Photo by Rob Wilson
North Dakota Governor Jack
Dalrymple has issued a sweeping executive order to immediately evict
people from the Anti-Dakota Access Pipeline Water Protector camp near
the Standing Rock Sioux Reservation and deny basic emergency services
like ambulances to the camp. The order also criminalizes supporting
the camp or its residents. The eviction is labeled an evacuation and
is justified as a safety measure to protect the camp’s residents
from the harsh North Dakota winter.
Setting the State:
The largest Water Protector
camp, Oceti Sakowin, is on contested land of which the Army Corps of
Engineers and the Sioux both claim ownership. On November 25, the
Army Corps of Engineers issued an order to close the camp and evict
the residents on December 5, 2016. It requires residents to leave,
and the property be closed to the public. They suggest moving the
camp to a free speech zone less than a mile away in Cannon Ball,
North Dakota. It was justified as an emergency evacuation order to
protect residents of the camp from the North Dakota winter.
On
November 27, the Army Corps of Engineers announced in a letter that
they have no plans to use force to get Water Protectors out of Oceti
Sakowin Camp stating, “The
Army Corps of Engineers is seeking a peaceful and orderly transition
to a safer location, and has no plans for forcible removal.”
In
response to the Army Corps of Engineer’s follow up statement,
Governor Dalrymple said, "When
you put out a pronouncement that people must leave your land by a
certain date, I think you take on a responsibility to somehow bring
that about."
On November 28, Governor
Dalrymple issued his executive order.
The
Order:
According to the order,
effective immediately all people residing in the camp are considered
trespassers, even if the Army Corps rescinds its order, or changes
the parameters of the order.
“This definition [the land the Army Corps of Engineers specified in its order] of the evacuation area shall remain in effect even if the United States Army Corps of Engineers redefines or removes these prohibited areas,” reads North Dakota Governor’s Executive Order 2016-08.
The Army Corps of Engineers as
the property owner can no longer say Oceti Sakowin Camp residents are
not trespassing, because the state will still consider them
trespassers in spite of the land owners assertion.
The
order continues, “These
persons are ordered to leave the evacuation area immediately, and are
further ordered not to return to the evacuation area. All persons in
the evacuation area shall take all their possessions with them upon
their evacuation.”
The governor’s executive
order moves the date up for evacuation an entire week. It also gives
residents no time to arrange other housing or to move their housing
without already being considered a trespasser.
Many of the homes and camps in
Oceti Sakowin Camp require trucks to move out and sufficient access
to trucks at a moment’s notice does not exist.
“Any
action or inaction taken by any party which encourages persons to
enter, reenter, or remain in the evacuation area will be subject to
penalties as defined in law,”
reads
the order.
Anyone entering or helping
someone enter the camp is subject to criminal prosecution.
Hundreds of veterans have
committed to self deploy on December 4 to Standing Rock as an
unarmed, peaceful militia to defend the Water Protectors.
“I
direct state agencies, emergency service officials, and
nongovernmental organizations to reduce threats to public safety by
not guaranteeing the provision of emergency and other governmental
and nongovernmental services in the evacuation area, unless otherwise
approved on a case by case basis by the Morton County Sheriff or
Superintendent of the Highway Patrol,”
states the order.
Since the establishment of the
Water Protector camps, hundreds of people have been injured by police
in actions in and around the camps. In just one action on November
20, over 300 Water Protectors were injured by police when police used
fire hoses to soak them in subfreezing 22 degree temps. They also
employed pepper spray, tear gas, concussion grenades, rubber bullets,
and bean bags.
The
Standing Rock Medic & Healer Council, the collective of medical
and healing professionals in the camp, explained the scope of just
one night of interaction with police being directed by Morton County
Sheriff in a statement issued on November 21, “ At
least 26 seriously injured people had to be evacuated by ambulance to
3 area hospitals.
… Projectiles
in the form of tear gas canisters, rubber bullets, and concussion
grenades led to numerous blunt force traumas including head wounds,
lacerations, serious orthopedic injuries, eye trauma, and internal
bleeding. ...
Other injuries listed in the
statement were 300 hypothermia victims, an elder who lost
consciousness at the scene and had to be revived, a grand mal
seizure, potential blinding from a rubber bullet, internal bleeding
from a rubber bullet, blunt force trauma to spine, lacerations to
head, and multiple fractures.
A woman was hit by a
concussion grenade and her arm was blown open. She has had to have
multiple surgeries and remains in critical care. She may lose her
arm.
Under the governor’s order,
the Morton County Sheriff has authority to deny ambulances to the
people they injure.
Moreover, the governor is
arguing that people are safer if they do not have access to emergency
services like ambulances and if those ambulances are allocated on a
case by case basis by the police.
“The
general public is hereby notified that emergency services probably
will not be available under current winter conditions,” affirms the
order.
The geographic location of
Oceti Sakown camp is not experiencing unusual snow, nor a special
amount in relationship to other areas of North Dakota. Other areas of
North Dakota are not losing access to their emergency services due to
exactly the same weather conditions.
The new free speech zone in
Cannon Ball, North Dakota is less than a half a mile away from the
current Oceti Sakowin Camp.
Meteorologist Allen Becker
looked into the two different locations to see the potential
differences between the two camp locations.
Becker
found,“A
preliminary review of the two locations shows no significant
difference in air temperature between the two locations, at most one
or two degrees."
Governor Dalrymple justifies
his order using statutes Emergency Services statues North Dakota
Century Code and Chapter 37-17.1 and 37-17.1-05(6)(e):
Chapter
37-17.1 reads, “The
purposes of this chapter are to: 1.Reduce vulnerability of people and
communities of this state to damage, injury, and loss of life and
property resulting from natural or manmade disasters or emergencies,
threats to homeland security, or hostile military or paramilitary
action.”
Chapter
37-17.1-05(6)(e) reads, “Direct
and compel the evacuation of all or part of the population from any
stricken or threatened area within the state if the governor deems
this action necessary for the preservation of life or other disaster
or emergency mitigation, response, or recovery.”
Also relevant to the
conversation about the legal issues around designating a disaster is
how the statue defines disaster.
Chapter
37-17.1-04 (1) defines disaster as, “...the
occurrence of widespread or severe damage, injury, or loss of life or
property resulting from any natural or manmade cause, including fire,
flood, earthquake, severe high and low temperatures, tornado storm,
wave action, chemical spill, or other water or air contamination,
epidemic, blight, drought, infestation, explosion, riot, or hostile
military or paramilitary action, which is determined by the governor
to require state or state and federal assistance or actions to
supplement the recovery efforts of local governments in alleviating
the damage, loss, hardship, or suffering caused thereby.”
The only issues covered in the
executive order also in the definition of disaster are “low
temperatures” and “any manmade disasters.”
In order for a manmade
disaster to actually exist, it has to actually have happened, not
speculate it might happen in the future. The governor listed some
things which imply that there could be a problem in the future but
fails to actually describe a problem which has already occurred which
meets the “manmade disaster” criteria. Since there has been no
manmade damage, injury or loss of life or property at Oceti Sakowin,
the manmade cause fails.
Even though many other areas
of the state are experiencing identical weather, the people in those
areas are not being evacuated from their homes.
The
executive order states that Water Protectors are living in “in
tents, vehicles, temporary and semi-permanent structures which have
not been inspected and approved by Morton County as proper dwellings
suitable for winter habitation;”
and “the
aforementioned areas of Morton County are not zoned for dwellings
suitable for living in winter conditions, and also do not possess
proper permanent sanitation infrastructure to sustain a living
environment consistent with proper public health”
Governor Dalrymple’s
potential sanitation issue justification fails to meet the legal
burden of a disaster, even if it is coupled with the cold.
He is left with a
justification of fear of loss of life or injury do to inadequate
housing to stand up to the cold.
Dalrymple’s executive order
attempts to deny medical treatment and emergency services to people
he defines as vulnerable to death or injury due to their housing
situation.
The most direct example of his
failure to consider cold a serious threat to life was his total
inaction when police used a water hose to soak hundreds of Water
Protectors in freezing temperatures.
Governor Dalrymple was elected
to office in 2010 and has held office since. In 2013 and 2014 North
Dakota experienced a 200% jump in homelessness. As jobs flooded into
the state, housing did not increase and rents skyrocketed. People
were forced to find housing in usual places, including inadequate
recreational vehicles and tents. Homeless people, by definition, do
not have adequate housing and often live in unsanitary conditions.
No executive orders were
issued by Governor Dalrymple to mandate moving the homeless to
another location, nor did he order local agencies to deny them
emergency services.
Tipis, one of the most common
housing types in Oceti Sakowin, have been used by Lakota, Dakota, and
Nakota as well as other plains Native American nations for over
10,000 years. Their design stands up to the harsh wind, and bitter
cold.
When previously presented with
similar threats of harm by cold and inadequate housing, the Governor
did not issue an executive order of the same nature.
The Motive:
Any motivation offered for the
governor’s executive order – race, political view, financial
gain, religion - would be speculation. What is not speculation is the
justifications for denying emergency care for people the governor
defines as vulnerable to death or injury are not stated in the
executive order.
Army
Corps of Engineers Letter:
http://media.graytvinc.com/documents/Army+Corps+Letter+1125.pdf
Army
Corps of Engineers Follow Up Letter:
http://nativenewsonline.net/currents/army-corps-issues-statement-no-plans-forcible-removal-dec-5-stay-face-citation-arrest/
Governor
Executive Order:
https://www.governor.nd.gov/media-center/executive-order/dalrymple-orders-emergency-evacuation-safeguard-against-harsh-winter-co
Emergency
Services Statutes: http://www.legis.nd.gov/cencode/t37c17-1.pdf
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