Native Americans were the only protesters targeted by federal prosecutors.
By Mark Hand
Anti-Dakota Access Pipeline demonstrators gather outside of the Morton County, North Dakota Courthouse, where their fellow protesters are facing criminal charges. CREDIT: Erin Lefevre/SOPA Images/LightRocket via Getty Images
State and federal prosecutions of Native Americans and their allies who protested the construction of the Dakota Access Pipeline are drawing closer to an end, as two more protesters agreed to plea deals.
After investigations that included a review of photographs and video footage, Native Americans were the only protesters targeted by federal prosecutors. The hundreds of other protesters who were arrested faced charges in North Dakota state court.
Dion Ortiz and James “Angry Bird” White chose to enter plea deals instead of going to trial, and they face the possibility of much harsher punishment for their opposition to the pipeline project. Three other Native American protesters also have entered plea agreements in federal court, and two of them were recently sentenced to lengthy prison terms.
Ortiz on Wednesday agreed to plead guilty to the charge of committing “civil disorder” and in return, the second charge of using “fire to commit a federal felony offense” was dropped. Had he been convicted of that offense, Ortiz would have faced a mandatory minimum sentence of 10 years in prison.
On July 12, Angry Bird entered into a plea agreement in which prosecutors will recommend time served plus 12 months of home confinement for the charge of civil disorder.
Federal prosecutors accused Ortiz and Angry Bird of setting three highway barricades on fire, which obstructed police during a highly-militarized October 27 raid of a camp set up just north of the Standing Rock Sioux reservation.
The Water Protector Legal Collective, a group that has provided legal support for people opposed to the Dakota Access pipeline, hired an expert in late 2016 to poll potential jurors to determine the extent of local bias against the protesters.
The expert found that 77 percent of potential jurors in Morton County, North Dakota and 85 percent in neighboring Burleigh County, North Dakota had already decided the defendants were guilty and that many potential jurors have close connections to law enforcement and the oil industry.
Plea agreements, particularly for Native Americans, can reduce the opportunity for further discrimination in the legal system, Moira Meltzer-Cohen, staff attorney for the Water Protective Legal Collective, said in an email to ThinkProgress.
Meltzer-Cohen said indigenous people should not be expected to trust the federal government. After stealing their land, the government imposed a “colonial system of punishment” that disproportionately impacts them, she said.
“So it is both heinous and unrealistic to expect that anyone of native ancestry will have faith in getting a fair trial against the office of the U.S. Attorney, or a just sentence from a federal judge, when these institutions represent power writ large in an ongoing history of profound and literally genocidal injustice,” she said.
The $3.7 billion Dakota Access Pipeline is now fully built, following President Trump’s January 2017 order to expedite its completion, which reversed President Obama’s block on the project.
The pipeline extends 1,168 miles from North Dakota to Illinois and is capable of transporting 570,000 barrels of crude oil a day from the Bakken oil fields of North Dakota to a distribution hub in Illinois. From there, the oil is transported via separate pipelines to refineries along the Gulf coast.
Prosecutors agreed to recommend up to three years in prison for Ortiz, although the judge has the authority to go as high as five years. Ortiz, a member of the San Felipe Pueblo in New Mexico, is scheduled to be sentenced in federal court in Bismarck, North Dakota on October 22.
Angry Bird, a member of the Standing Rock Sioux Tribe, was prepared to go to trial, but when the prosecutors offered a deal that required no prison time, he decided to accept the plea agreement, said Daphne Silverman, Angry Bird’s defense attorney.
“I made it clear that we were not pleading guilty. We were going to trial,” Silverman said in an interview with ThinkProgress. “But when they call you and say, ‘Will you take house arrest?’ and house arrest in North Dakota is essentially like probation, I had to recommend that to him.”
The Freshet Collective reached out to Silverman, an attorney in Austin, Texas, who specializes in federal criminal cases, to represent Angry Bird. The Freshet Collective has worked on arrestee support for Dakota Access protesters, such paying cash bail and coordinating legal defense.
A specific date for Angry Bird’s sentencing has not been scheduled, but Silverman expects it will occur no sooner than November. If the judge chooses not to accept the plea agreement, Angry Bird would then go on trial for the two charges of committing “civil disorder” and using “fire to commit a federal felony offense,”she said.
“The prosecutor has been very kind and generous in making this offer to us,” Silverman said. “I am very pleased he made us an offer that doesn’t include prison.”
If Angry Bird’s case had gone to trial, Silverman said she would not have sought a change in venue. “I spent time in Bismarck [North Dakota] and I questioned people there. I found the people of North Dakota to be honest, good people who would have judged this case fairly. I believe that they were equally interested in protecting their water and, at the same time, thought there would be some investment for the industry. They would have been prepared to listen to the issues in trial.”
People who may have a slant toward law enforcement or industry often “go overboard” in making sure their views don’t prejudice how they judge a person if they do get to sit on a jury, she added.
Native American protester, Michael “Rattler” Markus is scheduled for sentencing on September 27. Similar to the others facing serious charges, Rattler also accepted a plea deal. He will likely receive a sentence of three years in prison, although the judge has the authority to sentence him to as much as five years at his sentencing next month.
On July 11, Red Fawn Fallis was sentenced to 57 months, to be followed by three years of federal supervision, the longest sentence handed so far to a Dakota Access protester.
The only other protester to receive a lengthy prison sentence is Michael “Little Feather” Giron. In late May, he was sentenced to three years in prison. He had already spent 15 months in jail, time for which he was credited. His lawyers believe he could be released to a halfway house by next spring.