A few weeks back, heavily armed and outfitted police took the final steps in clearing out the camp which has housed Dakota Access Pipeline (DAPL) protesters for over a year; carrying out a raid removing the last of the peaceful protesters from a burnt down camp
The protest has, from start to finish, been totally peaceful on the part of demonstrators, however the final raid is just one of many intense and heavily armed encounters between the protesters and police or DAPL security personnel. While in the immediate wake of the raid many thought the police themselves burnt down the camps, it has surfaced that the reality of the situation is that the demonstrators themselves held a ceremony in which they burned down their tents in order to not see them destroyed by others.
North Dakota Gov. Doug Burgum had set a final date by which all protesters needed to leave the camp or face arrest. Those who left prior to this cutoff date were told that they would not face arrest and would be provided with vouchers for buses and lodgings away from the camp. While the camp had once housed as many as 10,000 people, when the Gov. set his cutoff date only that number had substantially diminished. The majority of the remaining protesters had left the camp after the ceremonial fires the day of the cutoff, marching out arm in arm. When the raid began, counts left those remaining between forty and a hundred demonstrators. The police moved in on these remaining few the day after the cutoff, February 23rd, and arrested dozens of people with at least one recorded arrest appearing to seriously injure a peaceful protester.
This raid has come less than a month after President Trump’s executive order reversing an Obama administration order to stop construction on the pipeline. The Standing Rock Sioux had long argued that the pipeline violated their treaty rights by failing to properly consult them as to the construction of the DAPL through their ancestral lands–lands they had the right to protect under both previous court rulings and treaties between the tribe and the government. They argued that the environmental impact of the pipeline would render much of the drinking water their tribe uses undrinkable. There is some serious evidence to support their concerns, the original plan for the pipeline was changed to this new location through their lands after fears of pollution made the pipeline shift away from a populated city. Just last December, there was big oil spill right by where the Standing Rock camp used to be with about 130,00 gallons of crude spilling into Ash Coulee Creek and yet more seeping into the surrounding hills to potentially contaminate ground water. An investigation was unable to provide a reason why the spill occurred so no further action has been taken.
It was because of dangers like these that the Obama administration halted the construction for a much more thorough review of the potential environmental impact of the pipeline. Trump’s order substantially truncated that review and ordered his agencies to approve the pipeline as quickly as possible. So with Trump’s order and the camp burned to the ground, it is easy to look at the DAPL protests as a finished battle. However, while the camp the protesters stayed at might lay empty the struggle of the DAPL still has a number of battles still ongoing in the courts.
The Ongoing Legal Battles of the DAPL Protesters
First and foremost, the order of the Trump administration pushing through the DAPL is itself facing legal challenges from organizations supporting the DAPL protestors. This action seeks to enforce the treaty rights discussed above and argues that the truncated approval process continues to violate these treaty rights. This lawsuit will be the forefront of the efforts to halt work on the DAPL. However, it is far from the only ongoing legal battle stemming from the DAPL and the actions of the government.
Lawsuits have also cropped up, some months back over excessive force on the part of the police and DAPL security in how they’ve dealt with otherwise peaceful protesters. Most have seen the videos of high-power hoses, dogs, and pepper spray used on non-resisting protesters. As mentioned above, the most recent raid resulted in what appeared to be a serious hip injury to a protestor. These ongoing lawsuits are based in a claim of excessive force, a cause of action which generally requires the plaintiff to show that the police used more force than was reasonably necessary. A determination of how much force is necessary looks to many factors, such as the amount of force used, whether the force was used against an armed suspect, and whether the suspect was subdued prior to using the force. Another element commonly looked to in these cases is whether the force was in line with police procedures for use of force. Where it is, it can be very difficult to succeed in such a case.
The force used by police and DAPL security is often well documented through video evidence. However, these type of cases hinge on the unreasonableness of the amount of force. This can be very tricky to prove in court. What’s more, while many criticize the arrests as a violation of the First Amendment right to assemble the legal reality is that, while the arrests certainly appear to use much more force than necessary for peaceful protestors, the right to assemble is not without some exceptions. The government can put neutral restrictions (restrictions not targeting a specific group or viewpoint) on the time, place, and manner of assembly. This often takes the form of permitting for protests. Refusing to grant such a permit may be a violation of the right of free assembly, however the right does not grant as much protection to these unpermitted protesters as many seem to believe–regardless of how good their cause may be.
Finally, there are also lawsuits challenging the police use of warrants to seize and search the Facebook accounts of DAPL protest organizers. These lawsuits hinge on the warrants violating constitutional protections by being too broad as to be permissible and chilling political speech.
Unforeseen Consequences of the Protests
While the legal battles in the court rages on, the protests will also have a lasting effect due to lawmakers around the country. In an unfortunate turn of events the DAPL protests, along with the increasing number of protests around the country, have led to laws being passed making it harder to protest.
Just recently, we discussed a proposed Arizona law which would have allowed police to arrest peaceful protestors before any crimes were actually committed, target organizers specifically, and seize assets of those who had not even yet attended a protest. Fortunately, this bill has since been discarded, but it is far from alone. Ten different states have proposed legislation expanding the definition of protesting, making more elements of protesting illegal, and enforcing harsher punishments against protesters. In North Dakota, where the DAPL protesters are based, bills have been passed making it illegal for a protestor to wear a mask (even to protect the face from the elements or pepper spray) and changing rioting from a misdemeanor to a serious felony carrying a penalty of a $20,000 fine and 10 years in prison.
There is very little more American than political protest, we owe the very seeds of our nation to it. However, we unfortunately also owe our nation to lands taken unfairly from Native Americans. This has led to the many court cases supporting the treaty rights and land rights of tribes such as the Standing Rock Sioux. It is sad to see the response to their protests be so violent and end in flames. They have many legal battles ahead of them, some with a better chance for success than others. Hopefully, the results of these legal battles will be the ultimate legacy of the DAPL protests and not a perverse response to criminalize the very thing our country was founded on–political resistance.