The Kill Step, Part Six: “We believed that to be true.”

The Kill Step, Part One: “They’re Waiting for Someone to Wink”

The Kill Step, Part Two: “What the hell is this bullshit?

The Kill Step, Part Three: “You’re Going to Fight This.”

The Kill Step, Part Five: “It’s part of the treaty.”

The Kill Step, Part Four: “How many of you feel the same way?”

There’s this moment that sticks in my head from the very first testimony in the Energy Transfer vs Greenpeace trial. Energy Transfer's project manager for North Dakota — that tall, bald man named Mike Futch — is on the stand. And he’s been speaking authoritatively about exactly how the pipeline was built, and everything the company did to avoid damaging any culturally important sites. I can see why Energy Transfer put him on first. He’s got this military vibe that — as a Midwesterner myself — I know that a lot of Midwesterners tend to trust.

Energy Transfer’s lawyer starts asking about one day of construction in particular, September 3, 2016. That's when Energy Transfer began to expand the pipeline at a specific site known as the  Cannonball Ranch. The lawyer asks Mike this key question. “How do you respond to the allegation that there was desecration of burial grounds, sir?”

"That didn't happen, and it's a personal insult," he tells the court.

It’s a powerful statement, coming from this guy.

He's a coward.  he hides behind a shield that he wants to keep him and his little cronies protected.

That's Cody Hall, the Cheyenne River Sioux Tribe member who was originally named in Energy Transfer's lawsuit. And he was there at the Cannonball Ranch that day in 2016 as bulldozers tore through what tribal members had identified as a burial ground.

  They got sneaky and moved their bulldozers, and came to that, that site and desecrated it,

One of Energy Transfer's main accusations against Greenpeace is Defamation. Among other things, they say Greenpeace lied by saying that the pipeline company intentionally desecrated Oceti Sakowin sacred sites. But that claim doesn't originate with Greenpeace. It originates with Indigenous leaders. And that's who we're going to hear from today.

This season of Drilled we bring you SLAPP’d. The story of an Indigenous nation fighting for its water, an environmental nonprofit facing extinction, and an energy giant using the courts to punish protestors.

It was the end of August 2016, and Cody Hall had been at the anti-pipeline camps on the edge of the Standing Rock Sioux reservation in North Dakota for a couple weeks now. Up the road from camp, in an area marked to be bulldozed, a survey was underway. A respected elder from the Standing Rock Sioux Tribe was looking for sacred sites.

 People, uh, at camp kind of, you know, mistook him and his crew for. ETP, you know,

they were like, we gotta go after these people. They're on the, you know, and it was like, after we found out it was, you know, Tim and his crew and stuff, it was like, no, no, no, no, no, no.

That, that, that, you know, he's on our side.

Tim Mentz was the guy leading the crew. Which told Cody this was important.

 Oh, I knew a Tim for, you know, ever since I was just a young, you know, teenager. Um, wow. And I knew his role.

I mean, um, he is well respected for his knowledge of pretty much everything from the stars down, um, when Tim talks about stuff, it is something that you pay attention to because it's of an importance, um, not just to our ourselves, but you know, to, uh, to our livelihood and our existence that, that we keep on, these certain ways of life.

He was like our genius, uh, in our cultural right, in our cultural ways.

Tim Mentz is in his 70s. When his grandma was a kid, it was illegal to practice Indigenous religions. As he grew up, that started to change. Still, he's faced a lot of hurdles in protecting Oceti Sakowin sacred sites. Which is part of the reason that he didn't want to talk to me on the record.

Instead I spoke to Valerie Grussing, the executive director of the National Association of Tribal Historic Preservation Officers.

 in real speak, I guess it's anything a tribe says it is.

It's a place that they, I identify as sacred for whatever reason,

Indigenous religions are often based on specific places and lands. It's why the government criminalized Indigenous spiritual practices as they colonized what became the United States of America.

In the 1990s, Tim fought for a change to the National Historic Preservation Act that gave tribes more of a say in what places get protected from destruction. It created the role of the tribal historic preservation officer -- which over 200 tribes now have. They especially weigh in on projects built on federal land. In fact, Tim was the first Tribal Historic Preservation Officer in the United States.

It was a big deal. But it wasn't enough, because Indigenous nations still don't have veto power over government-approved construction projects.

they can still make, make whatever decision they want, um, if they deem it to be in the national interest.

Outside of federal land, Tribal historic preservation officers have even less of a say in what happens to sacred sites. And they're sometimes pitted against State Historic Preservation Officers, who are typically archaeologists, and have a lot of decision making power. The archeologists often don't recognize the things Indigenous people consider sacred.

 There's not any strong protection for place anywhere.

In July 2016, the Standing Rock Sioux Tribe filed suit against the federal government -- against the Army Corps, and that suit really revolved around protecting sacred sites. The sites Tim was looking for are stones arranged in circles and other shapes , used for ceremonies and other purposes. They wanted the agency to do a [00:09:00] deeper review of the entire Dakota access Pipeline route. And they wanted construction stopped in the meantime -- including on private land.

Tim submitted a statement to the court, describing what was at stake.

"Destruction of these sites will eventually destroy generations of family connections to these areas of spiritual power.”

He wrote, "These sites still retain the ability to mend our people.”

The pipeline company replied that they’d already surveyed the route for culturally important sites and avoided most of them. They said the Standing Rock Sioux Tribe had had opportunities to weigh in on the route, and now it was too late.

As this was all happening a rancher named Dave Meyer was in touch with the tribe. He owned the land where the pipeline route met the Missouri River -- the Cannonball Ranch..

 that was our Buffalo ranch is what we were using it for. It was a really beautiful ranch. It's pretty much all grassland, you know, with trees and draws going down to the Missouri River, so, very nice place.

Dave says he had a good relationship with the Standing Rock Sioux Tribe

 We rent a lot of land from 'em. Um, we own land on the reservation. Basically we got along really well,

Dave generally supported the construction of the pipeline. But he also didn't see any problem with letting Tim inspect the land.

 You know, I did invite Tim Mentz right away and there were some other guys with him and we drove around through different spots and looked and stopped on hills and he was showing us some different rocks and stuff.

 'cause I figured if the pipeline's going through there, everybody's gonna have to walk through and give their opinion

On a hot, bright day, Tim traveled about three quarters of a mile from Dave’s buffalo fence on the side of Highway 1806, to a mowed [00:23:00] strip of land that extended into the distance. It was the pipeline easement — the area where Energy Transfer had permission to bulldoze. They began to record what they saw.

Tim and his team sketched 82 stone features, including 27 burial sites along 2 miles of the corridor. It didn't surprise Tim too much that so many were there. It was near where the Cannonball River flows into the Missouri, and it had long been an important gathering place.

 it was very heartwarming. that kind of ed, you know, ed up the, uh, our position of, um, more of a, you know, what we need to protect,

Cody Hall spoke to Tim as this was all unfolding.

Then, Friday morning before Labor Day Tim wrote up what he'd found.

His biggest find was a cluster of stones arranged in the shape of the big dipper, with a grave site attached to the cup, from an important leader.

“This is one of the most significant archeological finds in North Dakota in many years,” he wrote.

His declaration was filed as part of the tribe's lawsuit against the Army Corps. The lawyers entered the coordinates of the sites into the public record.

I know what happened next because of Cody. I put in a public records request for his arrest report, just to fact-check details he'd told me about getting stopped by police. But that report had a whole lot more in it than I expected. It happened to include interviews with security personnel and construction workers who were at the Cannonball Ranch that week.

The police interviews show that abruptly, just after the tribe's lawyers filed Tim’s statement about the sacred sites, a private security firm working for Energy Transfer reached out in the middle of the night to a security dog company called Frost Kennels. They wanted Frost to bring their dogs out to the pipeline route the next morning . Energy Transfer was expecting a protest, the report says.

The company had made a change to their construction schedule, according to records described during the Greenpeace trial. Days earlier, Mike Futch had sent a construction schedule to police, with the date they planned to start bulldozing in the area Tim surveyed. Instead, the bulldozers showed up more than five days early. The morning after Tim shared the coordinates of the sacred sites — construction workers apparently moved those bulldozers around 15 miles ahead of their course, directly to the area of the sacred sites.

For Cody, that day started out normal at the Oceti Sakowin camp.

 That morning was having some coffee and some breakfast and it was, it was like. Reflecting on what happened during the week, right.

there was a, there was a group of women that came down from what was called the, the treaty camp area.

The treaty camp was sometimes called the frontline camp. It was much smaller than the other camps and located on a hill, right on the pathway of the pipeline, positioned so campers could see what was happening along the route.

 So these women. Drove down from, um, from that camp, um, speeding through and said, um, the bull, some bulldozers are, um, are up by the, by the treaty camp. Um, we need everybody to come up. [00:15:00] And, and I thought bulldozers, you know, what the hell, right.

I got in my vehicle and drove up there, uh, raced up there and here. Sure enough,  on, on the left side 

I thought, holy, holy crap. Here, here they are on a weekend nonetheless, because we knew that they took the weekends off.

Cody knew that this was the same area where Tim had identified sacred sites, just the day before.

 I couldn't help but thinking, you know, over and over in my head of these sneaky bastards, they are trying to rid of us, literally. And, um, no, you know, gloves are off.

It felt like, uh, being pushed, um, to that breaking point of, you know, well, what are you gonna do now injun, you know?

A group of people kicked down the barbed wire fence.

: People have gone through the fence - men, women and children. The bulldozers are still going. And they're yelling at the men in hard hats. One man in a hard hat threw one of the protestors down  .

 I remember looking down the road right on 1806, like towards camp, looking to the south. You saw vehicles full of people coming up, um, people jumping out, you know, um, of all the vehicles and running to the west,

Cody followed the others toward the area where bulldozers were rolling.

 we ran up on it and that's when, uh, all these, these, these white pickup trucks, um, these guys jumped out. and I thought, and they, they, uh, had their dogs, they had German shepherds and, and um, and I thought. They have dogs and what do we have?

People began grabbing what they could use to fight back against the destruction of the sites.

 so guys are grabbing those, you know, surveying sticks and, uh, some guys are trying to loosen up the steel post in, in, in, in the fence lines and stuff.

 one of our female, um, um, water protectors was, was talking to that female officer, that female security person, and she let go of her dog and it bit, that water protector gal, it, it bit her left boob that was the end.

You know, take their, those surveying sticks and stuff and just whip those security officers and the dogs to get 'em back.

The police report says that one security guard went to the ER and three of the dogs were injured. Six water protectors were bitten by dogs, according to a tribal spokesperson at the time. I asked Cody what he would say to the accusation that the water protectors were violent.

hey would protect what they believe and what they love wholeheartedly.

And if that meant that there was a consequence, then we'll take it.

we're not just gonna allow a bunch of bulldozers to come in, you know, and meanwhile, we're supposed to stand on the other side of that barbwire  and just see that desecration and say, oh, well, we're gonna wait for the legal system to protect us.

The bulldozers and security trucks backed down.

 I remember there was people just throwing, um, the dogs in the back of the, [00:19:00] the pickup trucks. and jumped in those trucks and literally just like drove off.

 the construction site to survey the damage from the bulldozers, he could see from the side of the road that “A significant portion of the site we’d surveyed had been cleared,” Tim wrote in another declaration to court.

“”I do not believe that the timing of this construction was an accident or coincidence,” he added.

 People were crying. People were mentioning that, there was sacred sites here. and I didn't want our people and our allies to go back to their vehicles feeling defeated.

Cody jumped onto the pile of dirt at the edge of the bulldozed easement and gave a speech, as people recorded on their phones.

: There's a reason why you all banded up together here from all different tribes. because your ancestors said take one leap of action, to defend. And that's what you guys did today

Police watched it, and arrested him later that week. This was the arrest he told me about in our first episode of SLAPP'd

Police weren't the only ones seeing videos from Standing Rock.

All over the rest of the country, people were watching the footage of water protectors being attacked by security dogs.

because] within two days we saw the roads on 1806 jam packed, getting into the camp. Like there, there was a, there was a huge amount of people showing up to, to stand up and, and stand with us.

Energy Transfer denied they'd done anything wrong that day.

They even got Dave Meyer the rancher to sign a document saying he didn't  invite Tim Mentz to survey his property for sacred sites.

The state of North Dakota sent their own archeologist out to investigate.

Energy Transfer’s private security team created an elaborate security plan involving a predator drone and on-call police snipers, who I guess were supposed come to the rescue if someone tried to attack the archeologists? They called it Operation Point Break. (Yes also the name of a 90s Keanu Reeves movie where he’s an undercover FBI agent infiltrating a group of surfer / robbers).

After it was over, the chief archeologist of the North Dakota State Historic Preservation Office  issued a statement. "No cultural material was observed in the expected corridor," he wrote, adding, "No human bone or other evidence of burials was recorded." He concluded that Energy Transfer had not broken North Dakota law.

It was a big victory for Energy Transfer. The North Dakota archeologist had just undercut Tim Mentz's expertise and the stance of the Standing Rock Sioux tribe.

The bulldozing continued. And so did the legal fight. And by then, Energy Transfer hired Gibson Dunn and Crutcher to help them convince the judge to rule against the tribe.

Transcription

One of the charges Energy Transfer has made against Greenpeace is that the organization "defamed" the pipeline company by saying that construction of the pipeline was disturbing sites the tribe views as sacred. But the Standing Rock Sioux Tribe stands behind this claim. In this episode, we hear that story.

Standing Rock Documents

SLAPP’d

SLAPP’d Episode 6 | The SLAPP Heard ‘Round the World