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.



Photo: Tom Stromme/The Bismarck Tribune/AP

As a condition of the plea bargain, federal prosecutors dismissed the count of discharge of a firearm in relation to a felony crime of violence, and the state of North Dakota, which had previously charged Fallis with attempted murder, agreed not to reinstate or pursue any charges related to the incident. Prosecutors have recommended Fallis receive a seven-year sentence, although U.S. District Judge Daniel Hovland can still impose up to 10 years in prison based on Fallis’s guilty plea to civil disorder and possession of a firearm by a convicted felon. Fallis’s attorneys are recommending a sentence of 21 to 27 months, including one year of time served. 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.”



Photo: Mike McCleary/The Bismarck Tribune/AP

Unanswered Questions 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.

An activist holds a sign outside the Army Corps of Engineers’ office to protest the Dakota Access pipeline, March 10, 2017, in Washington, D.C. Photo: Alex Wong/Getty Images