After spending a year in jail awaiting trial, Oglala Lakota Sioux activist Red Fawn Fallis pleaded guilty last week to two federal felonies related to her arrest while protesting the Dakota Access pipeline. As part of the plea agreement, prosecutors dropped the most serious charge against her, which would have carried a 10-year mandatory minimum sentence with the possibility of life imprisonment.
Fallis was arrested on October 27, 2016, during a large-scale law enforcement operation to evict pipeline opponents from a camp alongside North Dakota Highway 1806. After officers tackled Fallis and pinned her on the ground facedown, they allege that she fired three shots from a revolver underneath her stomach, which did not result in any injuries. Last month, The Intercept revealed that the gun in question belonged to a paid FBI informant who was in a romantic relationship with Fallis. The informant, Heath Harmon, had infiltrated the protest camps starting in August 2016 and was near Fallis’s side for much of the day leading up to her arrest.
In a statement explaining Fallis’s decision to accept the plea deal, the Water Protector Legal Collective cited several negative pretrial rulings issued by Hovland, as well as the likelihood of jury bias based on a survey of potential jurors revealing strong antagonistic feelings toward anti-pipeline protesters. U.S. Attorney David Hagler declined to comment for this story. A Morton County Sheriff’s Department spokesperson did not respond to a request for comment.
While law enforcement frequently cited Fallis’s case to advance a narrative of anti-pipeline protesters as violent extremists, her supporters see her legal plight as only the latest episode in the U.S. government’s long history of hostility toward indigenous people who push back against powerful government and corporate interests. More than 50 people turned out to support Fallis at her federal hearing in Bismarck on January 22; many expressed sadness and outrage about her likely prison sentence.
“As indigenous people, we’re simply not allowed to act in defense of our children, land, or traditions without incurring severe punishment,” said Eryn Wise, a member of the Jicarilla Apache and Laguna Pueblo nations who worked with Fallis at Standing Rock. “We’re horrified they took another person from us who we may not get back for a long time.”
Fallis’s arrest in October 2016 occurred amid a highly militarized police raid on land that would still belong to the Great Sioux Nation had the Fort Laramie treaties of 1851 and 1868 been honored. In a pretrial motion, Fallis’s attorneys attempted to raise the issue in her case, arguing that the government had a burden to establish the law enforcement operation as lawful by addressing treaty rights in court. But Hovland refused to allow consideration of this broader historical context, instead making several orders to limit the case’s scope. “This is not a complex case,” Hovland insisted in a January 2 order.
Fallis’s attorneys also filed several motions asking the government to disclose information related to the sweeping surveillance activities of public law enforcement and private security contractors hired by the company behind the Dakota Access pipeline. Drawing in part on stories and documents published by The Intercept, they argued that Fallis’s case could not be considered apart from this intrusive intelligence gathering, given that an undercover informant employed by the FBI had initiated a relationship with Fallis, and then made available the gun she was accused of firing.
As The Intercept previously reported, Harmon said he was recruited by the FBI after approaching his brother, a Bureau of Indian Affairs police officer, about “being an observer” of the protest movement. He gave conflicting accounts about the gun. On the morning after Fallis’s arrest, he filed a report with the Mandan Police Department claiming it had been stolen two to three weeks prior. Later, in an interview with the Bureau of Alcohol, Tobacco, Firearms, and Explosives and the North Dakota Bureau of Criminal Investigation, he said he’d last seen the weapon a few days before Fallis’s arrest, having left it in her trailer at the water protectors’ Rosebud Camp.
Defense lawyers for Fallis sought additional materials regarding Harmon’s activities as an informant, contending that prosecutors had only turned over “sparse summaries” of his communications with the FBI rather than the more detailed reports that likely existed if the bureau followed its standard protocols. They also requested information on other covert operatives at Standing Rock. In a pretrial hearing, one of the officers who helped arrest Fallis had testified that law enforcement received a briefing on the morning of October 27, 2016, from either a law enforcement or private security infiltrator who was posing as a protester. Hovland ruled against these requests for discovery information.
Defense filings suggest the documents turned over by the government still included some new information on Harmon’s activities. He had been “instructed to collect information on potential violence, weapons, and criminal activity,” a defense motion noted, adding that Harmon’s FBI contacts had recommended that he receive extra compensation to keep him “motivated for future taskings.” The defense motion suggested that Harmon had been slated to testify against Fallis had her case gone to trial as scheduled.
Additional discovery requests rejected by Hovland pertained to the activities of private security agencies. Fallis’s attorneys had challenged the legality of police operations at Standing Rock due to law enforcement’s close collaboration with TigerSwan, a security firm hired to protect the pipeline. An ongoing lawsuit filed by the North Dakota Private Investigation and Security Board alleges that TigerSwan illegally provided security and investigative services in the state after having been denied a license to do so. A civil trial in that case has been scheduled for October 2018.
Following The Intercept’s publication of a “links chart” prepared by a North Dakota fusion center identifying Fallis as a leader of the protest movement more than seven weeks prior to her arrest, defense lawyers asked the judge to compel the government to turn over all intelligence collected about Fallis and her activities. The judge ordered the government to “disclose all relevant information” concerning Fallis, including but not limited to her placement on the chart — but such disclosure will no longer be required given Fallis’s decision to accept the government’s plea offer.
A Legacy of Activism
Among the water protectors who gathered at Standing Rock, Fallis was known for her work as a medic and mentor to younger activists. According to Mia Stevens, a family friend, Fallis had dedicated her work to her late mother, Troy Lynn Yellow Wood, a prominent activist with the American Indian Movement.
Founded in 1968, AIM fought for the legal rights and cultural survival of indigenous people. According to Phyllis Young, a Standing Rock Sioux tribal member and longtime AIM member, Yellow Wood was at the center of many of the group’s struggles and helped to establish Women of All Red Nations, which fought for an end to forced sterilization of indigenous women, among other causes.
By traveling to Standing Rock, Fallis was almost literally following in her mother’s footsteps. In 1974, Young said, members of the Standing Rock Sioux tribe invited AIM to an area at the confluence of the Missouri and Cannonball rivers known as Sacred Stone, which would later become the site of the first NoDAPL camp.
Until the 1978 passage of the American Indian Religious Freedom Act, it was illegal for indigenous people to practice many of their traditional spiritual ceremonies. Standing Rock traditionalists decided to carry out a pipe ceremony at the site and sought AIM’s protection to do so. Yellow Wood was among the AIM members who responded to that call, Young said.
Many of Fallis’s supporters contend that her stature as a politically active indigenous woman played a central role in drawing the attention of law enforcement. “They just could not stand for us as Indians to talk back to them, and most of all, they couldn’t stand for us as women to be talking back to them,” Young said.
In early May, Fallis was granted a three-day furlough from jail to attend a memorial in Denver for her mother and grandmother. Young, who accompanied her to the ceremony, said Fallis had a emotional reunion with family members before receiving blessings at traditional ceremonies organized on her behalf. “They honored her far into night,” Young said.
But while an older generation of AIM activists sees Fallis as having carried on the work of the organization, her case also represents a continuation of the infiltration that created fissures within AIM in the 1970s. Standing Rock Sioux tribal member Ladonna Allard, who hosted the Sacred Stone Camp, says people in the movement are “trying to deal with the whole fact of Heath Harmon and how he was able to get so close to everybody.”
After spending a year in jail following her arrest, Fallis was transferred to a halfway house in Fargo. Earlier this month, federal marshals re-arrested her after she failed to attend a mandatory adult education course and returned late to the halfway house. At the January 22 hearing, both prosecutors and defense attorneys expressed supported for returning Fallis to the halfway house with the addition of GPS monitoring.
While Fallis’s case has been one of the highest profile among the hundreds filed against anti-DAPL protesters, she is not the only one to face harsh penalties for her role in the protests. On January 21, attorneys for Michael “Rattler” Markus, another pipeline opponent charged with federal crimes related to the October 27 raid, announced that they had arrived at a plea agreement with the U.S. government. Prosecutors will drop the most serious charge against Markus — use of fire to commit a federal felony offense — in exchange for his plea of guilty to civil disorder. Prosecutors and the defense are jointly recommending a prison sentence of 36 months.
A sentencing hearing for Fallis is scheduled for May 31. Her attorneys intend to call several witnesses, defense attorney Bruce Ellison said at the hearing in Bismarck. Ellison is also a longtime attorney for Leonard Peltier, a member of AIM who was imprisoned for the killings of two FBI agents in the 1970s, in what many indigenous activists and human rights groups have labeled a wrongful conviction.
According to Eryn Wise, a member of the International Indigenous Youth Council, the young people who grew to admire Fallis at Standing Rock have only grown more determined as they’ve followed her case, particularly given the urgency of climate change and other environmental degradation, as well as the prevailing sense that their traditional lands remain under occupation by the U.S. government.
“What’s happened to Red Fawn has only inspired the youth to pursue this line of work more,” Wise said, “because they realize that without people standing up like she has, there won’t be a future for anybody.”