defended the rights of native peoples and nations, in multiple circumstances.”
Water Protector Facing Federal Felony Charges for Disarming DAPL Contractor
Brennan Nastacio has became a hero to water protectors for his role in disarming a DAPL security guard security guard, Kyle Thompson, who had entered Oceti Sakowin camp wielding an AR-15. (Photo: YouTube Screenshot)
One of the other people facing federal felony charges, Brennan Nastacio, became a hero to water protectors for his dramatic role in disarming a DAPL security worker, who had entered Oceti Sakowin camp—a base of prayer and opposition to DAPL—wielding an AR-15.
The security guard, Kyle Thompson, drove into the camp and claimed to be a water protector, according to a camp security guard. He had a long-nosed semi-automatic rifle and a 30-round clip seated in the passenger seat of his truck.
Nastacio spent nearly a half hour pleading with Thompson to abandon the weapon while also calming other “water protectors,” who were clamouring around him. Thompson, who works for Texas-based Leighton Security, finally handed the gun over to Bureau of Indian Affairs officers, who arrested him. Soon after, Thompson’s truck was driven to a barricade and set on fire.
North Dakota prosecutors declined to charge Thompson instead charging Nastacio with felony terrorizing of Thompson because he briefly walked toward him with a hunting knife during the incident.
In a January YouTube video, Nastacio noted his goal was “the protection of everybody at the camp,” and that he was concerned Thompson himself would be shot by the police. Thompson claims he came to the camp to investigate vandalism to a DAPL vehicle.
Ironically, on the same day as Nastacio helped disarm the Dakota Access security worker, a security firm hired by Dakota Access collected the aerial surveillance photos that now form a major basis for federal prosecution of him, as well as of Miller-Castillo, Ortiz, Markus, and White, court records show. (*Note: This public-private “fusion” model of law enforcement that played out at Standing Rock will be the subject of future stories.)
Ellison, Fallis’s attorney, is attempting to introduce evidence that demonstrates the dubious role the FBI has played in the charges against Fallis.
Terry VanHorn of the U.S. Attorney’s Office did not respond to a request for comment.
The Role of the FBI in Suppressing Opposition to the Pipeline
In this image provided by Morton County Sheriff’s Department, law enforcement and protesters clash near the site of the Dakota Access pipeline on Sunday, Nov. 20, 2016, in Cannon Ball, N.D. (Morton County Sheriff’s Department via AP)
Police in North Dakota went to enormous lengths to portray many anti-DAPL protesters as violent criminals for their role in the protests.
More recently, the allegations against Fallis, Nastacio, Markus, White, Ortiz, and Miller-Castillo have become fodder for domestic security agency warnings about potentially violent threat posed by protests against other fossil fuel infrastructure.
A Department of Homeland Security report, published by the conservative Washington Examiner on April 18, spells out the possibility that “environmental rights extremists” and “anti-government militia” may muster up attacks on the in-construction Diamond Pipeline extending from Oklahoma to Tennessee.
The report states that “[p]rotests surrounding the DAPL have resulted in the arrest of hundreds of individuals for allegedly committing criminal acts,” and that
“[o]ne individual was charged with attempted murder for allegedly discharging a firearm at officers during removal efforts.”
But water protectors and their advocates point out that the real criminals at Standing Rock were the police and the oil companies’ private security firms, who consistently used violent repression to sabotage constitutionally-protected political activity.
Meanwhile, the federal government has failed to hold the police accountable for a single act of violence.
On a single night in November, the police injured more than 300 unarmed and generally highly-restrained protesters by spraying water on them amid freezing temperatures and firing rubber bullets and concussion grenades.
A police officer struck 21-year-old Sophia Wilansky with a concussion grenade that nearly severed her forearm. A fellow water protector named Steve Martinez drove her to the hospital, where she underwent emergency surgeries in an effort to save her arm.
On the day after Wilansky nearly lost her arm, seven FBI agents—including two clad in Joint Terrorism Task Force jackets—came to her hospital room and collected articles of clothing and shrapnel freshly dislodged from her arm. They also subpoenaed hospital visitor logs and videos of her room.
The JTTF visit “created a chilling atmosphere where anyone who’s a protester is under suspicion of being a terrorist,” Sophia Wilansky’s father, Wayne Wilansky, says.
The same grand jury that has indicted Fallis, Markus, Nastacio, White, Ortiz, and Miller-Castillo on felony charges subpoenaed Steve Martinez soon afterward. The subpoena implied that a federal investigation of the extremely far-fetched claim that Wilansky’s injury was caused by an improvised explosive was underway, and that Martinez was a subject of that investigation simply because he had driven Wilansky to seek medical attention.
It ordered Martinez to produce, among other things, “photos and SD cards; written statements; and any other information in [his] possession.”
Martinez appeared before the grand jury on January 4th and was asked a single question: “When did you arrive in North Dakota?” He immediately invoked the Fifth Amendment and refused to testify.
In a written statement, Martinez, who is partly of Pueblo and Apache ancestry, called the grand jury “a fishing expedition to find out information about the water protector movement, and organizations and people related to it,” and asserted that “to comply with this subpoena would violate my spiritual duty to protect my loved ones.”
Martinez was expected to begin a jail sentence for contempt of court on March 1, but in late February, the U.S. Attorney’s office unexpectedly withdrew its subpoena of him, meaning he’s free for now. About 20 supporters nevertheless gathered in front of the courthouse on March 1 holding up banners with slogans, such as “The Frontlines Are in the Courtroom.”
The Water Protector Legal Collective, the Freshet Collective, and other volunteer-driven collectives have provided legal support and advice for the water protectors now slogging through various court cases.
Notwithstanding the temporary victory in Steve Martinez’ case, members of the collectives say they intend to continue support for those whose sacrifices made the water protector movement possible in their various courtroom-related struggles.
The History of the Federal Civil Disorder Charge
At a rally outside the U.S. Courthouse October 29, 1969, Dr. Benjamin Spock, background, listens to Fred Hampton, chairman of the Illinois Black Panther party. (AP Photo/stf)
The civil disorder statute used against the six federal defendants can be traced to Martin Luther King, Jr.’s assassination in 1968, which spurred Congress to pass the U.S. Civil Rights Act one week after his death.
It was passed in the aftermath of riots across the country in protest against substandard living conditions in segregated Black communities. The best known section of the act is Title VIII, known as the Fair Housing Act, which was designed to end residential segregation and promote racial integration. But a little-remembered section of the bill, Title X, is known as the Civil Obedience Act.
U.S. Senator Russell Long of Louisiana, an avowed segregationist, was the amendment’s main author and offered it as a quid pro quo for his support of the legislation as a whole.
The amendment created stiff penalties for such activities as “interfering with law enforcement officials during the course of civil disorder.”
Long previously offered up the Civil Obedience Act as an amendment to a bill that would have specified punishments for violence against civil rights workers in the Deep South.
Biographer Michael S. Martin recalled in his book, “Russell Long: A Life in Politics,” a speech Long made to the Senate floor, in which he described the pro-civil rights worker legislation as “a bill to aid and abet H. Rap Brown and Stokely Carmichael,” in reference to leaders of the Black Power movement. He also claimed the people the bill supported were “known to stir up hatred and ill will among people of their race and put cities to the torch.”
In response, Long proposed the Civil Obedience Act as a means to “strike the very thing which really concerns the people of this country: the rights and the safety of 200 million Americans whose property and whose very lives have been seriously endangered.”
Nearly a half-century later, the federal government is using this same racially-charged legislation to pursue felony charges against six indigenous people at Standing Rock.
Ellison recalled one of the few previous times he encountered Federal Civil Disorder charges was during prosecutions of AIM activists in the 1970s. He experienced first-hand the murderous FBI-coordinated counter-insurgency campaign against AIM at Pine Ridge, he noted, whereby a paramilitary organization known as the Guardians of the Oglala Nation (GOONs) went on a rampage of beatings and assassinations of AIM leaders and supporters.
Federal prosecutions are viewed as one aspect of an escalating effort by domestic security agencies, police, politicians, and fossil fuel industries to break the spirit of resistance movements nationwide.
The American Civil Liberties Union (ACLU) said more than 30 separate anti-protest bills were introduced since November 8, representing “an unprecedented level of hostility towards protesters in the 21st century.”
“The government is looking at how to deal with protests nationally, and these federal prosecutions are certainly a part of that,” Ellison concluded.
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