Standing Rock Felony Defendants Take Plea Deals, Still Face Years in Prison

Joseph Bullington

October 27, 2016—A water protector roadblock on County Road 134, north of the Standing Rock Indian Reservation, attempts to slow law enforcement’s advance and prevent them from flanking the front line camp.

In recent weeks, three Native Amer­i­can water pro­tec­tors, each fac­ing mul­ti­ple fed­er­al felony charges and over a decade in prison, have accept­ed non-coop­er­at­ing plea agree­ments rather than stand tri­al in North Dakota.

Red Fawn Fal­lis, Michael Rat­tler” Markus, and Michael Lit­tle Feath­er” Giron are among the six peo­ple indict­ed for fed­er­al felonies — the harsh­est charges so far filed against par­tic­i­pants in the month­s­long strug­gle to stop the Dako­ta Access Pipeline (DAPL) from cross­ing the Mis­souri Riv­er just north of the Stand­ing Rock Lakota’s reser­va­tion in North Dakota.

All the fed­er­al felony charges stem from Octo­ber 27, 2016 — a day that would turn out to be deci­sive in the bat­tle over the pipeline.

In late Octo­ber, as pipeline con­struc­tion approached the Mis­souri Riv­er from the west, many pipeline oppo­nents moved a mile north from the main Oceti Sakowin and Sacred Stone camps to a front line camp built direct­ly in the pipeline’s path. There, they erect­ed teepees and tents and pre­pared to dig in for the winter.

The camp was sit­ed on land known these days as the Can­non­ball Ranch, which Ener­gy Trans­fer Part­ners, the com­pa­ny behind the DAPL, had pur­chased in Sep­tem­ber 2016. As the water pro­tec­tors point­ed out, how­ev­er, the land had been reserved for the Lako­ta under the 1851 and 1868 Fort Laramie treaties.

In the 1860s, the Lako­ta, led by the Oglala chief Red Cloud, fought a bit­ter war to stop white set­tlers from mov­ing through their land. In 1868 the U.S. gov­ern­ment capit­u­lat­ed and agreed to remove the forts along the Boze­man Trail. Only then did Red Cloud ride into Fort Laramie and sign the 1868 treaty, which closed the trail to white set­tlers and estab­lished the Great Sioux Reser­va­tion, a vast tract of land that com­prised the entire west­ern half of present-day South Dako­ta. The treaty also defined a mas­sive unced­ed Indi­an Ter­ri­to­ry,” which no white per­son … shall be per­mit­ted to set­tle upon” or with­out the con­sent of the Indi­ans … to pass through….” The unced­ed ter­ri­to­ry con­tained large swaths of present-day Nebras­ka, Wyoming, Mon­tana and North Dako­ta — includ­ing the land south of the Heart Riv­er and north of the Can­non­ball Riv­er where, in Octo­ber 2016, the water pro­tec­tors were camped in the path of the DAPL.

A pin­cer of police clos­es in on the water pro­tec­tor camp built on unced­ed Indi­an land and in the path of the Dako­ta Access Pipeline on Octo­ber 27, 2016. (Image: Law Enforce­ment Pho­to / The Intercept)”

At around noon on Octo­ber 27, a hun­dreds-strong mil­i­ta­rized police force approached the camp along High­way 1806 with plans to evict the Lako­ta and their allies — for tres­pass­ing. The force was heav­i­ly armored and armed with batons, bean­bag shot­guns, pep­per spray and assault rifles, and sup­port­ed by mil­i­tary humvees, snipers, APCs (Armored Per­son­nel Car­ri­ers) mount­ed with LRADs (Long Range Acoustic Devices), and a sur­veil­lance heli­copter. To the west, Dako­ta Access con­struc­tion equip­ment and per­son­nel could be seen at work on the pipeline route, ready to move on toward the riv­er once police cleared the camp.

As they moved south along the high­way toward the camp, the police encoun­tered an obsta­cle: pipeline oppo­nents had con­struct­ed a road­block from logs, tires, pal­lets, and dis­abled vehi­cles. As police advanced, blar­ing the LRAD, the bar­ri­cades were set on fire. Miles away to the west, police trav­el­ling on Coun­ty Road 134 also encoun­tered a water pro­tec­tor road­block. That bar­ri­cade, too, was set ablaze in an attempt to slow the police advance and pre­vent them from flank­ing the 1806 road­block and enter­ing the camp.

By night time, how­ev­er, the police had cleared the camp. They had arrest­ed more than 140 peo­ple and dri­ven the oth­ers south along 1806 as far as Back­wa­ter Bridge. There, using the nar­row bridge as a strate­gic choke­point, they estab­lished a road­block. Secu­ri­ty forces set up a line of flood­lights, razor wire, and sur­veil­lance points that stretched for miles along the pipeline route — a mil­i­ta­rized buffer zone that, for months after­ward, made it near­ly impos­si­ble for water pro­tec­tors to reach the con­struc­tion site.

Law enforce­ment mov­ing into the Oceti Sakowin Treaty Camp with pep­per spray, less-lethal rounds, batons, LRADs, and tasers on Octo­ber 27, 2016. (Source: Uni­corn Riot)

Rat­tler, an Oglala Lako­ta man who grew up on the Pine Ridge Reser­va­tion in South Dako­ta, and Lit­tle Feath­er, a mem­ber of the Coastal Band of the Chu­mash Nation raised in San­ta Bar­bara, Calif., were each charged in Feb­ru­ary 2017 with two fed­er­al felonies — Civ­il Dis­or­der and Use of Fire to Com­mit a Fed­er­al Felony Offence — for their alleged actions to hin­der police from clear­ing the front­line camp on Octo­ber 27.

In exchange for guilty pleas to the Civ­il Dis­or­der charges, the pros­e­cu­tion has agreed to rec­om­mend 3 year sen­tences and drop entire­ly the Use of Fire charges, which car­ry a manda­to­ry min­i­mum penal­ty of 10 years in prison. Rat­tler and Lit­tler Feath­er are sched­uled to be sen­tenced on May 29 and May 30, respec­tive­ly, in Bis­mar­ck, N.D.

Rat­tler and Lit­tle Feath­er decid­ed to take plea deals rather than stand tri­al in part because they faced a hos­tile jury pool, accord­ing to press state­ments from the Water Pro­tec­tor Legal Col­lec­tive. A study com­mis­sioned by the defense found that 77 per­cent of poten­tial jurors in Mor­ton Coun­ty and 85 per­cent in Burleigh Coun­ty had already decid­ed that the defen­dants were guilty and that many have con­nec­tions to law enforce­ment and the oil indus­try. This study was sub­mit­ted to the court to sup­port Lit­tle Feather’s motion for a change of venue, but the court denied the motion.

Of the six fed­er­al felony defen­dants, Red Fawn, an Oglala Lako­ta woman from Den­ver, faces the most seri­ous charges. In Jan­u­ary 2017, a fed­er­al grand jury indict­ed her on three counts: Civ­il Dis­or­der, Dis­charge of a Firearm in Rela­tion to a Felony Crime of Vio­lence, and Pos­ses­sion of a Firearm by a Con­vict­ed Felon — charges that car­ry a min­i­mum sen­tence of 10 years and the pos­si­bil­i­ty of life in prison. The arrest affi­davit alleges that as secu­ri­ty forces pushed water pro­tec­tors south along 1806 on Octo­ber 27, police took Fal­lis to the ground” to arrest her for being an insti­ga­tor and act­ing dis­or­der­ly.” The affi­davit alleges that, while pinned face-down beneath the arrest­ing offi­cers, Red Fawn fired a gun into the dirt (the affi­davit says the gun went off twice, but video of the inci­dent appears to show three shots fired), injur­ing no one, and that police then wrest­ed from her hand a Ruger .38 Spe­cial revolver. That gun, it turns out, belonged not to Red Fawn but to her boyfriend, Heath Har­mon — a paid FBI infiltra­tor.

In exchange for a plea of guilty to Civ­il Dis­or­der and ille­gal firearm pos­ses­sion, the pros­e­cu­tion has agreed to rec­om­mend sev­en years in prison and drop the most seri­ous Dis­charge of a Firearm charge. Red Fawn is sched­uled to be sen­tenced on May 31, in Bismarck.

In a Decem­ber 2017 motion, the defense asked Judge Daniel Hov­land of the North Dako­ta Dis­trict Court to com­pel gov­ern­ment pros­e­cu­tors to turn over all infor­ma­tion rel­e­vant to the government’s use of a paid FBI infor­mant who infil­trat­ed the Water Pro­tec­tor camps” and any oth­er infor­mants used by police or pri­vate secu­ri­ty con­trac­tors. The gov­ern­ment respond­ed that it had turned over what it had about the FBI infor­mant in the dis­cov­ery exchange of May 5, 2017. They also con­firmed that they planned to call the infor­mant as a wit­ness against Red Fawn and that he would be paid a $40 per day wit­ness fee. Judge Hov­land ruled in favor of the pros­e­cu­tion: The Defendant’s dis­plea­sure in the sparse sum­maries’ con­tained in the pre­vi­ous­ly-dis­closed dis­cov­ery respons­es, and her spec­u­la­tion that more detailed reports’ must exist is not sufficient.”

The defense also argued that the pros­e­cu­tion was required to turn over any evi­dence that the vio­lent acts on which the Civ­il Dis­or­der charges were pred­i­cat­ed were influ­enced, encour­aged, facil­i­tat­ed, or oth­er­wise pro­mot­ed” by peo­ple employed by fed­er­al, state or local law enforce­ment or by pri­vate secu­ri­ty agents. The pros­e­cu­tion respond­ed that none of the law enforce­ment agen­cies it con­tact­ed had any such evi­dence. They argued, how­ev­er, that they were not com­pelled to search the records of the pri­vate secu­ri­ty firms that col­lab­o­rat­ed close­ly with police dur­ing the DAPL protests, and Judge Hov­land agreed.

In a press release explain­ing Red Fawn’s deci­sion to take a plea deal, the WPLC wrote that “[r]ulings against Red Fawn at every step of pro­ceed­ings have left the defense with insuf­fi­cient infor­ma­tion about the paid FBI infor­mant who became her boyfriend and who plans to tes­ti­fy against her at tri­al.” Fur­ther, the state­ment reads, The gov­ern­ment has refused to pro­vide full dis­clo­sure of even poten­tial­ly excul­pa­to­ry sur­veil­lance and oth­er records in the pos­ses­sion of Tiger­Swan and oth­er pri­vate secu­ri­ty firms who coor­di­nat­ed with law enforce­ment dur­ing the encamp­ments at Stand­ing Rock and had tar­get­ed Red Fawn as a leader.”

The Dis­trict of North Dako­ta office of U.S. Attor­ney Christo­pher Myer, who is pros­e­cut­ing the Red Fawn case, declined to com­ment for this story.

Three oth­er indige­nous water pro­tec­tors—Dion Ortiz, Bren­nan Bra­vo One” Nasta­cio, and James Angry Bird” White—still face fed­er­al felony charges of Civ­il Dis­or­der and Use of Fire to Com­mit a Fed­er­al Felony Offense. If they do not take plea deals, they will face tri­al in the com­ing months. In addi­tion to the fed­er­al felony cas­es, 832 peo­ple were arrest­ed and charged in North Dako­ta state crim­i­nal court dur­ing the 11-month strug­gle against the DAPL. Of those cas­es, 332 have so far been dis­missed or acquit­ted at tri­al, and 314 are on-going. 

Joseph Bulling­ton grew up in the Smith Riv­er water­shed near White Sul­phur Springs, Mon­tana. He lives now in Liv­ingston, where he works as an inde­pen­dent jour­nal­ist, part-time ranch hand and the edi­tor of Rur­al Amer­i­ca In These Times.
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