We are now seeing very serious federal charges being filed against Water Protectors in addition to ongoing mass arrests and pending misdemeanor and felony charges in state and tribal courts. Of the 800+ people facing criminal charges, at least 300 do not have counsel. Of the 500 who do have attorneys, some are dissatisfied and asking that we help find new attorneys to take their cases. In an ideal world we could link everyone up with attorneys immediately, but the reality of the numbers means that it is impossible. So we are prioritizing indigenous folks and those who are facing serious felony charges or otherwise identified as being higher risk to be connected with a pro hac vice volunteer attorney first. We also take into account whether and when a trial date has been set.
The factors we consider can be loosely summarized as follows:
- Indigeneity – Is the Water Protector indigenous? Enrolled and where? Non-enrolled? This is an indigenous led and centered movement, and we are committed first and foremost to the defense of indigenous people.
- Type of charges – Felony charges carry much higher risk for active imprisonment than misdemeanor charges
- State or federal jurisdiction – Federal charges and potential sentences/consequences are often much more severe than state charges. We are making sure that the way we match people with attorneys reflects our awareness of that risk.
- Status of counsel – Is the water protector completely without counsel, or does the person have counsel that they are dissatisfied with?
- Trial dates – How soon is the case set to go to trial? Many cases do not yet have trial dates set or have trial dates in the middle of the summer.
- Other risk factors – including immigration status, possibility of higher sentencing guidelines/collateral consequences due to past history, visibility and vulnerability of the Water Protector due to their race, gender, family, tribal, or political affiliations, etc.
What all of this means is that an indigenous Water Protector who is accused of a federal charge carrying potential decades of prison time in a case that is required by the federal rules of criminal procedure to go to trial within 70 days is going to be a greater priority for finding an attorney than a non-indigenous ally facing a maximum sentence of 30 days on a misdemeanor with court-appointed counsel who does not yet have a trial date set.
The options for someone who has just been arrested are as follows:
- Apply for court appointed counsel – some of the court appointed lawyers here are very good, and it is worthwhile to see if someone qualifies and receives one of the incredibly committed and very good court appointed lawyers. We are asking everyone arrested to complete the court appointed attorney application form. (Information about how to do this is here)
- If the Water Protector does receive a court appointed lawyer, we encourage them to meet with that person and then update WPLC on how they feel about working with the person (WPCriminalDefense@protonmail.com or call us at 605-519-8180 ). The Water Protector may very well find that the court appointed counsel is a fantastic and zealous criminal defense attorney who works closely with the legal team.
- If the Water Protector does not receive a court appointed lawyer, the legal team will put them on the list of Water Protectors who do not have attorneys and ask that they keep in mind how the legal team is prioritizing certain folks.
- If the Water Protector receives court appointed counsel but is unhappy or uncomfortable with that attorney, then we will put them on a list to get a new attorney and ask that they keep in mind how the legal team is prioritizing folks.
- Bring in one’s own attorney from out of state through the Water Protector Legal Collective Pro Hac Vice program
- If the Water Protector has an attorney that they know and trust from their home state and who they would like to have defending them in North Dakota, the Water Protector and attorney can contact the WPLC criminal defense team and we will get the attorney started with the process for being admitted to cases pursuant to North Dakota’s special pro hac vice rule for these cases (WPCriminalDefense@protonmail.com).
- Retain an attorney here in North Dakota – there are some very good criminal defense attorneys in North Dakota. Most of them are already overwhelmed and at capacity, but there are a few who are still taking on cases and can be retained. Water Protectors who have the means to do so are free to retain their own attorneys.
Experienced criminal defense attorneys wishing to volunteer their services through our pro hac vice program can find information on how to apply here.
Water Protector Legal Collective (WPLC) provides on-the-ground legal representation and coordination for Water Protectors engaged in resistance to the Dakota Access Pipeline at Standing Rock, ND in partnership with the National Lawyers Guild (NLG). To support this work, please visit https://waterprotectorlegal.org/ways-support-us/. Thank you!