Governments That Are Occupying Land Are Criminalizing Indigenous Peoples for Occupying Land

Joye Braun knows a thing or two about fighting pipelines—she’s been on the front lines of Keystone XL and at Standing Rock, and she’d be at Line 3, too, if it weren’t for the pandemic.

The self-described “elder-in-training” and member of Cheyenne River reservation in South Dakota also knows all too well how land defenders and water protectors are criminalized, often brutally, for peacefully standing up against oil and gas and other industries.

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It’s what we’re seeing unfold in Minnesota right now, she said, as water protectors mobilize against Enbridge’s Line 3 pipeline, a project that U.S. Rep. Ilhan Omar has urged President Joe Biden to stop.

Braun said she already knows of a young Anishinaabe woman who was praying at Line 3 when a cop pulled a gun on her head before arresting her. Braun said she’s worried just as many people will be arrested at Line 3 as at Standing Rock. According to the National Observer, activists say drones have surveilled them, while others have been detained in cages. More than two dozen people were arrested on site last month.

Enbridge has allegedly paid the police and other public safety groups at least $900,000, the Intercept reported. Police “are being incentivized to carry out the goals of a foreign corporation, and they’re being taken care of for doing it,” said Mara Verheyden-Hilliard, a lawyer representing Line 3 pipeline opponents. This year alone, Minnesota introduced six bills aimed at stifling dissent, including against pipelines. All are pending, according to the International Center for Not-For-Profit Law, but Braun is undeterred.

“When we go out on the line we always say we are unarmed. We don’t bring guns, we don’t bring weapons, we don’t bring knives. We’re armed with prayer; we’re armed with unity. We count on our ancestors to protect us,” Braun said.

Since 2016, water protectors and their supporters have organized at Standing Rock to fight the Dakota Access pipeline, a 1,172-mile-long oil pipeline that runs underground, starting from the Bakken oil fields in North Dakota, and running through South Dakota and Iowa all the way to Illinois.

“This monster wanted to come right through our reservation and we said, ‘Hell no,’” said Braun, one of the lead #NoDAPL organizers.

The Water Protector Legal Collective reported 837 related state criminal cases in North Dakota. Braun remembers how officers surveilled the camp non-stop, in helicopters and on the ground. “I saw them break arms; I saw them throw tear gas, and push us back,” Braun said. In November 2016, they infamously used water cannons against water protectors in freezing temperatures. Private security sicced attack dogs.

Law enforcement also allegedly defecated and urinated on a pile of sacred items—pipes, bundles, and other items. “I’ve never understood how human beings can do that, but they did,” Braun said. “It is sickening.”

Since Standing Rock, crackdowns on land defenders, water protectors, and protesters have only ramped up, with the past half decade marked by a spike in proposed anti-protest bills all aimed at curtailing dissent across the U.S—and Canada, too.

According to the International Center for Not-For-Profit Law, since November 2016, 45 U.S. states have considered anti-protest bills, with 17, including the Dakotas and Texas, already enacting 28 of them. Many of the bills prohibit protests near “critical infrastructure,” a term criticized for its vagueness, but that typically lists pipelines and other resource extraction sites as examples. Canada’s conservative hotbed, Alberta, has also legislated a Critical Infrastructure Defence Act, while Manitoba, also led by conservatives, is considering an act that would make people who enter critical infrastructure sites liable to a $5,000 fine and up to 30 days in jail for every day they trespass.

“A lot of legislators have unfortunately and undemocratically decided rather than engage with the message of a particularly powerful or evocative protest, they try to silence it,” said Vera Eidelman, an ACLU staff attorney with the speech, privacy, and technology project. She added they also target Black Lives Matter protests.

Before introducing a “riot-boosting” bill in 2019, South Dakota Republican Governor Kristi Noem met with TransCanada, which was behind the now squashed Keystone XL pipeline, as well as law enforcement and other stakeholders to “develop legislative solutions that allow for an orderly construction process of (KXL) pipeline and others,” a South Dakota news release from the time says.

The “riot-boosting” bill would criminalize a person who “does not personally participate in any riot but directs, advises, encourages, or solicits other persons participating in the riot to acts of force or violence.”

The legislation also included a section on how the money collected from “riot-boosting” fines can cover law enforcement and pipeline costs—effectively making land defenders pay for pipelines.

“It was one of the most dangerous laws I’ve seen,” said Stephen Pevar, a senior staff attorney with the ACLU’s racial justice program whose team successfully argued in federal court that part of the legislation was unconstitutional.

“You wouldn’t even have to encourage somebody to engage in violence or hand out weapons or speak at a rally,” Pevar said. “All you would have to do is voice an opposition to something and you could be arrested.”

Noem didn’t consult with Indigenous communities and climate activists when developing the legislation, according to court documents filed by Pevar’s team.

While the legislation was struck down, South Dakota still boasts a collection of bills that limits protests. For instance, a person can face two years in prison and $4,000 in fines if there is “substantial interruption or impairments” to critical infrastructure.

Nick Tilsen, the president of the NDN Collective, an Indigenous-led organization for Indigenous power, and one of the plaintiffs who fought against Noem’s riot-boosting bill, said South Dakota isn’t an exception.

Tilsen, a citizen of the Oglala Lakota Nation, faced his own criminal charges after he and about 150 fellow land defenders used bodies and vans to block a road into Black Hills, also known as Mount Rushmore, last July during a visit from former President Donald Trump.

“For Lakota, Black Hills are one of our most sacred places—our creation story comes from Black Hills,” Tilsen said. There is an ongoing movement demanding a return of the Black Hills to Sioux peoples.

Riot police with shields pushed against the group and pepper spray was used on at least 10 people after the blockade was deemed unlawful, the Rapid City Journal reported.

Police with riot gear and shields at the Black Hills blockade last July. Photo courtesy of NDN Collective

In the end, Tilsen was arrested and charged with second-degree robbery and grand theft after allegedly stealing a National Guard officer’s shield. “In the process of being hit with a police shield, I ended up with one and used it to protect myself and those around me,” Tilsen said. “We did deface it: we crossed out ‘police’ and wrote ‘land back’…We’re saying we don’t want to live in a colonial, police-militarized state.”

Tilsen was also charged with three misdemeanours—unlawful assembly, disorderly conduct, and impeding a highway—as well as two counts of simple assault against National Guard officers. Tilsen denies assaulting an officer, but in South Dakota, even a “threat to put another in fear of imminent bodily harm, with or without the actual ability to harm” can result in such a charge. All charges will be dropped after Tilsen completes a diversion program.

When states and provinces ramp up attempts to constrict protest, it’s proof they’re reacting to the successes of social justice movements, Tilsen said.

“These are last ditch efforts…This onslaught of legislation is a direct result of the people uprising,” Tilsen said. “There is consciousness growing around the protection and preservation of the environment…There needs to be an era or repair for Indigenous people and people of colour.”

“We are in active dismantling of white supremacy and this is their fear.”

In Canada, the same stories are replaying, and Indigenous land defence is frequently met with militarized policing (see: Oka Crisis and Gustafsen Lake). More recently, at 1492 Land Back Lane, a land reclamation camp working to stop a housing development in southern Ontario on land that was proclaimed Haudenosaunee territory via treaty almost 250 years ago, police have used tasers and shot rubber bullets against land defenders.

At Wet’suwet’en, hereditary chiefs and their supporters have spent years fighting the CA$6.6 billion Coastal GasLink pipeline that cuts through the Indigenous nation’s unceded ancestral territory in northern British Columbia. RCMP officers moved in on land defenders early last year and made several arrests in Wet’suwet’en territory and among their supporters elsewhere.

Alberta effectively banned pipeline protests following Wet’suwet’en, unsurprising for a province where four of the top 10 political donors between 2004 and 2016 were from the oil and gas industry.

Brielle Beardy-Linklater, a Cree two-spirit activist living in Winnipeg, is watching as Manitoba mulls its own critical infrastructure legislation.

These bills threaten the ecosystems we all rely on, she said. “Why can’t we build societies that see land and water as a part of us and maintain that for future generations so they can benefit? It’s completely nonsensical.”