Early on Tuesday, federal police arrested three journalists from news organizations of Indigenous Peoples for covering a raid on the camp of Indigenous leaders of the Dakota Access pipeline in protest of its construction.
The three were charged with taking a “large object across a railway and trespassing” and await arraignment.
Charging journalists for covering a protest can be an extension of the efforts of the State Department and other law enforcement agencies across the U.S. to keep Indigenous peoples from speaking out against the controversial pipeline. However, legal experts say that the prosecutors have a poor understanding of the First Amendment rights and that the charges are seriously disturbing.
“I was shocked that they were being charged this way. I was shocked that they were charging without a hearing,” said Jay Ritchie, legal director of the Nechirvan Rights Education Society, an Indigenous human rights organization.
Arrests have become almost common for protesters during pipeline construction. Law enforcement agencies against police forces have rarely prosecuted anyone for criminal behavior during protests but have instead downgraded or refrained from applying the law. The Canadian province of Ontario has so far declined to arrest any of the protesters from a November camp near the construction site that was only months ago deemed a threat to health and safety.
On Wednesday, a spokesman for law enforcement agencies in the pipeline region said that the Dakota pipeline is behind schedule and that due to the bad weather, the pipeline will be delayed into June.
Ritchie said that, while the arrests of Indigenous demonstrators during the construction of the pipeline have had “unprecedented impact on Indigenous people in North Dakota,” those against the pipeline are still facing risk of non-violent intimidation.
Ritchie said the U.S. has moved to punish those who engage in peaceful and non-violent protest at sites of construction, while accommodating the construction of pipelines.
Katherine Lambright, a professor of law at Oklahoma University, said she has been observing arrests of journalists at Sioux Indian reservations.
At times, the protesters in North Dakota have faced felony charges, which could result in decades in prison, and even murder charges. The only legal form of prosecution for protesters who disobey police orders is a civil citation for trespassing and not a criminal charge.
Daniel Hawkins, a professor of law at the University of Pennsylvania and an attorney, said these attempts to criminalize and silence activists violate First Amendment protections.
“There’s clearly a concerted effort on the part of the state and federal government to control the media on First Amendment grounds, and we see a concerted effort by law enforcement to take action when people are violating [the law]. Particularly when there’s a history of suppression of the media in some of the most significant areas of First Amendment challenges, this is of grave concern.”
Hawkins said that “taking another journalist into custody … when they’re broadcasting on the livestream on Facebook and on the evening news shows and essentially has the ability to control what is portrayed in the news is completely inconsistent with their professed mission.”
The arrests of journalists on Indian reservations have received media attention because the First Amendment allows for citizens to gather and disseminate information that will “comment on, criticize, encourage, ridicule, affront or threaten the civil peace, good order or morality of a community.”
Hawkins said he is alarmed at the lack of accountability and accountability by law enforcement when arresting media as they have continued targeting reporters from news outlets that support the non-violent protest movement.
“There are people who have protested at both sides of this pipeline,” Hawkins said. “My concern is that the efforts by law enforcement to have a media blackout are not being met with respect and accountability by law enforcement agencies.”
Hawkins said that although no journalists are being prosecuted for taking pictures or sharing the pictures online, he is still concerned about those arrested being held in police custody.
“The administration has been really dismissive of violations of their civil rights, not the treatment of their illegal customers. We were told they’re going to be civil. So, here we have a regime that is increasingly trying to control and intimidate civil disobedience of media outlets.”
Alissa Walker, a communications coordinator for the Indigenous Environmental Network, one of the organizations that supported the Dakota Access pipeline protest, said she is concerned about how the arrests of journalists will negatively affect the group.
“We are organizing in communities all over the country, and that work and communication has always been very critical in terms of both growing and sustaining this movement and getting out these stories of the resistance,” Walker said.
The Associated Press contributed to this report.