Rattler sat on the sofa scrolling through his phone. It was a drizzling, cold spring day in Bismarck, North Dakota, but he wasn’t going outside much anyway. A great mountain of a man with thick black hair to his waist and a disarming gentleness, Rattler made the objects around him look small. The sofa on which he sat, the phone he held, the homey living room where we met, the whole city of Bismarck seemed too small for Rattler. But his bail conditions and an ankle monitor confined him to the area for over half a year as he awaits trial.
He put the phone down. “I was looking for a quote,” he said, “about how the people have the right to overthrow the government if it abuses its power. Who said that?”
Sandra Freeman, Rattler’s attorney, sat with him on the sofa. She ventured that the line he was seeking might be from the Declaration of Independence. Rattler didn’t return to his phone to check. If he had, he may have noticed that Jefferson’s founding document, that vaunted proclamation of America and its values, described the land’s native peoples, his ancestors, as “merciless Indian savages.”
Rattler, 45, legal name Michael Markus, is one of six native activists facing near-unprecedented federal charges related to the Standing Rock protest camps against the Dakota Access Pipeline (DAPL). The federal cases sit alongside hundreds and hundreds brought by state prosecutors, stemming from vast numbers of arrests made over the six months that the camps stood—a protest which at its height drew up to 15,000 participants from around the world and, for a short time, the dilettantish gaze of the mainstream media. The authorities razed the last major holdouts of the camps on February 23, by which point numbers had already dwindled as blizzard conditions pummeled the prairie lands. The camera crews packed up and most of the country went back to focusing on Trump.
But for Rattler, his federal co-defendants, the many hundreds of arrestees facing state charges, and their lawyers, the fight on the ground in North Dakota is far from over. They face a terrain as brutal and unforgiving as any winter on the Standing Rock reservation: a small-town court system in conservative rural counties with no experience of anything nearing this scale or political valence.
The fate of the DAPL standoff does not only reside in judicial decisions about the flow of oil. Those who stood on the frontlines for clean water, for indigenous struggle, for their ancestors and for our future, are being brought to alleged justice in an area where the very possibility of an impartial jury is in serious doubt. North Dakota prosecutor Ladd Erickson told me over the phone that prior to the Standing Rock cases, the only mass arrest incidents that these local counties had dealt with involved breaking up graduation parties of drunk high-schoolers. And while thousands flocked to the protest camps, only a few dozen lawyers and supporters remain and return to continue the arduous and overwhelming task of defending these cases in an area where towns consist of interconnected parking lots, strip mall restaurants and boxy houses, surrounded by unending sightlines of rolling grassland. At the time of writing, 140 defendants still don’t even have legal representation, according to figures from the WPLC.
“The reality is that the frontlines are in the courthouse now,” said Freeman, a former public defender who moved from Colorado to live in North Dakota full-time to fight the DAPL arrest cases. She is one among a small cadre of lawyers and legal support workers who have put their normal lives on hold in order to seek justice for water protectors facing trial in the conservative, rural midwest. “The celebration and camaraderie of the camp—that’s gone,” she said, “but we’re left to stand with people going into the gauntlet, facing incarceration for being who they are.”
The Dakota Access Pipeline is now fully built, following President Donald Trump’s January order to expedite its completion, which reversed President Obama’s block on the project. In June, crude oil began pumping from North Dakota’s Bakken Formation to Illinois, under the Mississippi river and through sacred Lakota land and burial sites. There has already been one spill, albeit small. A major spill would contaminate the main water source of the Standing Rock Sioux and 17 million people who live downstream. Last month, a federal judge ruled that the Army Corps of Engineers, responsible for approving the pipeline’s route and completion, had not adequately considered the impacts of a spill into the Missouri River. The decision is a partial victory for the Standing Rock Sioux Tribe, but too little too late and oil is still flowing through the DAPL. Since February, anti-pipeline activists have taken their fight from North Dakota to new camps across the U.S., against pipeline construction and fracking operations in Nebraska, Iowa, Pennsylvania, Louisiana, Texas, Florida, New Jersey, and Massachusetts.
On the first night I spoke to Freeman in the dingy apartment rented by her legal collective in Mandan—the small town in which most of the hundreds of state cases will be tried—she pulled out a dog-eared map of the area. On it were the lines of the Fort Laramie treaties, which drew up the Great Sioux Reservation in 1851 and 1868. And next to it, Freeman roughly sketched how the land today—the site of the pipeline standoff—is broken up into federal, private and reservation property. “The history of exploitation and extraction cannot be disconnected from what’s happening here,” she said.
The unbroken American history of native oppression is not lost on Rattler, a marine veteran, truck driver and card-carrying Oglala Lakota Sioux Indian who lives on the Pine Ridge Reservation, South Dakota—designated one of the poorest areas in America. His great-great-great-great grandfather was Chief Red Cloud, the storied Oglala Lakota leader who oversaw successful campaigns against the U.S. Army in 1866 and signed the 1868 Fort Laramie treaty, delineating the Indian Country through which the DAPL now runs. Red Cloud died at Pine Ridge in 1909. The same Pine Ridge where over 250 Lakota were massacred and buried in a mass grave in 1890 at Wounded Knee; the same Wounded Knee where, in 1973, American Indian Movement (AIM) activists and supporters from every Indian nation occupied the town. Unlike the Standing Rock standoff, the Wounded Knee occupation was armed. But like the water protectors four decades later, the AIM resistance at Wounded Knee faced militarized, multi-agency law enforcement repression, followed by protracted court battles aimed at defanging and punishing the movement.
And it is with this historic struggle in mind that Freeman chose to join the camp, originally “supporting the DAPL resistance not in [her] capacity as an attorney.” She told me that after seeing water protectors “brutalized by police,” and recognizing the expansive need for legal support, she applied in November to work as the Criminal Case Coordinator for the Water Protector Legal Collective—a group that originated in the camp to provide on-the-ground jail and legal support for arrestees and is now one of two interconnected, donation-funded groups overseeing the daunting task of coordinating defense and logistics for hundreds of disparate defendants. The other, the Freshet Collective, works largely on arrestee support, such paying nearly a half a million dollars in cash bail, coordinating criminal defense, travel, accommodation, and logistics for the out-of-state lawyers and hundreds of defendants who live nowhere near the site of their court dates. Freeman moved to North Dakota, leaving her family and her regular legal practice in Denver for months at a time.
“For a lot of the lawyers and the defendants here, there’s a spirituality and a politics involved in this fight that can’t be untangled, and it would be hard to keep working without it. So much out here is hard,” Freeman said. “The attorneys and legal workers who come here, we wake up every morning and put our bodies and spirits upon the gears, upon the wheels, upon the levers, upon all the apparatus of this colonial behemoth—the state violence and repression that is occurring yet again in order to deny indigenous people sovereignty over their own lands in the name of resource extraction.”
The Standing Rock federal trials are not likely to begin until October, at the earliest. The six federal defendants have all been charged with use of fire to commit an offense and civil disorder, stemming from events on October 27—a major date in the pipeline standoff on which 141 people were arrested. Police deployed armored vehicles, lashes of pepper spray and LRAD sound cannons to clear water protectors from one of the campsites, while barricades were set alight and DAPL equipment was damaged. The civil disorder charge is a rarely used federal statute with a fiercely political history—it was passed in the late 1960s at the height of the Black Liberation and anti-war movements. AIM members from the Wounded Knee occupation faced the very same charge.
It was not until January 23, three days after Trump’s inauguration, that the Justice Department moved to file federal charges. This, Freeman said, was “no accident.” Each defendant now faces up to 15 years in prison if convicted.
Meanwhile the state cases are already trickling through Morton County, with hundreds still unresolved. “The size and scope of the thing, it’s overwhelming,” said Freeman.
It’s hard to imagine a starker visual disconnect between the dramatic spectacle of the protest camps and the boxy smalltown blocks and parking lot grids that make up the nearby cities. The pipeline fight provided a visual language of indigenous resistance and frontline militarized battle: the bright flags of every tribal nation flying, the temporary tent and tipi towns, hundreds of bold banners, water protectors in traditional dress on horses, law enforcement officers and National Guardsmen in riot gear. Tear gas. Water cannons. Fire.
Just over 70,000 people live in Bismarck, where the federal court is small enough to share a building with the post office, the granite stone entrance of which became a regular backdrop for protests. In bars decked in mock saloon style and American flags, “Backing the Blue: Friends of Law Enforcement” signs are posted in the windows. Neighboring Mandan has a mere 21,769 residents—slightly larger than the population of the protest camps at their largest. Mandan, named after the indigenous tribe that historically lived on that land, has a 90 percent white population and boasts the slogan “Where the West Begins.” If you squint, it could almost be quaint; a late 19th-century railroad town with morning-trimmed store fronts and saloons. But to look at it clearly is to see cheap, beige concrete facades and dilapidated motels, sports bars and chain restaurants. Here, the lawyers and legal support workers live and work out of a former hotel-turned-flophouse, with a makeshift office on the ground floor. Inside the main building entrance sits an old-timey buggy car—no doubt once an ornament from the hotel days. A Christmas wreath hangs on the wall in mid-Spring.
The curtains are drawn over the office windows and there are no signs on the door. They work in one large room with mismatched felt sofas and plastic chairs, a shit-brown carpet, a defunct popcorn machine, and a poster of Leonard Peltier pinned to the wall. According to Freeman and her colleagues, the first two buildings in which they tried to rent turned them down after hearing that they were in town to defend water protectors. “It’s hostile environment here, for sure,” Freeman said.
Rattler told me in the previous weeks, on two occasions, two different unmarked cars pulled up beside him on the street and a passenger brandished a Glock 10 before the vehicles sped away. He said that numerous local residents have driven by and yelled, “Go home!” while he smoked on the porch. “It’s funny, because I want to get out of here, too,” he said. “But part of me wants to yell back, ‘Go home? We were here first!’” He’s staying at the home of a member of the local Unitarian Church, a small detached house near the center of Bismarck in a row of small detached houses, in organized, anonymous, suburban-looking blocks.
Read the full story at Esquire here.