Vanessa Dundon, a member of the Navajo Nation and a part of a water protectors’ camp resisting the Dakota Access pipeline since September 11, may never be able to see out of her right eye again. She was hit by a tear gas canister on November 20, when police attacked hundreds of water protectors on Backwater Bridge.
In response to the brutality she suffered, Dundon, along with other water protectors, have filed a lawsuit against Morton County, Morton County Sheriff Kyle Kirschmeier, and other law enforcement agencies responsible for “excessive force” used against water protectors.
The Water Protector Legal Collective filed the class action lawsuit [PDF]. It seeks damages and “injunctive relief” for the “curtailment” of water protectors’ First and Fourth Amendment rights “by using highly dangerous specialty impact munitions (SIM), explosive tear gas grenades, tear gas canisters, and a water cannon spraying high pressure water, as a means of dispersing protests and prayer ceremonies.”
The lawsuit directly challenges the conduct of the City of Mandan Police Department and Stutsman County Sheriff’s Department, which has provided support for Morton County’s efforts against the water protectors. The Stutsman County Sheriff’s Department allegedly “brought an armored vehicle with a water cannon mounted on top, which was used to spray water on plaintiffs and others despite the subfreezing temperature.”
“No orders to disperse or warnings were given before deployment of these high levels of force against the unarmed water protectors,” the lawsuit states. “On this night, over 200 water protectors, including plaintiffs, were injured by excessive police force, some of them very seriously.”
According to the lawsuit, Dundon was one of the first water protectors on the bridge. The water protectors used tow equipment to remove “burned out trucks from the bridge so emergency vehicles could reach camp.” Law enforcement placed the vehicles there, and the Army Corps of Engineers had promised to remove them.
Law enforcement lined up. Dundon feared for the safety of a woman from the media, who was standing by herself across a razor-wire barricade. Dundon suggested the woman move out of concern for her safety. She was close to police and heard the firing of a tear gas cannon. When she looked to see where it was shot, the canister hit her right in the face. She closed her eyes and it struck her right eye.
A rubber bullet struck her left leg right below her butt. She fell down, as she tried to cover her eye up with a bandana. Two water protectors helped her into a minivan. “Her eye was bleeding so much that she could not see, and she was worried her eyeball had been dislodged from its socket.”
Later, an ophthalmologist at Sanford Hospital put stitches in her eye. She stayed overnight in the emergency room. She received an MRI for her right eye. Hospital staff woke her the following day, and she was released from the hospital but told she had a follow-up appointment later in the afternoon. Staff walked her to the lobby, but she was very dizzy. While waiting for her cousin, she laid down and hospital security approached her. She told them she had trouble standing because of dizziness and was readmitted to the hospital.
Dundon was referred to a retina specialist. She went to Grubes Retina Clinic in Mandan, North Dakota. The clinic would not treat her because she was a water protector from Standing Rock. The following day, Dundon went to Acensia Hospital in Fargo, North Dakota, and received an ultrasound for her right eye. She learned “there was so much bleeding and hemorrhaging that it was difficult to determine the extent of the damage.”
The next day she had another appointment. The doctor informed her that her retina was likely detached and referred her to a specialist in Plymouth, Minnesota. On November 25, the doctor informed her that her eyeball had a cut. He said treatment will take months and instructed her not to return home to Arizona because the elevation there is different and could harm her eye.
“The doctor said the trauma to her eye will likely affect her vision for the rest of her life and it is unclear at this time if she will be able to see out of her right eye again,” according to the complaint. “Dundon’s eye is in severe pain and causes pain on the right side of her face. She has difficulty sleeping because of the pain. There is an almost constant throbbing and pressure in her eye.”
Israel Hoagland-Lynn was “200 feet from the front line of the protests on the bridge.” As he moved to the front of the protest, the lawsuit alleges police sprayed him with water from the water cannon. He left to warm up but returned and saw two Native Americans crouched on the ground. He helped shield them with plywood to protect them from rubber bullets and a water cannon. As he held the plywood, police trained the water cannon on him.
A rubber bullet hit a nearby water protector’s finger. Hoagland-Lynn tried to help the person but was shot in the back by a rubber bullet. He looked up and saw an officer pointing a gun at him. He attempted to curl up and shield his body with plywood, however, he was unable to protect his head. A rubber bullet struck his skull. He dropped to the ground and lost consciousness. With a hole bleeding on his head, he was taken to a hospital, where he received 17 staples to close the wound.
Mariah Marie Bruce has been part of several protests since she arrived at the Oceti Sakowin camp in mid-October. She walked up to the front line on November 20 and was hit by the water cannon. It froze her skirt. She had no gloves. By the end of the night, according to the lawsuit, she could barely move her hands.
At one point, “Bruce bent down to grab a lid to a plastic container to use as a shield, and while she was bent over a police officer hit her in the vagina with an explosive tear gas blast grenade, which exploded on her body. After Bruce was hit, she did not feel any immediate physical pain, but she thought about how glad she was that she was not pregnant because the impact and explosion could have caused her to miscarry.”
Then, about twenty minutes later, she felt intense pain in her vagina and abdomen. She vomited. The medics were concerned so she went to Sanford Hospital.
As of November 22, “She is still in a lot of pain and needs assistance from others to move around. When she stands, it feels like her insides are falling out. She is also concerned about how this injury could impact her ability to have children in the future.”
Brandy Toelupe, a lawyer with the Water Protectors Legal Collective, said in a press statement the Morton County Sheriff’s office not only violated the constitutional rights of peaceful protestors but also engaged in actions emblematic of a “long history of abuse against indigenous peoples.”
“From the beginning, governments have used their latest technologies to take land and resources from Native nations and oppress Indigenous peoples. Sheriff Kirchmeier’s actions make it clear that nothing has changed,” Toelupe added.
“The civil rights violations that night were deliberate and punitive,” added Rachel Lederman, also a lawyer with the legal collective. “The Morton County Sheriff’s Department’s illegal use of force against the water protectors has been escalating. It is only a matter of luck that no one has been killed. This must stop.”
Altogether, the eight class representatives that sued authorities seek an order declaring what law enforcement did as “unlawful.” They also want a class to be certified so more than 100 persons can benefit from this legal challenge.
Lawyers believe the water protectors were retaliated against by police in violation of their First, Fourth, and Fourteenth Amendment rights. This was motivated by “evil motive or intent.” They also allege law enforcement carried out policies, customs, and practices that directly encouraged the violations of water protectors’ constitutional rights. Damages are sought to deter law enforcement from committing such violence against water protectors again.
The class action lawsuit comes as the Army Corps of Engineers issued an eviction notice to the Standing Rock Sioux Tribe to vacate tribal land, where the Oceti Sakowin encampment has been established to fight the Dakota Access pipeline. It also comes as North Dakota Governor Jack Dalrymple issued an executive order to clear protest encampments under the guise of protecting people from harsh winter weather. Nevertheless, indigenous people and their allies refuse to back down.
Dallas Goldtooth of the Indigenous Environmental Network declared at a press conference on November 26, “These are just intimidation statements. These are things to put us into a reactionary space, and we refuse to be put into a reactionary space.”
“The movement that you see across this world was built out of power, power based on indigenous rights, built on our struggle to defend our rights as indigenous people, our ability to self-determine for ourselves what happens to our land, what happens to our water, and what happens to our bodies.”