The National Congress of American Indians has filed a brief in support of injured Dakota Access pipeline protesters suing North Dakota police, saying excessive use of force poses a threat to all tribes struggling for recognition of treaty rights.
In a proposed amicus brief filed Friday, the NCAI urged a federal judge in North Dakota to reject summary judgment, saying that law enforcement officials have mischaracterized the demonstrations as “riots” and “mayhem” in an effort to justify their “reprehensible” behavior.
According to the brief, Vanessa Dundon and the eight other named plaintiffs were unarmed and did “absolutely nothing to endanger public safety” when they were injured by police on a bridge in Cannon Ball, North Dakota, one mile north of the Standing Rock Sioux Reservation. Instead, the NCAI said, law enforcement initiated and escalated a series of violent confrontations starting in the summer of 2016 that left demonstrators with broken bones, lacerations, contusions, severe chronic pain, permanent vision loss and a detached retina.
Dundon and her co-plaintiffs sued Morton County and county Sheriff Kyle Kirchmeier, Stutsman County and county Sheriff Chad Kaiser, and the city of Mandan and city Police Chief Jason Ziegler in November 2016.
The named officers and their respective police forces in April 2018 asked the judge to dismiss the suit, arguing that the protesters failed to state a claim and that even if they did, officers are granted immunity from such suits. They later converted their motion for summary judgment on the same grounds.
In their arguments before the court, officials “go to great lengths to justify themselves by mischaracterizing the movement plaintiffs participated in as violent and dangerous,” NCAI said Thursday, noting that their “motion for summary [judgment] advocates for granting impunity to governments and law enforcement officials who deliberately trample on the civil liberties of Americans when those civil liberties are exercised in support of locally, or historically, unpopular views or beliefs.”
“So long as the U.S. Constitution continues to refer to treaties as the ‘supreme law of the land,’” said the NCAI, “local, state, and county law enforcement cannot resort to excessive force to silence those who exercise their First Amendment rights and advocate that the United States uphold its treaty and trust duties and responsibilities.”
From the outset, according to the brief, “North Dakota took a militarized approach to a nonviolent, lawful protest,” arresting the chairman of the Standing Rock Sioux Tribe and 17 other demonstrators in August 2016 and setting up a roadblock to interfere with out-of-state supporters trying to reach the camp from the state highway. The governor followed with a state of emergency declaration.
On the Saturday before Labor Day, Dakota Access “maliciously” sent its bulldozers directly to human graves that the tribe’s former historic preservation officer had identified in federal court the day before; and when peaceful protesters were met with violence at the hands of a private security force, “complete with attack dogs leashed by unlicensed and incompetent handlers from an unregistered security company,” law enforcement failed to intervene, the NCAI said.
Less than two months later, according to the brief, law enforcement officials rolled up on the protesters’ “water protector camps” with military vehicles and riot gear, and “shot pepper spray, tear gas, and a sound cannon” at the nonviolent protesters.
The violence reached “new, devastating heights” on Backwater Bridge that November, when police turned high-pressure water hoses against peaceful protesters in below-freezing weather, and shot chemical agents and “stinger” grenades indiscriminately into the crowd without giving warning or opportunity to disperse, the NCAI said.
“If the excessive force used to silence plaintiffs’ protected speech stands, the ability of all NCAI member tribal nations to peacefully exercise their First Amendment rights — without risking injury from life-threatening, excessive police force — will be greatly undermined,” the brief said. “NCAI therefore has a unique interest in advocating for the protection of the constitutional rights of plaintiffs to speak peacefully in support of tribal sovereignty, treaty rights, and the preservation of Native American sacred sites and burials.”
Counsel for the parties did not immediately respond to requests for comment Monday afternoon.
The proposed class is represented by Rachel Lederman of Alexsis C. Beach & Rachel Lederman, Melinda Power of West Town Law Office and Mara Verheyden-Hilliard of the Partnership for Civil Justice Fund.
The officers are represented by Randall J. Bakke, Shawn A. Grinolds and Bradley N. Wiederholt of Bakke Grinolds Wiederholt.
The case is Dundon et al. v. Kirchmeier et al., case number 1:16-cv-00406, in the U.S. District Court for the District of North Dakota.
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