On February 23 of last year, a day when the frozen ground had started to turn to mud, law-enforcement officers rolled into the Oceti Sakowin camp near the Standing Rock Sioux reservation in North Dakota. Donald Trump had been inaugurated a month earlier, and the new president quickly reversed an Obama administration decision to deny Energy Transfer Partners a permit to finish construction of the Dakota Access Pipeline, a $3.78 billion project running directly under the Missouri River. The water protectors, as protesters called themselves, had been fighting the pipeline since the spring of 2016, concerned that the proposed route cut through ancestral land of spiritual significance, and that a pipeline leak could contaminate the primary water supply to the reservation. The small group who had remained through the bitter winter at Oceti Sakowin had been ordered to leave by February 22 or face eviction and arrest. Most did; a few dozen remained the following the day, when Humvees with snipers on their roofs rolled into camp, a helicopter buzzing above them.
Photojournalist Tracie Williams, on assignment for the National Press Photographers’ Association, captured some of what happened next. Officers wearing military fatigues walked through the camp with assault rifles and knives, which they used to slice open the skins of teepees. Rain and fat flakes of snow fell against a backdrop of smoke rising from structures that had been set alight in a ceremonial gesture. Moments after clicking through the last two frames on her memory card—of two men in prayer, weapons aimed at their heads—she was arrested. Williams, who had been documenting life at Oceti Sakowin for three weeks leading up to the raid, told officers she was a journalist—and says she’d previously identified herself as a member of the press to the governor and the Army Corps and let them know that she’d be there, documenting, and obtained a press credential from the Morton County Sheriff—but they confiscated her equipment as evidence and detained her anyway. Williams was later charged with physical obstruction of government function, a Class A misdemeanor that could result in a year in jail and $3,000 in fines. Her trial is scheduled for June.
More than three dozen other people were arrested that day. In total, some 800 people were charged with crimes during the 11 months between the establishment of the first protest camp, known as Sacred Stone, and the eviction of Oceti Sakowin. While several hundred cases have been thrown out for lack of evidence, more than 200 people are still awaiting trial, according to the Water Protecter Legal Collective. Several face felony charges and years in prison. Williams was not the only journalist arrested: others include Jenni Monet, who was on assignment for Indian Country Today and the Center for Investigative reporting, filmmaker Myron Dewey, and Democracy Now!’s Amy Goodman. (Charges against Dewey and Goodman were dropped.) Greenpeace and other environmental groups supportive of the Standing Rock Sioux are themselves facing a lawsuit from Energy Transfer Partners, which alleges that the organization engaged in racketeering.
Standing Rock protesters were also subjected to a wide-ranging surveillance effort underwritten by Energy Transfer Partners. For months, according to reporting by The Intercept, local and federal law enforcement worked alongside a private security firm called TigerSwan, which Energy Transfer Partners hired to collect information about Standing Rock participants and supportive groups. TigerSwan is mostly known as a mercenary and security firm conducting counterterror operations overseas; the company applied its militarized tactics in North Dakota, using aerial surveillance, infiltrating the camps, and referring to the indigenous-led movement as “an ideologically driven insurgency” that “generally followed the jihadist insurgency model.”
An hour after police evicted the last demonstrators from Oceti Sakowin, North Dakota Governor Doug Burgum signed four measures increasing punishments for demonstrators. Among other things, the new laws expanded the definition of criminal trespass, and raised the penalty for a riot conviction. Though the measures were clearly in response to Standing Rock, they also reflected a much broader conservative backlash to direct action—a backlash that resulted in a wave of legislation introduced in states across the United States. Overall, according to the International Center for Not-for-Profit Law, lawmakers in 30 states have introduced 56 bills to restrict public protest since Trump’s election.
“What we saw in the last legislative session was a surprising and unusual surge in anti-protest legislation, which went after those fundamental rights to go outside, speak out, dissent,” said Vera Eidelman, a fellow with the American Civil Liberty Union’s Speech, Privacy, and Technology Project. Though only a few of the bills introduced last year became law, several others are pending. The sheer number of anti-protest bills that have been introduced, along with the heavy-handed policing of demonstrators on the ground, points to a trend towards the criminalization of dissent—spanning from Standing Rock to the 194 people, including journalists, who faced felony charges and up to 70 years in prison for protesting Trump’s election. (In January the Department of Justice dropped charges against more than 100 of the #J20 defendants, but 59 still face trial at the time of publication.)
According to Eidelman, most of the legislation appeared to be written in response to the most successful mass protests in recent years, particularly those implicating oil and gas infrastructure and racial-justice demonstrations that often blocked traffic as a tactic. A bill introduced in Colorado would have tightened penalties for “tampering” with oil and gas equipment. A similar measure signed into law in Oklahoma dramatically increased the penalties for trespassing in areas containing a “critical infrastructure facility”; tampering with such facilities now carries up to a $100,000 fine, or 10 years in prison. The South Dakota legislature passed a measure in March that allows the governor or local sheriffs to ban groups of 20 or more people from public land and schools. Lawmakers in Mississippi proposed a bill to make obstructing traffic a felony punishable by five years in prison and a $10,000 fine. A Republican senator in Oregon introduced a bill requiring public universities and colleges to expel students convicted of rioting. Lawmakers in half a dozen states—North Dakota, North Carolina, Florida, Tennessee, Texas, and Rhode Island—introduced legislation to protect some drivers who “unintentionally” hit protesters with their cars. In Washington State, a Republican state senator who served as Trump’s deputy campaign director recently reintroduced a bill adding a mandatory minimum sentence of 60 days to any crime that “cause[s] economic disruption,” such as blocking traffic or railways.
The practice of tarring activists with the language of the War on Terror has also spread beyond Standing Rock—and it could have legal implications. In late October, 80 Republicans and four Democrats sent a letter to Attorney General Jeff Sessions asking whether demonstrators who target energy infrastructure might be prosecuted as domestic terrorism. The authors argue that interfering with energy infrastructure poses “a threat to human life, and appear[s] to be intended to intimidate and coerce policy changes,” and therefore might be considered terrorism. The letter specifically mentions a series of coordinated actions that occurred October 11, 2016, in which activists in four states were arrested for shutting off valves on pipelines carrying crude oil between Canada and the United States. (Three of those activists have already been convicted on felony charges.)
A report released in May by the Department of Homeland Security’s Office of Intelligence and Analysis on “suspected environmental rights extremists” emphasized the “criminal and violent acts” carried out by pipeline protesters. In a similar vein, the Federal Bureau of Investigation recently issued an internal report warning that “black identity extremists”—a novel term—motivated by racial injustice pose a violent threat to law-enforcement officers. Civil liberties experts worry these labels will be used to justify further surveillance of activists.
“This is a battle for a narrative,” said Standing Rock Sioux member and attorney Chase Iron Eyes, when I asked how he felt about activists’ being referred to as terrorists or “jihadists.” Iron Eyes was arrested during a police raid on another protest camp a few weeks before the eviction of Oceti Sakowin, and charged with a felony for “inciting a riot” as well as criminal trespass. He’s facing five years in prison. Daniel Sheehan, who serves as chief counsel for the Lakota People’s Law Project and is defending Iron Eyes, believes that Iron Eyes was surveilled and selectively prosecuted with felony charges because he was particularly outspoken in his opposition to the pipeline. His name appeared on several intelligence documents prepared by TigerSwan, including one labeling him as one of the “most radical” members of the protest movement.
As the cases against Standing Rock activists proceed through the courts, other conflicts over land and energy development are brewing. Resistance to another ETP-backed pipeline known as Bayou Bridge, which the Army Corps of Engineers approved in December, is growing in Louisiana. Tribes and environmental groups in Minnesota have mobilized against the Line 3 expansion, an Enbridge project slated to become one of the country’s largest crude-oil pipelines. In Washington State, members of the Puyallup Tribe and others are fighting the construction of a liquefied-natural-gas plant close to the waters of Puget Sound. Several tribes have challenged the Trump administration’s decision to shrink Bears Ears National Monument in Utah, which encompasses land of immense historical and spiritual significance to indigenous peoples in the Southwest. Members of Alaska’s Gwich’in Nation, who depend on caribou herds born on the coastal plain of the Arctic National Wildlife Refuge, are advocating against oil and gas drilling in that protected area, which was authorized for the first time by the Republican tax bill that passed in December.
The campaign to stop construction of the Keystone XL pipeline has been revived, too. In November, days after an existing section of the Keystone pipeline spilled over 200,000 gallons of oil onto farmland in South Dakota, Nebraska’s Public Service Commission approved TransCanada’s plan to route KXL through the state, to the east of the company’s preferred pathway. TransCanada has yet to obtain new easements from all of the landowners along the alternate route. Still, a coalition of tribes, green groups, and others have already issued a call to action, asking supporters to “commit to creative peaceful resistance along the pipeline route when called upon by frontline leaders, likely next spring.” Local police departments in Nebraska have been studying the Standing Rock demonstrations in preparation.
All of these conflicts will unfold across a political landscape that is growing more hostile to protest and increasingly deferential to energy interests. The Trump administration’s aggressive promotion of expanded fossil-fuel production means that clashes over infrastructure are likely to spread, and become more fraught with questions about the rights of protesters. In January, the American Legislative Exchange Council, a right-wing policy shop, finalized model legislation inspired by Oklahoma’s new laws cracking down on demonstrations affecting “critical infrastructure” like pipelines. ALEC’s model bill “codifies criminal penalties for a person convicted of willfully trespassing or entering property containing a critical infrastructure facility without permission,” and it “prescribes criminal penalties for organizations conspiring with persons who willfully trespass and/or damage critical infrastructure sites.” Less than a week later Republicans in Iowa and Ohio introduced similar legislation.
Considering the encroachment on dissent and on press freedom, “our roles as journalists—to seek truth and hold those in power accountable—becomes that much more important,” Williams wrote to me recently. “What happened at Standing Rock is indicative of the US government’s historical failures to acknowledge treaties made with Indigenous Nations and the current administration’s complete disregard for public health, the environment, indigenous rights, and civil liberties—in favor of the extractive industries.” Meanwhile, the Dakota Access Pipeline itself has confirmed some of the Standing Rock Sioux’s fears: After becoming fully operation on June 1, the pipeline has already leaked at least five times.
