Thursday, December 7, 2017
On December 4, President Trump announced that he would dramatically downsize two Utah
National Monuments - Bears Ears by 85 percent and the Grand Staircase-Escalante by roughly half. The reduction, totaling two million acres, represents the biggest rollback of federal designated land protection in U.S. history. The Bears Ears monument is home to an estimated 100,000 Native American archeological and sacred sites. President Obama designated Bears Ears in 2016, while the Grand Staircase-Escalante was protected by President Clinton in 1996, both under the Antiquities Act, a 1906 law that allows presidents to unilaterally set aside public lands to protect “objects of historic and scientific interest.” In contrast, National Parks are designated by acts of Congress.
The announcement came a week after Trump sparked controversy during a ceremony honoring World War II veteran Navajo code talkers by reviving his feud with Senator Elizabeth Warren, indirectly referring to her as “Pocahontas,” an intended slur that offended the families of the code talkers. Critics also questioned the optics of holding the ceremony against the backdrop of a portrait of Andrew Jackson, whose bloody enforcement of the Indian Removal Act caused thousands of Native American deaths.
Hours after the announcement, opponents hit back. A coalition of five Native American tribes - Hopi, Navajo Nation, Ute Mountain Ute Tribe, Pueblo of Zuni and Ute Indian- filed suit to block the move. According to Native American Rights Fund (NARF) attorney Matthew Campbell, “Bears Ears is one of the most important places for Indian Country, and that is why Indian Country came together to advocate for this important place. Trump’s attack on Bears Ears is an attack on all of us, and we will fight to protect it.” The tribes argue that the Antiquities Act allows a president to designate but not to revoke monument status, and that Trump has exceeded his authority by curtailing the monuments so sharply that he has in effect eliminated their protections. Trump’s move is not unprecedented – previous presidents have made much smaller reductions, but their right to do has never been tested in court. The move bodes ill for Trump’s respect for Native sovereignty. As NARF points out, “This latest action follows on the heels of the Administration’s other actions against Tribes: (1) issuing the permit to the Dakota Access Pipeline, (2) issuing the permit to the Keystone XL, and (3) revoking the Executive Order to protect the Bering Sea on April 28th. Tribes vigorously opposed all of these efforts. The Administration uses the term “tribal sovereignty” but clearly does not understand what that means.”
The same day, Earthjustice filed suit on behalf of a group of environmental and conservation organizations, including the Wilderness Society, the Natural Resources Defense Council, the Sierra Club and seven others, claiming that the decision to shrink the size of Grand Staircase-Escalante was unlawful. “While past presidents have used the Antiquities Act to protect unique lands and cultural sites in America, Trump is instead mangling the law, opening this national monument to coal mining instead of protecting its scientific, historic, and wild heritage,” said Earthjustice’s attorney Heidi McIntosh.
The outcome of the litigation will have far-reaching implications for the preservation of natural resources, including whether the designation of national monument status will be rendered effectively meaningless if it can be easily reversed by subsequent administrations. In making the announcement, Trump said “public lands will once again be for public use.” But as NARF’s Executive Director John Echohawk sees it, the reality is that the lands will provide private benefits instead, with potentially damaging environmental and cultural consequences. He said “It is clear that Trump’s attack on Bears Ears is motivated by his desire to undo decisions made by his predecessor, but also to grant political favors to the Utah politicians who would see our sacred lands plundered for short-term economic gain that could come from drilling for oil and mining for uranium.”
Sunday, October 8, 2017
In anticipation of the United Nations Special Rapporteur on extreme poverty and human rights’ country visit to the U.S. in December, the International Corporate Accountability Roundtable sent a submission addressing the Poverty Impact of Corporate Influenced Trade Policy in the United States. ICAR argues that “[g]iven the relationship between trade, poverty, and the enjoyment of human rights, it is critically important to examine how trade policy is developed in the United States, who is sitting at the negotiating table, and what impacts these policies are having on the realization of human rights” The submission focused on communities ravaged by trade policies, including the loss of millions of jobs and its deleterious impact on struggling families, many of whom live below the federal poverty line. Those communities are further harmed by depleted local coffers that result in decreased public spending, which in turn impedes access to public infrastructure and welfare systems. Through their focus on the benefits to corporations, ICAR argues, U.S. trade policies ignore the damaging impact on human rights, including the right to an adequate standard of living and the right to health. ICAR recommends several policy shifts aimed at prioritizing the consideration of human rights in trade policy, including increasing transparency and participation by affected communities, the development of mechanisms to conduct human rights impact assessments, the development and implementation of laws and policies that address the prominence of corporate influence in trade policymaking, and undertaking an analysis of and efforts to redress shortcomings in the Trade Adjustment Assistance (TAA) program.
On another front, last month a group of NGOs including ICAR, EarthRights International, Greenpeace, the AFL-CIO and the Institute for Policy Studies wrote to the US the Trade Representative Robert Lighthizer, who is in the process of renegotiating NAFTA. The organizations ask him to safeguard the goals of addressing the Agreement’s harms and that revisions benefit “the economies and populations of the United States and of our trading partners.” They letter cites the Ambassador’s previous statement that central to that objective is ensuring that “dispute settlement provisions [be] designed to respect our national sovereignty and our democratic processes.” The organizations “support this negotiating objective and therefore urge the United States to reject and remove the investor-state dispute settlement system (ISDS) under Chapter 11 of NAFTA that empowers multinational corporations to undermine U.S. sovereignty and the United States government’s efforts to enact policies to protect the public interest, human rights and the environment.” In closing, the letter exhorts the Ambassador to honor the “growing international consensus that in order for trade and investment to be fully beneficial to all, international investment agreements must not undermine human rights and environmental protections.”
Thursday, September 7, 2017
Several recent reports advance the conversation about corporate accountability.
Amnesty International and the Business & Human Rights Resource Centre released the report Creating a paradigm shift: Legal solutions to improve access to remedy for corporate human rights abuse on September 4. The report, which follows up the proposals contained in Amnesty’s 2014 report Injustice incorporated: Corporate abuses and the human right to remedy, sets out an agenda for legislative reform, focusing on parent company liability, Forum non conveniens and the Mandatory Collection and Disclosure of Information. The study explains that “A number of significant legislative initiatives in the last two years point to the beginning of a paradigm shift. Those driving legal reform must keep this momentum going and capitalise on the various legislative advances by tailoring proposals to their particular legal system, even if change is achieved through incremental steps over time. The aim of this publication is to highlight those legislative developments and fuel further legislative solutions to improve access to remedy for corporate abuses.”
In August, a report commissioned by a group of NGOs was published, Removing Barriers to Justice: How a treaty on business and human rights could improve access to remedy for victims. The report is aimed at supporting the mission of the Inter-Governmental Working Group on business and human rights, established by the Human Rights Council in 2014 “to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” The report examines five case studies that document the challenges facing victims and identifies areas for reform. It concludes that “There are fundamentally two levels at which the Treaty can deliver change. The first recognizes that the majority of the barriers identified in this report exist at the national level, that is, within domestic law. Therefore change needs to happen at the level of domestic law reform in multiple countries if these barriers are to be effectively removed. The second approach calls for something more radical, by placing binding obligations on businesses, and backing that up with some form of monitoring, supervisory or judicial body at the global level. There are good arguments in favour of either approach. It is possible, and may be desirable, to pursue both strategies under the Treaty, calling upon States that ratify it to both amend their domestic law and to pave the way to an international supervisory regime.”
And a timely study reported in the journal Climate Change on September 7 traces the connection between climate change and specific fossil fuel producers. Study co-author and professor of geosystem science at the University of Oxford Myles Allen explains the importance of the findings: “This study provides a framework for linking fossil fuel companies’ product-related emissions to a range of impacts, including increases in ocean acidification and deaths caused by heat waves, wildfires and other extreme weather-related events. We hope that the results of this study will inform policy and civil society debates over how best to hold major carbon producers accountable for their contributions to the problem.”
Monday, August 14, 2017
Two psychologists who helped design the CIA’s post 9/11 torture program will face trial, U.S. District Court Judge Justin L. Quackenbush ruled on Monday, in Spokane, Washington. The American Civil Liberties Union brought the suit, Salim v. Mitchell, against James Mitchell and John “Bruce” Jessen, on behalf of Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud, and the estate of Gul Rahman, who died while in custody. According to the ACLU, the man “were subjected to severe physical and psychological abuse including prolonged sleep deprivation and nudity, starvation, beating, water dousing, and extreme forms of sensory deprivation – methodically administered with the aim of psychologically breaking their will.” The CIA paid the two psychologists and their company $81 million. The trial is scheduled to begin Sept. 5.
“This is a historic day for our clients and all who seek accountability for torture,” Dror Ladin of the ACLU, who filed the suit in October 2015 along with the Gibbons law firm, said in a statement. “The court’s ruling means that for the first time, individuals responsible for the brutal and unlawful CIA torture program will face meaningful legal accountability for what they did. Our clients have waited a long time for justice.”
No other lawsuit seeking accountability for the CIA torture program has reached the merits, since the government has successfully argued in previous cases that they could not proceed because of the state secrets privilege. The Justice Department declined to raise the issue to block this lawsuit, in part because the 2014 Senate intelligence committee report disclosed many of the programs details, including the names of the plaintiffs and the interrogation techniques they had been subjected to. The judge ruled that defendants had not established that the Senate report is untrustworthy.
Sunday, June 18, 2017
On June 12, a unanimous three judge panel of the United States Court of Appeals for the Ninth Circuit declined to reinstate Trump’s revised executive order seeking a 90-day travel ban for nationals from six predominantly Muslim countries. It was the second appeals court to do so.
The administration has already appealed a decision issued last month by the Fourth Circuit to the Supreme Court. The Fourth Circuit’s decision relied on the First Amendment’s Establishment Clause, finding that the president’s action “speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”
In contrast, the Ninth Circuit relied on statutory grounds, not reaching Constitutional arguments. “We need not, and do not, reach the Establishment Clause claim to resolve this appeal,” the court opined. Contrary to Trump’s presumption of untrammeled authority, the judges ruled that “Immigration, even for the President, is not a one-person show…National Security is not a ‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power.” Trump, they found, exceeded his authority, because his justification for the ban was inadequate.
“The Order does not tie these nationals in any way to terrorist organizations within the six designated countries,” the panel wrote. “It does not identify these nationals as contributors to active conflict or as those responsible for insecure country conditions. It does not provide any link between an individual’s nationality and their propensity to commit terrorism or their inherent dangerousness.” Accordingly, the order “does not offer a sufficient justification to suspend the entry of more than 180 million people on the basis of nationality.”
The judges cited a June 5 tweet from Trump, in which he said "That's right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won't help us protect our people!" The panel cited White House press secretary Sean Spicer's confirmation that the President's tweets are "considered official statements by the President of the United States."
As former Justice Department spokesman Matthew Miller told the Washington Post, Trump has “lost on statutory grounds. He’s lost on constitutional grounds. He’s lost in the east, the west, and even on an island floating in the Pacific. He’s lost on his first order, and he’s lost on his second ‘politically-correct, watered down’ version.” And he concludes that “For a president who promised we’d get tired of all of his winning, his travel ban has been a catastrophe from day one.”
Spicer remained unbowed. “Frankly, I think any lawyer worth their salt 100 percent agrees that the president is fully within his rights and his responsibilities to do what is necessary to protect the country,” he said. “I think we can all attest that these are very dangerous
times and we need every available tool at our disposal to prevent terrorists from entering the United States.”
Despite the use of his tweet in the Ninth Circuit’s decision-making, Trump doubled down on the outbursts that hurt his case, saying on Twitter, “Well, as predicted, the 9th Circuit did it again - Ruled against the TRAVEL BAN at such a dangerous time in the history of our country. S.C.” His words may come back to haunt him, again.
Thursday, April 13, 2017
By Prof. Lauren Carasik continues our discussion on the need for self-care in the human rights community.
The lack of attention to well-being has exacted an incalculable toll on frontline human rights defenders and by extension, on the organizations and movements that sustain them. To engender robust discussion and informed responses to the failure to attend to the emotional needs of human rights workers, OpenDemocracy.net has launched a new series, Resilience as resistance: Mental Health and well-being in human rights. The series will examine “a range of critical questions and issues including: research conducted on the mental health impacts of human rights work, obstacles to advancing mental health and well-being in this field, as well as innovative approaches and strategies to prevent and alleviate the harmful effects of human rights work.” The series announcement quotes Audre Lorde, who poignantly argued that “Caring for myself is not an indulgence. It is self-preservation and that is an act of political warfare.”
Continuing our discussion on the inaugural piece, Evidence of trauma: the impact of human rights work on advocates, Meg Satterthwaite observes that although advocates often exchange harrowing tales of their work, “What is frequently left unsaid in these discussions is that trauma—direct and indirect, personal and vicarious—has a real, serious, and lasting impact on the lives of human rights advocates.” Satterthwaite describes efforts that Sarah Knuckey, Adam Brown and she have undertaken to develop “a scientific evidence base to ground efforts to respond to concerns about well-being among human rights advocates.” Their initial survey uncovered levels of post-traumatic stress disorder and burnout among human rights activists that mirrored rates found in first responders. Yet the vast majority of those surveyed reported receiving little preparation or support for the emotional toll of their work. Building on efforts already underway to identify and ameliorate the mental health costs of human rights work, Satterthwaite and her colleagues are focused on “systematically documenting and better understanding promising responses.” As she explains, “To develop such responses, we must first bring these discussions out of the shadows and embrace them for what they are: an acknowledgement of the complex perils—and deep joys—of human rights work”
In the second piece in the series, Douglas Mathew Mawadri, Fighting stigma: protecting the mental health of African rights advocates observes that “With many countries assenting to and domesticating an expanding regime of international human rights treaties in their respective jurisdictions, human rights advocates emerged over the last few decades to monitor these standards, and to take on governments, corporations, and some of the most powerfully entrenched systems on earth. But this type of confrontational work does not come without costs, some of which are personal and very steep” Mawadri identifies the “many issues blocking human rights workers in Africa from accessing appropriate mental health care, but three in particular stand out: stigma, social support, and lack of knowledge,” which must be addressed. He concludes by observing that “In a field where workers frequently experience trauma, burnout, and chronic stress, setting aside funds to proactively protect the mental health of workers would benefit the entire human rights movement. We must stop treating human rights workers as though they are expendable or invincible—we are all human after all, and activists who burn out are of no help to anyone.”
Nzik Awad contributes the third piece to the series, We cannot afford to be traumatized: the reality for grassroots advocates. As she argues, “Local human rights defenders—who are fighting to stop global companies from destroying their people's lands, or documenting horrific war crimes against their own communities, or providing aid for displaced families—are not just advocates, they are victims too. For local advocates, the passion to defend their communities' rights is far more personal and very emotional, but most of the time, their commitment to the struggles of their people exceed their limited capacities. They often make the choice to ignore their personal needs in order to ensure the survival of their communities—but this choice can come at a significant cost.” In the absence of other support, grassroots activists are often left to rely on solidarity to sustain them. “Yet we know that this is simply not enough,” Awad laments. “The international donors and human rights defenders support networks need to take measures that consider the complicated challenges encountered by local defenders. More importantly, NGOs, either local or international, that recruit community-based activists must recognize their unique status and develop strategies that understand their vulnerabilities. Only when organizations approach this issue proactively will they be able to ensure the safety, wellbeing and work stability of advocates who are also victims.”
For those interested in contributing to this important series, the guidelines are available here.
Friday, March 24, 2017
by Lauren Carasik
and Margaret Drew
The Trump administration’s failure to appear at the Inter-American Commission hearings signaled a deep disrespect for the dignity and experiences of the people whose rights were the topic of discussion. Many affected parties came to the hearings at considerable expense and inconvenience expecting, at a minimum, to present their grievances in a forum where the US would have to engage. They arrived to find that the Trump administration had decided not to participate,ostensibly due to ongoing litigation, a decision communicated to the Commission the previous day though the hearings had been long scheduled. For those affected by the Dakota Access Pipeline, this is not the first time that the Trump team has acted with disrespect. On February 7, Standing Rock Sioux Tribal Chairman Dave Archambault flew to Washington to meet with administration officials, expecting to share the Tribe’s concerns before the Army Corps of Engineers reached a final decision on the easement necessary to complete the pipeline. But he learned after deplaning that the decision had been made to issue the easement while he was en route to the meeting. The issuance of the permit before the administration’s meeting with the Tribal Chairman laid bare that the planned discussion was intended for optics rather than substance, and signaled clearly to Archambault that even if he had been afforded the opportunity to be heard, his perspective would have been inconsequential and his time poorly spent. Such disdain has deep historical roots. The administration’s refusal to participate in the hearings is yet another brazen act of dismissing the voices of those harmed by its policies. Even if Trump officials declined to comment on topics that are the subject of ongoing litigation, they could have respectfully shown up to listen. The administration’s absence deprived the speakers of a significant portion of the intended audience and conveyed the administration's indifference to their plight. But the hearings went on anyway, and thanks to activists and advocates who amplified the voices of the aggrieved, the casualty is neither their dignity nor their stories but the administration’s credibility and stature instead.
[Editors' Note: This blog is part of our symposium series on the Administration's failure to participate in the IACHR hearing on March 21. The other postings, by Deborah Weissman, Sarah Paoletti, and JoAnn Kamuf Ward, respectively, are here, here and here. Tara Melish comments here, and Rick Wilson's comments are here.]
Monday, March 13, 2017
by Lauren Carasik
On March 3, Victoria Tauli-Corpuz, the UN Special Rapporteur on the rights of indigenous peoples, issued an End of Mission Statement, following her 10 day visit to the US to study the human rights situation the nation’s indigenous peoples, with a focus on energy development projects. She lamented the failure of the government to engage in meaningful consultations with tribes, concluding that "The legislative regime regulating consultation, while well intentioned, has failed to ensure effective and informed consultations with tribal governments. The breakdown of communication and lack of good faith in the review of federal projects leaves tribal governments unable to participate in dialogue with the United States on projects affecting their lands, territories, and resources."
The UN expert singled out the flawed process with respect to the Dakota Access Pipeline:
“Many indigenous peoples in the United States perceive a general lack of consideration of the future impacts on their lands in approving extractive industry projects in particular, and a lack of recognition that they face significant impacts from development of not just their own, but neighbouring resources as well. In the context of the Dakota Access Pipeline, the potentially affected tribes were denied access to information and excluded from consultations at the planning stage of the project. Furthermore, in a show of disregard for treaties and the federal trust responsibility, the Army Corps approved a draft environmental assessment regarding the pipeline that ignored the interests of the tribe… Although the final environmental assessment recognized the presence of the Standing Rock Sioux Tribe five hundred meters away, it dismissed the risks to the reservation and failed to mention any of the other tribes that traditionally used the territory. Without an adequate social, cultural or environmental assessment, and the absence of meaningful consultation with or participation by the tribes, the Corps gave multiple domestic authorizations permitting the construction of DAPL.”
While she did recognize some positive steps towards indigenous sovereignty and self-determination, Tauli-Corpuz expressed deep concern over President Trump’s executive actions on the Dakota Access and Keystone XL pipelines, and recommended “that for any extractive industry project affecting indigenous peoples, regardless of the status of the land, the United States should require a full environmental impact assessment of the project in consideration of the impact on indigenous peoples’ rights.”
In order to move forward, the UN expert emphasized the need for reconciliation:
“The issues surrounding energy development underscore the need for reconciliation with indigenous peoples in the United States. Tribal leaders and representatives indicate that they are interested in engaging in a program of reconciliation to remedy the harms they have faced and improve the government-to-government relationship going forward. Such a program would acknowledge the historical wrongs inflicted upon indigenous peoples in the United States and confront systemic barriers that prevent the full realization of indigenous peoples' rights.”
Tuesday, February 14, 2017
In the wake of the Appeals Court setback to Donald Trump’s Executive Order to ban entry of nationals from seven predominantly Muslim countries and suspend refugee admissions, his administration began following through on its promise to crackdown on undocumented immigrants, with raids reported in 6 states, stoking terror in immigrant communities. The stepped up enforcement highlights two other EO’s on immigration that have garnered less attention than the travel bans, but will wreak their own havoc.
The EO Enhancing Public Safety in the Interior of the United States, signed on January 25, blocks funds to sanctuary cities and prioritizes the deportation of immigrants who have been convicted of or charged with a criminal offense, committed acts that constitute a chargeable criminal offense or "have engaged in fraud or willful misrepresentation in connection with any official matter," among others. After the raids began, Trump tweeted that "The crackdown on illegal criminals is merely the keeping of my campaign promise. Gang members, drug dealers & others are being removed!" But among the first deported was Guadalupe Garcia de Rayos, a mother of two whose felony consisted of using a false social security number in 2008. She came to the country as a teenager, and was detained when she attended her annual check in with Immigration and Customs Enforcement officials. Her children provided a wrenching account of their family torn asunder by their mother’s deportation.
The January 25 EO on Border Security and Immigration Enforcement Improvements also affects refugees. The order directs the Department of Homeland Security to begin building a wall between the U.S. and Mexico and ends the “catch and release” program, expanding indefinite detention for undocumented migrants, including families. Authorities can also deport those apprehended at the border immediately, although many of them have international protection needs, especially those fleeing Central America’s violence plagued Northern Triangle countries – Guatemala, Honduras and El Salvador. Trump’s order runs afoul of the country’s non-refoulement obligations. Many presenting at the border have valid asylum claims, and Mexico, which receives aid from Washington to stem the flow of migrants reaching the U.S. border, has been unable or unwilling to protect rights and safety of migrants traveling through its territory.
Conditions in the Northern Triangle countries remain dire. On January 31, the NGO Global Witness issued a report on “Honduras: The Deadliest Place to Defend the Planet.” The report found that 123 people have been killed protecting their land in Honduras since the 2009 coup that ousted democratically elected president Mel Zelaya. “Our investigations reveal how Honduras’ political and business elites are using corrupt and criminal means to cash in on the country’s natural wealth, and are enlisting the support of state forces to murder and terrorise the communities who dare to stand in their way,” said Billy Kyte, a campaigner for the organization. The report highlights the murder of indigenous and environmental activist Berta Cáceres, an internationally acclaimed human rights defender who won the prestigious Goldman Environmental Prize. Her killing elicited international condemnation. Although the Honduran government has arrested the crime’s material authors, including several who had ties to the military, Cáceres’ family denounces the state’s failure to identify the intellectual authors of her murder.
Among the recommendations in the Global Witness report are the withdrawal of U.S. security aid to the country. “As Honduras’ biggest aid donor, the US should help bring an end to the bloody crackdown on Honduras’ rural population,” said Global Witness Advocacy Director Billy Kyte. “Instead it is bankrolling Honduran state forces, which are behind some of the worst attacks. The incoming US administration must urgently address this paradox, which is fueling, not reducing, insecurity across the country.” Shortly after releasing the report, two Global Witness employees working in Honduras were widely disparaged and threatened with legal action for their work. In a statement, Amnesty International said it is “concerned that the intensity of the smear campaign against human rights defenders, and the silence of the Honduran authorities rejecting statements that stigmatize their activities, facilitates physical attacks against them.”
Despite an abysmal human rights record in Honduras, Washington continues to provide funding to the government. Until deadly violence in Honduras abates, desperate refugees will continue to flee. And if the Trump administration has its way, desperate refugees will not find protection at the U.S. border. Human rights abroad and human rights at home are often closely intertwined.
Monday, January 16, 2017
Editors' Note: The HRAH Blog welcomes Lauren Carasik, Director of the International Human Rights Clinic at Western New England School of Law. Lauren, who works with the Water Protector's Legal Collective, writes this report.
by Lauren Carasik
The Standing Rock Sioux Tribe and its supporters have largely faded from view since the Department of the Army declined to issue the easement for the Dakota Access Pipeline (DAPL) to drill under the Missouri River on December 4. The agency said it would prepare an Environmental Impact Statement (EIS) to evaluate alternative routes for the pipeline, assess the pipeline’s environmental and cultural impacts, and, notably, include an analysis of the Standing Rock Sioux Tribe’s treaty rights. Yet more than a month later, the Army Corps has not published a Notice of Intent to Prepare an EIS, prompting advocates to call on the Corps to begin the process without delay. The sense of urgency is motivated by the expectation that the incoming administration will act quickly to remove impediments to the pipeline’s completion. President-elect Donald Trump has indicated his support for the DAPL and other energy infrastructure projects, including the Keystone XL Pipeline. Rick Perry, Trump’s choice to lead the Department of Energy, recently resigned his position on the board of the DAPL’s developer, Energy Transfer Partners, and Scott Pruitt, tapped to lead the Environmental Protection Agency, is a leading opponent of environmental regulations. Adding to the dismay, the Senate recently elected John Hoeven, (R-ND), a pipeline supporter, as chair of the Indian Affairs Committee. Fearing a government hostile to the interests of DAPL opponents, activists have redoubled efforts pressuring the project’s financiers to divest.
Meanwhile, as the New Yorker notes, the criminal cases against nearly 600 water protectors arrested in connection with the protests are becoming increasingly contentious, at a time when many defendants whose cases are moving forward are still unrepresented by a lawyer. The shortage of defense attorneys admitted to practice in North Dakota prompted the Water Protectors Legal Collective (WPLC), to submit a petition in December asking the North Dakota Supreme Court to temporarily ease the rules for admission to practice law in the state. Currently, out-of-state lawyers must either apply to be admitted to the North Dakota bar pro hac vice or apply for reciprocity, both of which still require the continued participation of in-state counsel. Among those submitting comments in support of the petition were nearly 200 law professors, who wrote that “We are concerned that under these circumstances the rights guaranteed the defendants by the state and federal constitutions cannot be upheld. The right of both indigent and non-indigent defendants to adequate and effective counsel undergirds the guarantees of a fair and speedy trial, due process and equal protection that constitute the cornerstones of the rule of law.”
Compounding concern about fair trials, Acting Morton County State’s Attorney Ladd Erickson has evinced his hostility to the arrestees, including by resisting discovery requests and filing a motion to require public defenders to keep track of costs and expenses so that the state can seek reimbursement from defendants, suggesting that their right to counsel is contingent on the nature of and motivation for the crimes for which they are charged. Erikson argued that “Each protester attack on our police officers, each riot, and each incidence of private property destruction has been done to create fake news videos used to bring attention, celebrities, both passionate and gullible people, and finally money – all to be focused on multiple issues of national discontent… Most protest criminal defendants are simply props for videos of staged events.” He further said that “Our systems are set up so criminal defendants have their constitutional rights enforced. To the contrary, our systems are not set up to be foddered by economic weaponry when people from around the world come to intentionally commit crimes for political purposes and have North Dakota taxpayers pick up the tab.” Erickson’s argument apparently persuaded Judge Bruce A. Romanick, who presided over the first criminal trial: he ordered the two water protectors convicted in December to repay $500 in costs.
WPLC president Brandy Toelupe called Erickson’s characterizations inflammatory, and “intended to poison local jury pools to prevent fair trials and to provide cover for his mass overcharging and false charging of arrestees, dearth of evidence, and refusal to comply with local and Constitutional requirements for producing required discovery in these cases.”