SLAPP’d Episode 5 | Sacred Sites

Alleen: 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.

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

Alleen: 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.

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

Alleen: 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.

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

Alleen: ETP meaning Energy Transfer Partners.

Cody: 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.

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

Cody: 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.

Alleen: 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.

Alleen: What is a sacred site?

Valerie: 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,

Alleen: 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.

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

Alleen: 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.

Valerie: There's not any strong protection for place anywhere.

Alleen: 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..

Dave: 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.

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

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

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

Dave Meyer: 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

Alleen: 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.

Cody: 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,

Alleen: 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.

Cody: 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.

Alleen: 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.

Cody: 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 there were bulldozers  

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

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

Cody: 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?

Alleen: A group of people kicked down the barbed wire fence.

Amy Goodman, Democracy Now: 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 .

Cody: 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,

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

Cody: 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?

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

Cody: 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.

Um, others grab, you know, um, rocks.

The dogs were barking and growling.

Cody: 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.

I saw a few gentlemen, I.

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

Alleen: 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.

Cody: Any of your listeners listen to this, they 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.

Alleen:The bulldozers and security trucks backed down.

Cody: 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.

Alleen: When Tim visited 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.

Cody: 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.

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

Cody: 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

{cheers}

Alleen: 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.

Cody: It backfired big time

Suddenly the movement exploded.

Cody: [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.

Alleen: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.

In the years that followed, the pipeline company doubled down on its questioning of what Tim Mentz knew. They filed their lawsuit against Greenpeace, which argued that repeating the tribe’s assertion that Energy Transfer deliberately destroyed sacred sites amounted to defamation.

Then, one day around early 2024, as a trial date loomed, Greenpeace showed up on the Standing Rock Reservation. They wanted to meet with the tribe to talk.

It turns out, Energy Transfer had put a settlement on the table. A way for Greenpeace to get out of this trial. And Greenpeace was wondering what the Standing Rock Sioux Tribe would think if they accepted it.

Because if Greenpeace did accept the settlement, they, too, would have to undermine the tribe's word on sacred sites.

Tom Goldtooth is a citizen of the Navajo Nation and also has Dakota heritage. He runs an organization called Indigenous Environmental Network.

Tom Goldtooth I've been the, the lead in our indigenous environmental network since 1991.

Alleen: Tom first got to know Greenpeace at a critical moment for the environmental movement.

Tom goldtooth: We challenged the white organizations back in the early 1990s with environmental racism.

Alleen: Mm. Right,

Tom goldtooth: They did not have. Uh, native people on their board of directors. They did not hire native organizers. Many just came into our territories, you know, to do a direct action, you know, ling down an incinerator, power, things like that, but not taken into consideration of building respectful relationship with our people.

Alleen: A new set of principles was being introduced, called the Jemez Principles. They were guidelines meant to make it possible for environmental organizers to be able to work together, across cultures and across struggles. Two of the key principles: Let people speak for themselves. And work together in solidarity.

Tom goldtooth: Greenpeace stepped up.

Alleen: In 2016 Tom was one of the people who asked Greenpeace Inc. to come to Standing Rock, to bring nonviolent direct action training and the solar trailer to the water protectors.

And in 2024, Tom was again talking with Greenpeace as they approached their court date in the Energy Transfer lawsuit.

Tom goldtooth: Our conversation with Greenpeace said, Hey man, this is mucked up.

Okay. And, you know, we'll, we'll, we'll stand with you. You know, you're gonna fight this.

Alleen: But for a little while, it stopped being so clear that Greenpeace was gonna fight this.

Greenpeace's leaders in the U.S. had gamed out what would happen if they did. Given the jury pool in Morton County, North Dakota, they estimated they had only a 5 percent chance of winning. If this went to trial, they determined that Greenpeace as they knew it might cease to exist.

Energy Transfer’s lawyers told them that if they simply settled, they would drop all this. They would let Greenpeace live. The organizations would just have to put out a little statement.

The statement included a few key points.

Tom Goldtooth I'll put it into Moccasin Telegraph word of mouth that I un, I I understand is that one of them was that, uh, they were telling Greenpeace if we're willing to settle, if you, you know, if you say that there was no destruction to any sacred fights.

Alleen: Right.

Alleen: The precise settlement language shifted and changed over time. However, there were three themes that Energy Transfer kept pushing: Greenpeace would have to indicate that there was violence within the Standing Rock movement. They’d have to say that the Dakota Access Pipeline did not pass through Standing Rock Sioux Tribe’s land. And the thing that really rippled through Indian Country ?

Energy Transfer wanted Greenpeace to declare that the pipeline company did not deliberately desecrate sacred sites.

In other words, the corporation behind the Dakota Access Pipeline wanted the best known environmental organization in the world to undercut assertions that the Standing Rock Sioux Tribe stands behind to this day.

Tom goldtooth:  this would violate that respect of the standing Rock sue tribe, that relationship. 'cause they're, they're continuing to hold the line,

Alleen: But Greenpeace considered it.

The worst-case scenario for a trial was grim. A trial might mean the loss of a 50-year legacy and all of Greenpeace’s future impact. It could cause reputational damage to the tribe, allies, and other activists, who would be forced to testify. It could set a legal precedent for suing movements out of existence. A trial could put 135 staff members out of work and risk the whole global network of Greenpeace organizations.

The best-case trial scenario didn’t offer much hope. If all went well, maybe they’d be able to say, “We ‘went down fighting.’” Some concluded that any trial scenario would be catastrophic.

On the other hand, the worst-case settlement scenario wasn’t looking quite as bad to some. A settlement might cause a PR crisis. Greenpeace might lose a few million dollars a year in funding, and some staff might resign — manageable.

A settlement might mean Indigenous allies stop working with them — manageable...

And a settlement might mean Energy Transfer uses Greenpeace’s statements against the Standing Rock Sioux Tribe. To some at Greenpeace, this seemed manageable, too.

A settlement would mean Greenpeace would live to fight another day.

This was the option supported by Greenpeace USA’s executive director, Ebony Twilley Martin, and several senior managers.

But multiple people high-up in the organization strongly opposed Energy Transfer’s settlement proposal. For example, Deepa Padmanabha resigned as deputy general counsel, because she disagreed with senior management’s position, according to sources close to Greenpeace. And some staff members got wind of the settlement and organized a letter to the board, urging them not to accept the terms.

Tom goldtooth: There, there started to be a division of those that wanted to settle and those that said, no, we gotta hold a line. You know?

Tom Goldtooth spoke to Greenpeace’s then-director Ebony Twilley Martin over the phone, multiple times.

Tom goldtooth: she was in a dilemma.

the pressure was on, you know, the fear. Imagine anyone that has a, that, that, that is in a leadership position of a large organization. Uh, that, uh, if they lose this case, it would have to close down their offices,

Alleen: right.

Tom goldtooth: you know, and, uh, that was the, the depth of the debate, you know?

Alleen: what would've. Happened. If they had accepted that settlement and said those things,

Tom goldtooth: I'm chuckling on this one. I, oh geez. I can see you quoting me.

Alleen: I know you've got something to say

Tom goldtooth: Let's see. I would say this would end our relationship with you with Greenpeace. It was that serious, this would end our relationship with Greenpeace.

this is a life and death issue [00:32:00] to our indigenous peoples. This is a life and death issue to to life itself, to water, to the river,

Alleen: Hmm. What was her response to that?

Tom goldtooth: quietness it. I, I feel it hit her hard.

Alleen: hm

music marking shift

Alleen: Back on the Standing Rock reservation, Janet Alkire, the chair of the Standing Rock Sioux Tribe prepared for Greenpeace to accept the settlement.

Janet: we didn't know, um, what they were gonna do. So I had to basically not only prepare myself, but talking to, um, the council and the team and,

Alleen: She didn't share all the details of what tribal leaders had discussed with the Greenpeace lawyers. But she recalls what she told the tribal council.

Janet: It doesn't matter if they, what, you know, that decision is theirs, just like our decision is ours and, and we'll be okay. We'll be, we'll, you know, it'll just make it harder, but we, we'll, we're still not gonna stop fighting, you know? Right. Yeah.

Alleen: Ultimately, it was up to Greenpeace’s boards to decide. Niria Alicia Garcia is an Indigenous Xicana organizer who sits on Greenpeace Inc's board.

Niria: It was clear for us that it was a, it was a hell no.

Alleen: To Niria, it was obvious that the survival of Greenpeace was not the most important thing on the line. But it made sense to her that certain people in the organization DID want a settlement.

Niria: When you're an eight figure legacy, big green. You are gonna have to hire people who know how to keep 5 0 1 C threes viable and afloat. And at the same time, you're gonna need to hire people who are fully, fully aligned and ready to embody the mission and everything they say, think and do.

And that is the forever tension. In nonprofits that exist to be in service to the movement

Alleen: It came time to vote on whether or not to take the settlement.

...And the boards decided to reject it.

It came at a cost, though, and I don't just mean losing the trial. Ebony Twilley Martin, Greenpeace's first Black woman executive director, left Greenpeace USA. But Deepa ultimately rejoined as senior legal advisor.

And Niria stands by the choice that her board made.

Niria: I'm proud that we stuck to our values and decided to stay true to, to the spirit and the mission and the purpose of why Greenpeace ever came to exist anyway,

Alleen: She connects what happened with Greenpeace to what institutions all across the US are now facing.

Niria: look at what we're, we're seeing this happening right now.

If they don't like you, if they don't like the language on their, on your website, you know, funders. Government, it, it can, all, everything that's given to you top down, can be taken from you, top down.

But at the end of the day, nonprofits are discardable, they are revocable, they are replaceable, and the movement is not, relationships are not.

And morals and values are not,

Alleen: A year later, the trial is proceeding. We’re in the courtroom in Mandan, North Dakota. Back with Mike Futch, who's still being asked about the bulldozers and sacred sites on the cannonball ranch. He says the very day the tribe's lawyer filed Tim's declaration identifying sacred sites, he dispatched his construction manager and a security contractor to check it out. And they told him the sites were outside the pipeline's path -- and the bulldozers would be able to avoid the ones on the edge.

They decided they didn't even need to call in an archaeologist to visit the area and double-check, and they certainly didn't call the tribe.

Here's Energy Transfer's lawyer during a pretrial hearing.

Lawyer:   there was just rocks and loose dirt when energy transfer looked and investigated at those sites where they said there might be some culturally significant resources and there was also no human bones or other evidence of burials, uh, was recovered in that area.

Alleen:He shifts his focus.

Lawyer:  Now then what about the issue of deliberateness?

Alleen:There's no evidence of deliberateness.

The tribe's argument that Energy Transfer DELIBERATELY bulldozed sacred sites has to do with the timing of when bulldozers came to the Cannonball Ranch. They'd moved the bulldozers there sooner than originally planned, immediately after Tim Mentz identified the sacred sites.

On the stand Mike Futch says Energy Transfer had planned at least a week in advance to move the bulldozers out of order — because a big powwow was coming to town, and they wanted construction in the area to wrap up before new people showed up.

Mike tells the court that he notified several law enforcement officers of the plan.

Except that story seems to conflict with the schedule they sent police. And when the Morton County sheriff takes the stand he says he DIDN’T know Energy Transfer was going to be in that area. And he adds that that was abnormal — he usually did know the company’s construction plans.

Another Energy Transfer executive takes the stand to argue that another pipeline had actually been built in the area, way back in the early 80's. If there were any sacred sites there, they would have already been destroyed by that construction.

But THIS is another one of those moments where unexpected information is laid bare.

Through a public records request, I got a copy of a report written by a contract archeology firm, hired by Energy Transfer. They made this map where a strip of color shows the area that got dug up back in the 1980s. And it shows Tim's sites outside of that zone.

So what this executive is saying about the existence of sacred sites being impossible because of that old pipeline ? It doesn’t seem to be accurate.

The pipeline company's stories about the sacred sites aren't totally adding up.

Remember, Energy Transfer kept pointing to the archeologists' reports to prove they hadn't destroyed anything.

In fact, that contract archaeology report concluded that four of Tim's sites WERE in the Dakota Access Pipeline’s right-of-way. And one of them was covered by dirt when they visited.

Greenpeace calls to the stand Sebastian Braun. He reviewed those reports, as well as Tim Mentz's findings.

If I walk across a field in Pennsylvania. It is a field. I don't necessarily know that that was Gettysburg Battlefield. Right. If I walk across the mall in Washington DC and I see this weird esque, um, tower there, right. I don't know that that's sacred ground. I, I just don't know. // with anything cultural. I depend on the people from that culture to tell me what the things mean.

I spoke to Sebastian about his testimony, especially about that report we mentioned earlier in the episode, where the North Dakota State archaeologist said he hadn't found anything.

Alleen: does that actually tell you, uh, whether or not there were burial sites or sacred sites there?

Sebastian: no,  it does not say there were no sacred sites.It does not say there were no burial grounds there. It does not say anything really, apart from we didn't find any human remains and we didn't find any evidence that any laws were broken.

Alleen: He tells me what the reports say is simply that they didn't find anything archaeological.

Sebastian: we only find that things are archeological if we can identify them as manmade made. Okay.

And as. Anthropologist. Okay. I have to say that is appalling,

Alleen: it is a narrow definition of significance and meaning,

Sebastian says that that kind of logic doesn't even work where it comes to burial sites. In Indigenous plains cultures, people were often laid to rest on scaffolds. So a burial site, wouldn't even necessarily mean that bones could be found in the ground.

The other archaeologists basically confirmed what Sebastian is saying about the limitations of archaeology in their own testimony, which was pre-recorded but never made it into the trial.

Sebastian: both archeologists are very honest, as you said, are very honest and open about actually not being able to identify. Recognize, um, significant sites, sacred sites, or to, to assign meaning to them.

It doesn't at all say there were no sites. It just says we didn't find anything.

Alleen: In other words, the archaeologists used by Energy Transfer to prove that sacred sites were not destroyed, didn’t actually have the expertise to know the answer -- and indicated as much to the court.

Sebastian Braun: those are questions that should be left to the people who hold that place in significance.

Alleen: Greenpeace International's executive director Mads Christenson is called to the stand.

Energy Transfer's lawyer Trey Cox points to what seems to be the key piece of evidence in their case against Greenpeace International. Which is... drumroll please... a letter written by a different organization called Banktrack in November 2016. It's signed by 500 other organizations, including Greenpeace international... on page 9. And the letter says that sacred sites were deliberately desecrated. Trey is interrogating Mads [about the letter -- the letter that Greenpeace didn't even write.

He looks the lawyer in the eye. “If you’re aware of the fact" - of these sacred sites - "and still go ahead, then it must be deliberate.”

Greenpeace had made their choice. They stood behind the tribe.

The Standing Rock Sioux Tribe did not make an appearance in court. Janet, the tribal chair, explained to me that they don’t mess with state courts, as a rule.

Janet: We don't go to state courts, we go to federal courts because we are under the, um, because we are a sovereign nation. We are the original sovereigns of the United States and we went into treaties with the United States government. So basically we, um, we are elevated. Above the states.

She said she’s grateful that Greenpeace decided to reject the settlement.

Janet: the demonstration of that strength and courage is, is a huge testament. And, and, and, and to show other organizations that, yeah, you just don't. Don't undermine your own integrity, you know, to take the easy road of anything.

Ultimately, Energy Transfer’s deal-making felt familiar to her.

Janet: We've always had to deal with the divide and conquer, and we do it amongst each other too. But, um, I think that wasn't divid and conquer, so to say, of Standing Rock. It was the divide and conquer of this planet

Actually, that Greenpeace settlement wasn’t the first time that the pipeline company attempted to use deal-making to undermine the water protector movement. But the last time Energy Transfer tried to make a deal, the Standing Rock Sioux Tribe was directly in the crosshairs.