Callout for Comments: ND Judges Trying to End Program Allowing Out-of-State Lawyers to Represent Water Protectors

Photo cred: No Spiritual Surrender

The judges from the South Central Judicial District of North Dakota have petitioned the Supreme Court of North Dakota to revoke the Pro Hac program that allows out of state attorneys to represent Water Protectors. This is a huge problem for Water Protectors.

The North Dakota Supreme court is allowing people to comment on the proposal until October 2nd at 4 p.m. by emailing the clerk Penny Miller at [email protected] We would love Water Protectors to write to Penny Miller with a comment opposing revoking this program with their unique perspective. 

 We have identified some major points to make in a comment but feel free to personalize your message based on your experience(s):
  • As of September 11, 2017, there were still 159 cases without representation or any appointed counsel so there is still a need for more attorneys. 
  • Saves taxpayer money by not having to hire local indigent defense
  • Issues around representing indigenous people – this is a specialized area of law, and requires special focus, expertise, cultural awareness, and practice that people from other places have experience in. 
  • The mass arrest and charging issues in these cases are unlike anything local appointed counsel has seen. This has never happened to Morton County before.
  • The Supreme Court originally granted the initial petition in January 2017 fundamentally to ensure adequate access to counsel and to be fair to defendants in these proceedings. These concerns and issues are magnified for indigent and indigenous or racial minority persons, of which, virtually every defendant is one of the two. These concerns still exist. The need for counsel, guaranteed under the 14th amendment, is not fulfilled by the ND Commission on Legal Counsel for Indigents.

WPLC Criminal Defense Attorney:

“There is no need to proactively set firm and arbitrary deadlines by which these rules and this program will end. These relaxed rules allow for Pro Hac Vice attorneys only to represent Water Protectors on DAPL-related charges. When all the DAPL cases have representation and are resolved, these temporary rules will be moot and go away on their own accord and due to a true lack of need at that point. This raises the suspicion that instead this attempt to cut off admission and representation sooner is to alleviate their frustration with the extra burden on the courts and its staff that this unusual boost and block of cases has had, particularly if these cases will not quickly and easily settle but if each will be given a full defense and trial. These judge petitioners, besides Gail Hagerty, remain unknown, and we also find it problematic that this is an indication of bias against defendants in these cases and that these same judges are likely assigned some of the DAPL cases.”


–Thank you for your support!


Supreme Court – To end DAPL pro hac vice attorneys

Andrea Carter
Defense Counsel Coordinator
Water Protector Legal Collective
(701) 566-9108 WPLC office


Elana Gold
Legal Organizer, Water Protector Legal Collective
J.D. 2017 CUNY Law


Jessica Beheler
Media Coordinator
Water Protector Legal Collective

31 thoughts on “Callout for Comments: ND Judges Trying to End Program Allowing Out-of-State Lawyers to Represent Water Protectors

  1. Sandy McClain says:

    it seems to be impossible to find a lawyer in your state that is neither connected to the oil industry or not a racist…… show the world you will be acting fairly, please continue to allow out of state attorneys to help those accused…in most cases falsely or with charges not able to be proved.

  2. Mary McKeon says:

    So why does it matter where the lawyers are from? If people hire a set of lawyers, it is their right as citizens to protect what is their’s and if they choose out of state lawyers, so be it. Stop harassing our Native American people.

  3. Kristin Schultz says:

    I have never heard of limiting where a person obtains their attorney. It is nonsense to make an arbitrary rule to only be able to hire an in state attorney. A US citizen needs the right to hire whichever attorney they want to. If it were the corporation hiring an attorney or two, it would be allowed to have whichever attorney it chose, where ever they came from.

  4. Becky McCrary says:

    This is rediculous, why does it matter where attorneys are from that the people hire to represent them?
    The people should be able to hire attorneys from wherever they please..this is their right!

  5. darlene fairbanks says:

    <3 I Support All <3 Water Protectors <3 !!! It Is Their Right To Choose Out Of State Representation Or Where Ever They May Decide On!!! Stop The Racism & Harassment Of Our Native Brothers & Sisters!!!!! HOKA!!!

  6. crystal hooper says:

    Water and Earth protectors deserve the best coz they give the best. I would be hard-pressed to find enough fair and aware lawmen in North Dakota who would protect them.
    I believe the number of charges dismissed tells the story. Allow those skilled lawyers to continue protecting the rights of, and defending, Water and Earth protectors. To end the arrangement would be mean-spirited.

  7. Mary Jane Shanklin says:

    Quit trying to obstruct justice! Quit trying to incarcerate everybody you don’t deem “worthy”. When will you realize Karma is real?

  8. The Sixth Amendment is clear on this issue, & it is clear that those working to abridge the Right to Assistance of Counsel are stepping into a liability that will cost North Dakota Taxpayers due to the liability such an unconstitutional decision imposes upon the State.

    Amendment VI

    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

    – Distance Everheart,
    Founder of Wild Willpower PAC

  9. At my deepest core will never understand this hatred, division and entitlement of the, sheeple? Regard only for self, never of fellow brothers and sisters. Not of animal,water,air or earth. This is something that will always just seem impossible ,no matter my eyes, mind,ears, or body. Where is justice,the compassion, the common sense. This in the name of money religion, and color? This is not a long intellectual rant. This is my heart aching ….But never without hope Donna Farrell Human being, Water Protector

  10. Julie White says:

    The Water Protectors need fair representation and due to the high numbers of them being tried in North Dakota there can’t be enough legal representatives with the right kind of cultural knowledge in North Dakota alone to give the right level of representation to the Water Protectors. In the interests of fairness out of state lawyers should continue to be allowed to represent Water Protectors in North Dakota.

  11. octoberchild says:

    the law was and is the only concern a judge should have. I don’t understand why these North Dakota judges care for where the attorneys come from. every person has a right to defend herself/himself. if they don’t see a local attorney able to do that, or because of so many questionable arrests the local attorneys are completely covered, they have the right to get a non-local attorney for their “defense” of peacefully protecting the water. it is North Dakota judges’ duty to provide peaceful people with their rights.

  12. Shirley Beagle says:

    It is imperative that Water Protectors be allowed to utilize whatever lawyers they see fit. They have the right to obtain their own counsel.
    Don’t let the “powers that be” manipulate the law to suit themselves.

  13. Elizabeth Chapa says:

    This is not just about the protesters – it is about due process and equality before the law. Every person deserves to be represented by an attorney they trust, by an attorney that has experience with their type of case, and will be on their side. I believe that if the North Dakota Supreme Court takes away this right for individuals to seek representation outside of the state, the government is taking away the defendant’s constitutional rights to equality under the law.

    Many of the protesters are people of color. Historically and currently, court appointed legal representation for people of color has been profoundly disproportionately unfair. Please consider all aspects of the protesters lives and identities. Our government should do better for our people.

  14. Joli Bland says:

    The Thunderbolt Chickamauga Indian Nation supports peoples right to have out of state attorneys. Head Mother Willow Wind

  15. Brenda Marshall says:

    I believe that you should and must have the cousel of your choosing, not allowing the court to decide for you. Seems unconstitutional at best but morally bankrupt also.

  16. Sara Rajan says:

    Any plan to deprive the Water Protectors of out-of-state lawyers is transparently part of the over-all agenda to weaken, assault and insult them. To say the least, it is mean-spirited, racist, and unjust.

  17. Janet Tucker says:

    It is in the within the law that Water Protectors have the right to seek council of I of state lawyers. It is unconstitutional to deny the water protectors their right to council. Do your job and stop trying to break the law of the land by denying water protectors their right to have their lawyer defend them.

  18. Janet Tucker says:

    It is within the law that Water Protectors have the right to seek the council of out of state Lawyers. It is unconstitutional to deny the Water Protectors their right to these out of state lawyers. Do your job and stop trying to break the law by denying water protectors their right to have their lawyers defend them.

  19. Della No Heart says:

    With so many pending court appearances for Water Protectors, they have the right to have fair representation by out of state lawyers.

  20. Jean Genevie says:

    ND is required by law to ensure the accused has council without conflicts of interest and council that is the choice of the accused.
    Under the 6th ammendment, the accused has five distinct rights: 1) the right to counsel of choice,2) the right to appointed counsel, 3)the right to conflict-free counsel, 4)the effective assistance of counsel, and 5)the right to represent oneself pro se.
    Whether counsel is retained or appointed, the defendant has a right to counsel without a conflict of interest. If an actual conflict of interest is present, and that conflict results in any adverse effect on the representation, the result is automatic reversal Subject to considerations such as conflicts of interest, scheduling, counsel’s authorization to practice law in the jurisdiction, and counsel’s willingness to represent the defendant (whether pro bono or for a fee),criminal defendants have a right to be represented by counsel of their choice. The remedy for erroneous deprivation of first choice counsel is automatic reversal.

    Since ND does not have lawyers that are not conflicted, it is required that they allow out of state representation.

  21. Pete Hoffecker says:

    In a situation in which many documented abuses, infringements and biases have been already displayed, it would be be in the best interests of a just democracy to allow outside counsel. To limit the peoples right to fair legal representation is unjust and cruel. They have a right to out of state attorneys.

    You have a South Dakota GOP Representative (Lynn Disanto), making offensive tweets showing a car running over protesters and making light of the recent death’s, for a joke, and we are to believe South Dakota has the indigenous people’s interests’s at heart. Continue to allow outside counsel or you will manifest another groundswell of support for the people’s rights.

  22. Russell Maiers says:

    You have so much to hide if you are trying to control everything about lawyers. I was at Cheyenne river camp north in January and February and know your sins. Sacred stone will not let its treaty be broken. Evil will never win

  23. Wade Guthrie says:

    Please put aside prejudicial concerns and do what is right for our indigenous brothers and sisters who are only protecting their rights to health and cultural dignity, by insuring that corporations do not soil their air, land and water in the interest of profits. Left unchecked this greed will force us all to join this movement — hopefully before it is too late.

  24. C.B. says:

    Why does it matter where the lawyer comes from? Defendants deserve the best defense so if it’s out of state then so be it. I support out-of-state lawyers for the good of the people.

  25. If oil corporate are allowed to hire any attorney even if they live in the state or not why would it change because they oppose on what that state & are government stand for $ over the people. We have the right to hire any attorney we want a good attorney should free of who can put corp. $ or any outside infuses

  26. Donna Kurszewski says:

    I hope it isn’t too late to send our letter to Ms Miller at the ND Court. I sent the following:
    Dear Ms Miller ~
    We live in Emmons County, ND. The State of North Dakota made it a tax funded priority to defend Energy Transfer Partner’s project. It is our belief that the ordinary people of North Dakota were, and have been overlooked in the process of siting and licensing an extremely aggressive corporate agenda.
    We, too, have had our objections to the Dakota Access Pipeline. It crossed numerous wetlands, creeks, cropland, and pastureland in Emmons County without adequate public discussion or environmental impact assessment. The entire rural water district for Emmons County is reliant on uptake from the Missouri River directly downstream from the DAPL Missouri River crossing. We understand the concerns of the Standing Rock Nation.
    That being said, although we did not participate in public resistance to DAPL and were not arrested for voicing our concerns, we feel it a gross injustice for the State of North Dakota to fail in meeting the Constitutional guarantee of a speedy trial and proper representation for those who were arrested for publicly demonstrating their concerns.
    It is essential that out-of-state attorneys be allowed to continue their representation of those who are awaiting hearings and trial. Most of the attorneys – if not all – have dedicated their work free of charge to those in need. As property tax payers who are continuing to see increases in our annual property valuation and taxes, WHY would the State wish to further burden those of us who live and work here with attorney fees paid out of our pockets?
    Why would North Dakota refuse to allow these attorneys from representing those in need of their services? PLEASE, continue allowing attorneys from outside ND to give assistance to those still facing hearings & trial!
    Best regards,
    Charles & Donna Kurszewski
    Beaver Creek Valley, Emmons County, ND

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