Chairman Dave Archambault II of the Standing Rock Sioux Tribe speaks at the United Tribes Technical College's 20th annual Tribal Leaders Summit in Bismarck, North Dakota, on September 6, 2016. Photo courtesy United Tribes News

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Judge dissolves restraining order against leaders of Standing Rock Sioux Tribe

Monday, September 19, 2016

A federal judge on Friday dissolved a temporary restraining order against several leaders of the Standing Rock Sioux Tribe but had harsh words for some who are resisting the Dakota Access Pipeline.

Chairman Dave Archambault II and seven other leaders of the North Dakota tribe were arrested on August 12 for allegedly interfering with construction of the controversial project. The Dakota Access partnership then secured a restraining order that prevented the defendants from going near any worksites.

But Judge Daniel L. Hovland said the restraining order was no longer necessary. He said it served no purpose to tell anyone to follow the law because everyone is supposed to follow the law.

"Enjoining a crime is superfluous as all persons are enjoined by the commands of our criminal laws," Hovland wrote in the seven-page decision. "All persons are expected to live in accordance with local, state, federal, and tribal laws, and to conduct themselves in a civil, respectful, and law-abiding manner."

#NoDAPL water protectors lock down equipment constructing the Dakota Access Pipeline north of the Standing Rock Sioux Reservation on September 6, 2016. Photo by Zoltán Grossman

As he dissolved the restraining order, Hovland offered some thoughts on the #NoDAPL movement. While acknowledging that the overwhelming majority of the thousands who are camped near the Standing Rock Sioux Reservation remain lawful, he said the actions of a few -- he described them as "hooligans" -- show the protests are far from "peaceful."

"With respect to the assertion the movement has been a peaceful protest, one need only turn on a television set or read any newspaper in North Dakota," the judge wrote. "There the viewer will find countless videos and photographs of the 'peaceful' protestors attaching themselves to construction equipment operated by Dakota Access; vandalizing and defacing construction equipment; trespassing on privately-owned property; obstructing work on the pipeline; and verbally taunting, harassing, and showing disrespect to members of the law enforcement community."

"The Morton County Sheriff reported that 22 protestors were arrested on September 13, 2016, just a few days ago," Hovland added. "To suggest that all of the protest activities to date have been 'peaceful' and law-abiding defies common sense and reality."

Hovland largely lacks jurisdiction over those incidents -- indeed, he pointed out that Standing Rock leaders are being prosecuted in state court. Their crimes appear to be relatively minor, with Archambault facing one "disorderly conduct" charge, which is considered a Misdemeanor Class B in North Dakota.

Democracy Now! on YouTube: Dakota Access Pipeline Company Attacks Native American Protesters with Dogs & Pepper Spray

So far, only about 50 people -- a "small percentage" as Hovland admitted -- have been arrested out of the estimated 2,000 to 5,000 who have been at the #NoDAPL encampment in the last several weeks. Some of the cases seem particularly egregious, with journalist Amy Goodman of Democracy Now! facing a misdemeanor trespassing charge in connection with her widely-seen report of a September 3 confrontation during which local law enforcement were not even present.

"Freedom of the press is essential to the functioning of a democratic society. North Dakota, muzzle the dogs, not the press," Goodman and her husband, Denis Moynihan, who used to work for Democracy Now!, wrote in a column last week. Dogs and mace were used by private security guards on the resisters.

The cases are proceeding in Morton County, where Sheriff Kyle Kirchmeier has repeatedly accused #NoDAPL resisters of unlawful activity in posts on Facebook rather than taking action through the justice system. He has acknowledged that his deputies stood back during the September 3 incident and during another that resulted in charges against Jill Stein, the Green Party's nominee for president.

Morton County is overwhelmingly non-Indian despite its presence near the Standing Rock Sioux Reservation. According to the U.S. Census Bureau, only 4.1 percent of the population is Native.

The elected leadership is non-Indian as well. Rather than welcome or offer services to the #NoDAPL encampment, the county commission declared an "emergency" last month and its chairman, Cody Schulz, basically told resisters to leave after a federal judge thousands of miles away issued a ruling that has since been put on hold temporarily by a higher court.

Northwest Natives and #Seattle Stand with #StandingRock. #NoDAPL rally. pic.twitter.com/8WcXRdITo9
— Chris Stearns (@stearnsseattle) September 18, 2016

Hundreds turned out for #NoDAPL rally in Seattle, Washington, on September 16, 2016. Source: Chris Stearns (Navajo) on Twitter

The encampments and the #NoDAPL movement, however, have continued to grow. Nearly 300 tribes have issued letters of support, passed resolutions and sent official delegations and supplies to North Dakota. Unity marches and rallies have been held across the nation and even in other countries.

"I experienced the Camp as a 'liberated zone,' a community of thousands that fed itself, danced and sang together, and celebrated every time another tribe arrived," professor Zoltán Grossman wrote on Indianz.Com on Monday.

Dakota Access has repeatedly brought up the North Dakota case during proceedings in a different lawsuit that the Standing Rock Sioux Tribe filed in federal court in Washington, D.C. William Leone, an attorney for the pipeline partnership, has contended that Archambault and others have violated an "injunction" even though one was never in place and even though the judge in North Dakota never determined that the temporary restraining order had ever been violated.

"To continue to enjoin criminal misconduct in this civil action, under pain of a contempt sanction, would serve no legitimate purpose," Judge Hovland wrote on Friday.

On September 9, the judge in D.C. denied the Standing Rock Sioux Tribe's request for a preliminary injunction against Dakota Access. The Obama administration then followed with an extraordinary action that put a key portion of the pipeline near the reservation on hold.

Subsequently, the Standing Rock Sioux Tribe and the Cheyenne River Sioux Tribe asked the D.C. Circuit Court of Appeals to impose an injunction while the case proceeds. The court granted their request on Friday and ordered Dakota Access to cease construction within 20 miles on both sides of Lake Oahe.

"The tribe appreciates this brief reprieve from pipeline construction and will continue to oppose this project, which will severely jeopardize its water and cultural resources," Standing Rock Sioux leaders said in a statement on Friday. "We will not rest until our lands, people, waters, and sacred sites are permanently protected from this destructive pipeline."

Relevant Documents:
Decision in Dakota Access LLC v. Dave Archambault, II (September 16, 2016)

DC Circuit Court of Appeals #NoDAPL Injunction:
Order: Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (September 16, 2016)