On the final day, they trudged down the muddy hillsides in their boots and military fatigues. They came on snowmobiles, in bulldozers and in the vehicles of war: Humvees, BearCats and an armored vehicle built to withstand explosions in Iraq.
They were searching for the last resisters.
For 10 months, the three camps of Native Americans and their supporters had held their ground along North Dakota’s Cannonball River against the 1,172-mile, $3.8 billion Dakota Access Pipeline. At its peak, as late as December, the camps near the Standing Rock Sioux Reservation were inhabited by up to 10,000 self-proclaimed water protectors. Then came brutal blizzards, minus-18-degree nights, floods looming with the spring thaw and a temporary government reprieve ripped to shreds by a new president.
By the time the governor’s eviction order was carried out last week, the Oceti Sakowin camp population had been whittled down to a few dozen holdouts.
Police clad in riot gear surrounded tents and teepees, evoking images of the United States Cavalry as they poked their weapons through teepee flaps. Law enforcement and company helicopters thundered overhead.
This militaristic presence in the Northern Plains was made possible by the taxpayers of North Dakota. State officials borrowed tens of millions of dollars from the Bank of North Dakota, effectively pitting state police, the North Dakota National Guard and sheriff’s deputies from seven states against overwhelmingly peaceful protesters.
The rest of us have picked up the tab for additional forces, many of whom showed up recently as backup: the Border Patrol, National Park Service rangers, Bureau of Indian Affairs police.
That means taxpayers essentially are financing a massive protection force for the Fortune 500 company Energy Transfer Partners – clearing the way for its crews to lay oil pipelines for the project’s final phase.
Few North Dakota officials have criticized this use of public funds. A rare exception is Democratic state Sen. Tim Mathern, who said, “We are using public and military employees to do the private work of a pipeline company.”
There’s another cost as well. Last week’s evictions were carried out with minimal violence. But camp medics report that over the last 10 months, they have treated at least 1,000 people for chemical poisoning, hypothermia, rubber-bullet and beanbag wounds, and other more serious injuries, all at the hands of police. Some 750 people were arrested.
Now the state faces a civil rights lawsuit and a United Nations fact-finding mission, both of which center in part on one bitter-cold November night on the Backwater Bridge.
Efrain Montalvo, a native of Mexico living in Chicago, remembers getting a desperate call on his walkie-talkie from the front line that night at the Backwater Bridge.
“The medics were screaming for help because they were overwhelmed,” said Montalvo, 25, a member of the International Indigenous Youth Council at Standing Rock.
Montalvo was one of hundreds of unarmed water protectors facing down North Dakota police at the edge of the Standing Rock Sioux Reservation on Nov. 20. The clashes began after protesters attempted to clear the bridge of two burned-out trucks that had been blocking the highway since mass arrests three weeks earlier.
That night, Montalvo looked up through white mists of tear gas, pierced by screams and shouts on the bridge. Native elders stood in front of barricades of razor wire, clutching feathers, burning prayer bundles of sage, holding their ground. To ward off clouds of pepper spray, some shut their eyes tightly, while others held up plywood shields or the tops of plastic bins.
Police recall shouting, “Disperse!” Others say the order to disband never came. All agree that police soon unleashed a fire hose, soaking protesters in the subfreezing temperatures. Icicles formed in their hair. Their winter coats crunched.
Montalvo moved swiftly toward the front line, carrying bottles of water and Milk of Magnesia to relieve the tear gas sting. Police in riot gear began firing rubber bullets.
A tribal elder fell, his staff clattering to the pavement of the shutdown state highway. Then police launched a barrage of smoking tear gas canisters from grenade launchers.
“That’s when people started panicking,” Montalvo said.
A tear gas canister hit Montalvo squarely in the chest. He inhaled its smoke deeply, then wandered aimlessly, hands over his eyes. Two minutes later, he could see again. Another device exploded at his feet. He saw a brilliant white light. Then everything went black and silent.
Montalvo began shaking uncontrollably. For 10 minutes, “I couldn’t remember who I was, where I was,” he said. Medics whisked him off the bridge.
Others fared worse that night. Sophia Wilansky, 21, nearly had her arm blown off. Vanessa Dundon, a 32-year-old Navajo, was hit in the face with a tear gas canister. The impact badly damaged her retina, requiring three surgeries to try to regain sight in her right eye.
Days later, Montalvo said he still could taste the tear gas in his mouth.
For a short and heady time, it appeared the water protectors would prevail. On Dec. 4, just after thousands of veterans arrived to stand with Standing Rock, the U.S. Army Corps of Engineers denied an easement for the pipeline to cross under the Missouri River while it undertook an environmental impact statement.
The Standing Rock Sioux Tribe declared victory. Celebrations erupted in the camps. A lot of people went home.
Two months later, on the orders of President Donald Trump, the corps reversed itself, announcing final approval of the pipeline project. Construction crews resumed work almost immediately, despite vows by the Standing Rock and Cheyenne River Sioux tribes to stop the pipeline in court to prevent contamination of the Missouri, a source of water for the Sioux people and at least 10 million others downstream.
But by then, the collective population of the three protest camps had fallen into the hundreds, not nearly enough to disrupt construction crews and the police lines protecting them. As the Feb. 22 deadline to evacuate the camp drew near, police, military and private security vehicles moved into formation, poised on the ridges nearby.
In a press conference the night before the final sweep, Republican U.S. Sen. John Hoeven of North Dakota praised the joint police force, which he said had shown “incredible restraint.”
Yet the federal class-action civil rights lawsuit filed in November, largely over the Backwater Bridge incident, accuses North Dakota officials of excessive police force in “an increasingly violent campaign … to suppress and chill Plaintiffs’ constitutionally protected rights.”
More than 100 people – in the lawsuit’s sworn statements, dozens of interviews for Reveal and testimony before the United Nations working group recently invited to Standing Rock – have corroborated the accounts of Montalvo, Dundon and others.
Witnesses to the Backwater Bridge confrontation and others like it describe being shot in the face and head or pelted by munitions. They recount watching law enforcement “hit people with batons … forcefully (pushing) people onto the concrete” and spraying them “at point-blank range with high-pressure chemical sprays in the face.”
Others said Native elders were tear gassed as they knelt or stood in prayer, including one man “who was sprayed continuously for two to five minutes” but did not budge. Another young man was soaked for several minutes in subfreezing temperatures with the high-powered police hose, “and he just continued to sit there praying,” a witness said.
“There is no doubt that law enforcement used life-threatening crowd-control weapons excessively and indiscriminately,” said Jamil Dakwar, director of the human rights program for the American Civil Liberties Union. Dakwar recently traveled to Standing Rock to facilitate testimonies for the U.N. Working Group on business and human rights, which will prepare a report for the U.N. General Assembly.
In November, U.N. officials decried North Dakota’s use of force as excessive, adding that they were alarmed at “the criminalization of indigenous peoples in their peaceful attempts to safeguards their human rights and fundamental rights.”
In its response to the civil rights complaint, state officials countered that the protesters engaged in riots and that officers frequently were “faced with bodily injury or death.” In many cases, however, police in riot gear, holding plastic shields, have been protected behind concrete barriers and layers of concertina wire.
Officials acknowledge most protesters were nonviolent but cite “a very active and sizeable minority of protesters (who) take pride in trampling upon the rights of others, and in terrorizing citizens and Law Enforcement through threats and acts of violence.”
In some cases, protesters have thrown logs or sticks at officers or tossed tear gas canisters back across police lines. Police accused one woman of discharging a weapon at a demonstration; her case is pending. Protesters have chained themselves to construction equipment and have been charged with burning equipment.
Protesters say they have acted in response to what they believed was infiltration of their movement. During mass arrests Oct. 27, a protester’s truck rammed an unmarked pipeline company pickup, forcing it off the road. As police and protesters clashed a mile north, the pickup crossed protest lines, the driver speeding toward the main camp with a loaded assault rifle.
Police also claim that protesters have thrown bags of feces at officers, which protesters vehemently deny. Previous police claims that protesters wielded pipe bombs or bows and arrows later were recanted by a North Dakota sheriff during a confrontation recorded in late October.
The response from North Dakota lawmakers has been to get tough. Gov. Doug Burgum recently signed a law making it a crime to wear a mask during demonstrations. Other bills awaiting his signature would sharply increase fines and prison time for riot offenses, the label authorities have given the pipeline protests. A bill still in committee would make it a felony to cause $1,000 or more in damages while committing a misdemeanor, which can include some acts of protest.
“This is about public safety,” Republican Rep. Al Carlson, the House majority leader, said of the bills.
Linda Black Elk, a member of the Standing Rock Medic and Healer Council and a professor at Sitting Bull College on the reservation, is incredulous.
“North Dakota,” she said, “has lost its mind.”
On the day the Army Corps of Engineers issued its final approval for the pipeline, a federal judge in Bismarck denied the protesters’ request for a preliminary injunction against police.
“The Plaintiffs and pipeline protesters had no constitutional right to be present and engage in civil protest on the Backwater Bridge,” U.S. District Court Chief Judge Daniel Hovland wrote Feb. 7.
He agreed that the majority of the protesters were nonviolent, but cited “a sizeable minority of protesters who can best be categorized as a group of unlawful and violent agitators who are masked up; terrorize law enforcement officers with taunting, threats, and acts of violence; and whose primary purpose is to simply create chaos and mayhem. To describe these agitators as ‘peaceful and prayerful’ defies common sense.”
Hovland is described as fair-minded by lawyers who have worked in his court. But he has a reputation for standing firmly with the interests of the state. He allowed police and state employees to redact their names from sworn statements about Standing Rock, fueling the narrative of law enforcement under siege.
The case will continue in federal court, likely for at least another year.
Hovland’s ruling has not quieted criticism of law enforcement tactics at Standing Rock, which have drawn some concern from across the normally unbreachable blue line.
A former Baltimore police commissioner called the police actions excessive, citing an unnecessary use of force. In a statement filed by plaintiffs in the civil rights lawsuit, Thomas C. Frazier accused police of “deliberately (inflicting) physical punishment” when the proper action was to arrest protesters.
“There is no legitimate reason to continue using force on demonstrators who are simply nonviolently disobeying a dispersal order once it is clear that they are determined to hold their ground until arrested,” he said.
After reviewing sworn statements and videos in the civil rights complaint, Frazier said he had “never seen, in any other American city or county, the use of water hoses or a water cannon against a United States citizen for any reason although I have read about this occurring in the early 1960s against civil rights marchers.”
“The brute force of the impact of the water jet is a force option that would not be considered appropriate by most modern police chiefs or sheriffs, or tolerated by their citizenry. In this case, the use of this device in sub-freezing temperatures, in my opinion, serves no reasonable purpose and can only be considered a retaliatory and punitive action.”
As the world watched via live stream last week, the restraint Frazier called for seemed to be on display. Police did not use tear gas, rubber bullets, beanbag rounds or sound cannons to expel the protesters this time. Nor did they use water hoses to douse them as they had Nov. 20, when temperatures dropped to 22 degrees.
A spokesman for the Morton County Sheriff’s Department, Rob Keller, said that because of the lawsuit, he could not comment on Frazier’s remarks, nor would he describe his agency’s protocol for use of force. In a December email, however, Keller wrote that use of force must be “objectively reasonable and utilized only to the degree reasonably necessary to accomplish a legitimate law enforcement purpose.”
Dakwar, with the ACLU, blasted the “resounding lack of accountability for law enforcement agents and commanders.”
“Thus far, no officer has been charged with excessive use of force, but over 600 protesters and even journalists have been arrested for excessive and outrageous charges like criminal trespassing,” he added.
Journalist Jenni Monet, on assignment for Indian Country Today and Reveal from The Center for Investigative Reporting, was arrested Feb. 1 while covering a police sweep of a rogue protest camp near Standing Rock. She was charged with criminal trespass and engaging in a riot.
The first $6 million loan to confront the pipeline protests came in September, earmarked as disaster costs, a few weeks after then-Gov. Jack Dalrymple declared a state of emergency.
North Dakota officials overwhelmingly approved the request and subsequent amendments. One of those was the first bill new Gov. Doug Burgum signed in January.
In all, the state has borrowed $40 million and spent more than $33 million of it.
So far, state taxpayers have borne the brunt of the bill, which includes $9.2 million for National Guard pay and per diem, $3.1 million for the state Highway Patrol, $4.4 million for state and county police from outside North Dakota and nearly $3.5 million in supplies, including at least half a million dollars for security supplies and more than $354,000 for cameras, according to official state documents such as internal memos, emergency budget requests and expenditure reports.
Tim Mathern was the lone dissenter in a recent Senate committee vote to authorize the bank line of credit.
“The North Dakota taxpayers are at risk for paying the bill of a multinational corporation that’s extracting our resources,” he said. “I mean, this just gets more and more difficult to believe the closer I get to these details.”
The new funds may also serve to justify an expansion of North Dakota’s police force and state-of-the-art military supplies. The expenditure, Mathern said, creates “an opportunity for these law enforcement agencies to gain more support,” including more riot gear and a new radio communications system.
Among the other details Mathern and the documents verify: $1.4 million to the state Department of Health, in part to increase insurance benefits for National Guardsmen, some of whom have complained of respiratory problems since being deployed to Standing Rock.
Mathern wanted to know more about what the state was paying for, so he traveled to Standing Rock on Jan. 27 to visit the police line just north of there.
“I was taken aback by all the machinery,” Mathern said of the military and police vehicles. “I had never seen so much.”
Police would not allow Mathern to cross their roadblock and head south toward the protest camp near Standing Rock. Mathern said colleagues had asked him not to go, warning that he could be injured or killed by protesters – sentiments he attributed to a “wave of racism that is being accentuated and institutionalized in Bismarck and Mandan.”
So Mathern drove across gravel roads, arriving at the main Oceti Sakowin camp, where he met with activists.
“It would be wonderful if we could use all this money to help people,” he said in an interview two days later. “Considering the vulnerability of people living in this area, I can’t believe all the military might the state and county is funding with taxpayer dollars.”
At its height last summer, the Oceti Sakowin camp was a village, with kitchens, a medical center, food and clothing storehouses, a grade school, horse corrals, a sacred fire circle and thousands of people living in tents, yurts, trailers and teepees. It was bigger than all but nine cities in North Dakota.
By the afternoon of Feb. 23, when the last protester was expelled, few remnants of the village remained: bent rods on which flags of 300 tribal nations had flown, mounds of abandoned clothes, a whiteboard with guidelines for nonviolent direct action.
“I am very happy to say that we finally introduced rule of law in the Oceti camp,” Morton County Sheriff Kyle Kirchmeier said in a statement issued that night.
By then, a frigid wind blew through camp, with no one around to notice it.