The history of social reform in America is inextricably tied to civil disobedience. Women used it to advocate for their right to vote during the women’s suffrage movement. Civil rights activists held sit-ins and marches to demand the end of discriminatory policies and racial segregation during the 1960s. Just in the last week, marchers shut down streets across the U.S. to protest the election of Donald Trump.
Painting a protest as a riot is a form of silencing.
In some cases, acts of civil disobedience—nonviolent violations of the law against a perceived injustice—are met with stern but level reproach from the state. Henry David Thoreau spent a night in jail after refusing to pay six years of back taxes. The Delta 5, who blocked a BNSF railway in 2014 to protest the shipment of fossil fuels, were sentenced to two years probation and acquitted of more serious charges.
It was surprising to many, then, to watch a video of militarized police flanked by armored vehicles bear down on the protesters resisting the controversial $3.7 billion Dakota Access pipeline at the Standing Rock Sioux Reservation in North Dakota in October. Such an aggressive response to peaceful protest raises concerns and questions regarding the state’s tolerance of civil disobedience as a classically American expression of dissent. And many worry those concerns will become all the more real under a Trump presidency and Republican-controlled Congress.
To quell the largely indigenous resistance and protect the pipeline’s economic interests, North Dakota called upon the Emergency Management Assistance Compact, a 1996 program that enables interstate aid during crisis situations. Law enforcement agents from seven states used chemical spray, rubber bullets, and stun guns to forcibly remove protesters. More than 140 people were arrested and camps were destroyed in the sweep.
EMAC, called upon to assist with natural disasters, the 9/11 terrorist attacks, and President Obama’s 2009 inauguration, was also issued to mollify protesters during the Baltimore uprising following the death of Freddie Gray. The prolonged armed standoff at the Malheur Wildlife Refuge in Oregon did not receive this response.
“I think that’s what makes the government and law enforcement’s reaction to the protest really shocking,” notes Candice Delmas, an assistant professor of philosophy and political science at Northeastern University who writes extensively on civil disobedience. “[The protesters] undertook the protest in a really acceptable, respectable way, and they’re treated as just thugs and enemies.”
“It’s very hard to determine sometimes where First Amendment protections lie and where they have diminished.”
A worthy consideration is whether the protectors, as the protesters refer to themselves, were engaging in acts of civil disobedience or rioting. According to Delmas, they followed all of the tenets traditionally associated with civil disobedience: a nonviolent and collective refusal of governmental demands in exchange for concessions. Riots, on the other hand, are outbursts of collective violence that are usually destructive. The mostly Native American activists had a clear, motivated aim of halting construction of the pipeline and were nonviolent in their approach.
But the distinction is one made in the moment. As was shown in the case of journalist Amy Goodman, who faced an arrest warrant and was subsequently absolved of criminal trespass and rioting charges for her coverage of the DAPL conflicts, the evidence doesn’t always fit the state’s narrative.
“Whenever you have laws [EMAC] that are intended for one purpose used for another—and especially to monitor what very well may be First Amendment-protected activities—that always should give the American public pause,” said Jennifer Cook, policy director of the American Civil Liberties Union of North Dakota. “Greater scrutiny should be used for how law enforcement is using this particular law and whether they should be using it at all for this purpose.”
Painting a protest as a riot is a form of silencing, Delmas said, that shows the government’s unwillingness to engage with activists or view them as political agents with legitimate concerns. “You’re really putting it far on the opposite side of the spectrum from civil disobedience. I think it’s a way of ending the conversation to label it riots,” she said.
But the legal waters are murky at Standing Rock.
The First Amendment protects individual rights to freedom of religion, speech, press, petition, and assembly. But the legal waters are murky at Standing Rock, where protesters were pushed off private property that some argue belonged to the Standing Rock Sioux tribe under the 1851 Treaty of Fort Laramie. Individuals generally don’t have First Amendment rights on others’ private property, according to the First Amendment Center. The Bill of Rights provides individual liberty protection from actions by government officials, but private property, of course, is not government-owned.
“When you get a scenario where you have private land and public land all intermixed and you have such a heavily militarized police force, it’s very hard to determine sometimes where First Amendment protections lie and where they have diminished,” says Cook of the ACLU.
But what she finds most alarming is that EMAC was requested to deliver heavy-handed militarized crackdown against primarily people of color at Standing Rock and in Baltimore.
The militarized response to communities of color signals a possible double standard in law enforcement’s acceptance of civil disobedience, said Judith LeBlanc, a member of the Caddo Nation of Oklahoma and director of Native Organizers Alliance, an organization that provides training and support for Native activists.
“[Racism] is built into the system and it has specific, very specific impacts on communities of color in general and Indians in particular. We’re actually being called trespassers on land that historically has been our land,” she said in reference to the 1851 treaty.
Civil disobedience has also been integral to the fight for indigenous rights.
Civil disobedience has also been integral to the fight for indigenous rights. Native Americans used peaceful protest to defend themselves from European settlers. They hid their children from government officials who wished to assimilate them into White American culture through boarding schools. In 1969, a group calling themselves Indians of All Tribes began a 19-month-long occupation of Alcatraz Island to demand better treatment and bring public awareness to Indian termination, a 20-year national policy designed to acculturate Native Americans and end recognition of tribal sovereignty.
In August, the Native Organizers Alliance continued the tradition by holding a national training in Seattle. It explored how to build a grassroots base in Indian communities, and taught different forms of direct action as well as how to judge what would be most effective in the moment of struggle. For example, soft direct action involves dropping a banner, while hard action includes locking down construction equipment. A majority of the training’s 25 participants went on to join the Standing Rock protest.
In blocking the DAPL, Native protesters are calling on the government to phase out rather than increase fossil fuel development and consult with tribes prior to launching infrastructure projects.
“We either save Mother Earth together or she will perish,” LeBlanc said, adding that the protest at Standing Rock isn’t only about fighting for Native American rights. “When we fight, it is not simply for our land, our air, and our water. It is for all of the people.”
Editor’s note: This article initially stated that the only other instance in which EMAC was used outside of a natural disaster was in response to the riots in Baltimore, Maryland following the death of Freddie Gray. The error has been corrected.
This article was funded in part by the Surdna Foundation.
Melissa Hellmann reports on artificial intelligence at The Seattle Times and is a former Surdna reporting fellow for YES!.