A class action lawsuit was filed on behalf of indigenous water protectors at Standing Rock and others, who resided in the area when police shut down Highway 1806 during protests against the Dakota Access pipeline’s construction.
On October 24, 2016, Highway 1806 from Fort Rice to Fort Yates was closed. A concrete and concertina wire barricade blocked travel from October 28 to March.
The lawsuit [PDF] argues the sheriff of Morton County and other local authorities, as well as the private security firm, TigerSwan, were involved in acts that infringed upon the First Amendment and Fourteenth Amendment rights of water protectors.
The right of water protectors to “interstate and intrastate travel” was allegedly violated, and as a result, individuals were “substantially burdened” in “seeking medical care, in purchasing supplies (and in other ways engaging in commerce), in meeting, speaking and being interviewed by media, in gathering and reporting the news, and in in visiting family members.”
It further contends the “travel limitations” stopped plaintiffs from being able to assemble, speak, and pray in the area that was in question—a “nearly nine-mile stretch of a public road abutting numerous sacred and ceremonial sites, as well as protions of the public road near the pipeline’s parth.”
Journalists were “unnecessarily burdened” as the closure obstructed press access to camps and to the Standing Rock reservation.
The lawsuit seeks to have a class of individuals, which could be as many as 10,000 people, certified so they can challenge how their constitutional rights were allegedly violated.
“The road closure was a targeted response—a sanction meant to punish, marginalize and dehumanize tribal people who live on Standing Rock that needed to travel this road every day out of necessity,” said Wašté Win Young, one of the plaintiffs. “[It] was also an attempt to slow and deter the thousands of people who had come to support an indigenous community opposed to the construction of a pipeline that their community had never consented to.”
Young is a member of the Standing Rock Sioux tribe. During the protests, she lived at the camps along the Cannonball River. She sought to “pray, speak, travel, and assemble with others in public locations that she was unable to access” because Highway 1806 was closed.
She has a “documented medical condition requiring routine and regular travel to Bismarck. She has children and regularly travels to the city for shopping. The closure had a substantially added to the “time, gas, car wear, and stress” experienced when traveling and led her to limit trips.
As the complaint details, the Dakota Access pipeline route included the Lake Oahe crossing. Indigenous tribes and supporters opposed construction because they believed it would violate 1851 and 1868 treaties that designated the land as territory of the Oceti Šakowiŋ (Great Sioux Nation.)
Camps were setup throughout 2016, where Highway 1806 intersected with the Cannonball River and near the border of the Standing Rock Sioux Reservation.
“One of the primary functions served by the camps was symbolic, with the very act of staying at or visiting the camps representing the primary means by which numerous individuals expressed their support for the movement,” the complaint states. “Central to this symbolism was the resettlement of lands over which the Oceti Šakowiŋ continues to claim ownership, with hundreds of water protectors becoming legal residents of the camps located on federally and tribally owned land during the time period in question.”
“These camps were only accessible via Highway 1806, which is also the principal route between the Standing Rock Sioux Reservation and Bismarck/Mandan—the closest major cities to Standing Rock.”
The site nearby and around the highway became more important for demonstrations as “ancient burial and ceremonial sites, and other significant cultural artifacts, were found by Tim Menz, who is the Standing Rock Historic Preservation Officer. This occurred in early September.
Security officers made international news when dogs were unleashed on water protectors who challenged Dakota Access’ attempt to destroy the sites.
By October 24, the complaint alleges defendants closed a “significant portion” of Highway 1806 to “all water protector travel.” This included the stretch of road near identified sacred and ceremonial sites, as well as areas nearby construction that had been a center for “speech, prayer, and assembly for the past several months.”
Three days later, trucks were deployed by defendants to block the Backwater Bridge, which the complaint describes as a “small bridge on Highway 1806 crossing Cantapeta Creek less than a mile north of the northern boundary of the Standing Rock Sioux Tribe.” It happened right after a “violent police and private security-led raid on a camp on land that was claimed by the Cheyenne River Sioux Tribe.
The concrete barricade went up on October 28. Altogether, this closure forced plaintiffs to take “a detour on worse-maintained small roads.” The barricade obstructed anyone traveling on foot, horseback, or on all-terrain vehicles from heading north on the highway, even if they were able to get around the barrier on the bridge.
Furthermore, defendants used force against water protectors in November when they entered a river. It “chilled expressive and associational rights” and effectively barred the “symbolic speech of entering the river and crossing on the opposite bank.” It showed the authorities would aggressively enforce a broad perimeter to restrict water protectors.
“The purpose and effect of defendants’ road closure was to keep plaintiffs miles away (well out of line-of-sight or earshot) from the construction workers, security guards, and sites that had for months prior been a primary focus of plaintiffs’ First Amendment activity,” the complaint concludes. “This effectively left plaintiffs without any other means of communicating with on of their principal desired audience (construction workers and security officers) or in one of their most symbolically important forums (Highway 1806’s curtilage abutting the identified sacred and ceremonial sites near to where the pipeline would and eventually did cross).”
Bernard Harcourt, a Columbia law school professor and author of “The Counterrevolution: How Our Government Went To War Against Its Own Citizens,” sees what happened with the highway shutdown as a reflection of how counterinsurgency has been domesticated in the United States. Particularly, TigerSwan enforced a counterinsurgency practice against water protectors.
“In internal documents, [TigerSwan] spoke of the water protectors as following the ‘jihadist insurgency model.’ They viewed them as an insurrection.”
Noah Smith-Drelich, a former staff attorney for the ACLU in North Dakota, South Dakota, and Wyoming who is representing the plaintiffs as well, notes the “unequal reach of the road closure” made it “especially pernicious.”
“For employees of the private pipeline company and for some local residents, the public right-of-way was made available. But for tribal members and their allies, irrespective of the time of day or day of the week, it was not. This is the exact sort of policy that the Constitution is meant to guard against.”