A Story of Court Solidarity in the #NoDAPL Divestment Movement

Water Protectors Stand in Solidarity Outside the ND Federal Building (Rob Wilson Photography)

Water Protectors Stand in Solidarity Outside the ND Federal Building (Rob Wilson Photography)

This is a true story of direct action and effective use of court solidarity tactics by water protectors fighting the Dakota Access Pipeline.  It is a simple example of one way that comrades can remain in solidarity while navigating the legal system.  We hope this story helps build a culture of shared responsibility for defending our movements against State repression.  The frontlines are everywhere.

In December, 2016, as the resistance camps at Standing Rock swelled, a group of water protectors shut down a bank in a major US city.  Two locked their bodies together through a heavy steel table in the middle of the branch, forcing the bank to end business for the day.  Their comrades spoke out and offered prayer, drum, and song.  The bank’s corporate staff came to the scene to negotiate and the locked down water protectors made it clear they would not unlock unless the bank agreed to cancel its investment in the pipeline.  The protest grew on the busy commercial street outside, and after several hours, the Fire Department finally extracted the WPs without injury using a Jaws-of-Life to cut apart the table, and power tools to cut open the lockbox.   They were arrested and taken to jail, charged with misdemeanor trespass, and released on bond later that night.

This action was one of dozens all over the world that day, in response to a call from Indigenous groups at Standing Rock to make December a month of relentless direct action against banks funding DAPL.  The action was relatively small and simple, but helped kick off a campaign that has already successfully divested almost $5 billion from DAPL’s banks, and is still growing fast.  Cities, tribes, businesses, individuals, and 3 banks have all severed financial ties to the project, and divestment energy is spreading to other pipeline fights.   People are doing what governments refuse to do – destroy the oil and gas industry.

As the 2 water protectors faced trespass charges in court, they insisted on navigating the legal system together.  For the most part, the entire legal process is designed to isolate people and discourage solidarity, but there are ways to push back.  (There are also times when it is strategic to separate from one’s co-defendants in order to avoid guilt-by-association.)

In this case, one water protector was white and one was Native.  Here’s what court solidarity looked like for them:  First, because the Native WP remained at Standing Rock until the bitter end and wasn’t able to travel to court, the white WP went alone to 6 court dates, each time asking for a continuance.  Second, they used that time to find a good lawyer and sign “conflict waivers” that would allow him to represent them both, by assuring the lawyer’s organization they were not concerned about one testifying or cooperating with the State to the detriment of the other.   Third, they eventually convinced the State to join the cases and quash the warrant that had been issued for the Native WP’s arrest for failure to appear.  And fourth, they made it clear to the lawyer that neither would accept a deal unless the same deal was also offered to his comrade, and that all decisions would be made together, with mutual consent, even if they chose different outcomes.  (Lawyers without movement experience are often unfamiliar with court solidarity principles because they have been trained to promote the isolation that the courts want).

In this case, the stakes were relatively low, the case was relatively straightforward, and inconsistent treatment by the courts was relatively unlikely since neither WP had a significant prior criminal record.  But courts are racist institutions.  So these WPs stuck to the fundamentals of court solidarity, even though it wasn’t clearly necessary and it wasn’t obvious how it would help them.  In the end, their efforts paid off.

At the pre-trial hearing, when it came time for negotiations with the State, it just so happened that because of the high volume of cases that day, two prosecutors had split the stack of files in half alphabetically.   A white prosecutor with a reputation for harsh sentences had the Native WP’s case, and a prosecutor of color with a reputation for leniency had the white WP’s case.  The lawyer saw this opportunity and exploited it.  He first asked the white prosecutor to explicitly confirm he had no justifiable reason to treat the two defendants differently.  Then he negotiated with the prosecutor of color and got him to eliminate the fine and jail time from the white WP’s plea bargain offer.  Then he went back to the white prosecutor, who was angered by his colleague’s decision but now had no choice but to begrudgingly give the Native WP the same deal.   Both walked away with a simple continuance for dismissal - their cases are postponed and if after 1 year they haven’t had any similar arrests, the charges will be dismissed.  If they do get arrested again, this case could be re-opened and they could still plead not guilty and take it to trial, together.

Part of strong movement defense is applying the principles of solidarity to everything we do, including our navigation of the criminal injustice system.  Court solidarity is often simple, but it takes intention and persistence.  This is an example of 2 water protectors sticking together, and a smart lawyer using that solidarity to win them both the best possible legal outcome.

Freshet Collective