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Lawsuit Over Highway Shutdown During #NoDAPL Protests Alleges Attempt To Extort Standing Rock Sioux

As private security company, TigerSwan, disputes whether they should be a target of a class action lawsuit brought on behalf of indigenous water protectors and others at Standing Rock, plaintiffs have further outlined alleged civil rights violations that occurred in October 2016.

Indigenous people and activists from North Dakota and throughout the United States formed encampments to challenge Dakota Access and the construction of an oil pipeline in violation of 1851 and 1868 treaties, which designated the land territory of the Oceti Šakowiŋ (Great Sioux Nation).

On October 24, 2016, Highway 1806 was closed from Fort Rice to Fort Yates. A concrete and concertina wire barricade blocked travel from October 28 until March.

A lawsuit filed in October of last year argued the sheriff of Morton County and other local authorities, along with TigerSwan, infringed upon the First Amendment and Fourteenth Amendment rights of water protectors.

Plaintiffs recently amended a lawsuit [PDF] that further clarifies the extent to which TigerSwan and authorities engaged in alleged discrimination.

The “true purpose” of the discriminatory closing was to “extort political concessions from the Standing Rock Sioux Tribe,” the lawsuit claims. “The concessions defendants demanded of the Tribe included the Tribe changing its position [toward] water protectors in North Dakota and the existence of the camps under its jurisdiction.”

Authorities intended to “severely burden residents of the [Standing Rock Sioux] Reservation by limiting access to and from the Reservation. This region of North Dakota experienced severe winter weather for much of the period of the discriminatory road closure, including multiple major blizzards and prolonged periods of sub-zero temperatures.”

The lawsuit adds, “In conjunction with defendants’ closure of the quickest and safest route to the nearest major hospital in Bismarck and to the nearest source of many lifesaving supplies, this weather greatly increased the risk of serious bodily injury and death to those gathered by the Cannonball River, as well as those who resided on the nearby Reservation.”

“Altogether, the emotional and financial costs of this discriminatory closure, measured in, among other things, additional gas, car wear and tear, time, stress, and lost business revenues, were substantial, and disproportionately impacted the Standing Rock Sioux Tribe and tribal members.”

As outlined in the lawsuit, in September 2016, a TigerSwan liaison officer was “installed” in the Joint Operations Center, which law enforcement setup to target water protectors. TigerSwan conducted flights over camps to collect intelligence, compiled “person of interest” dossiers, directed infiltration of camps, and compiled video and photo evidence for the North Dakota Bureau of Investigation to use when prosecuting water protectors.

One example of TigerSwan’s abuse involved the company claiming to have found “Islamic individuals” organizing with water protectors. They suggested they were monitoring “Shia Islamic” people. It was TigerSwan’s way of persistently and misleadingly labeling “indigenous speech and prayer as riotous,” which authorities incorporated into their response to activism and religious ceremonies.

But TigerSwan insists [PDF] the lawsuit brought on behalf of water protectors was filed “for an ulterior purpose,” and it “constitutes misconduct.”

The company claims it was damaged because plaintiffs accused them of violating their constitutional rights. They demand damages for this “misconduct” and “attorneys fees and costs for having to defend against this action.”

Attorneys for water protectors maintain TigerSwan disputes facts or governing law, and that cannot be a basis for alleging that the process for filing a lawsuit was abused.

Camps were setup throughout 2016, where Highway 1806 intersected with the Cannonball River near the border of the Standing Rock Sioux Reservation.

When the highway was closed, it put water protectors well out of line-of-sight and earshot of the very people they wanted to communicate with through their First Amendment activities—the construction workers, security guards, and others tasked with managing the pipeline project. It also blocked water protectors from an area near sacred and ceremonial sites, where the pipeline eventually crossed.

The water protectors are represented by Noah Smith-Drelich, a Columbia Law School lecturer in law, and Bernard Harcourt, a Columbia Law School professor. It is pursued through the school’s Center for Contemporary Critical Thought.

Potentially, 10,000 or more people who participated in the encampments or protests could be covered by this lawsuit.

Smith-Drelich argued the latest filing “makes clear how pernicious this road closure was.”

“We expect through this lawsuit to amplify our plaintiffs’ and the broader community’s legitimate concerns over this plainly unconstitutional policy—and to obtain much needed redress.”

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."