President bears blame for violence at Standing Rock

In the early pitch-dark morning on Nov. 21, Sophia Wilansky, a 21-year-old self-professed "water protector" from the Bronx in New York City, had much of her left arm blown off.

She had been trying to clear a bridge barricade preventing protesters from reaching the Dakota Access Pipeline construction site adjacent to Lake Oahe, an upriver reservoir on the Missouri River, near the Standing Rock Sioux reservation in North Dakota.

Her father says Ms. Wilansky was injured when police threw a concussion grenade that exploded when it hit her. The police say she was injured when a propane canister Wilansky and two companions intended to use as an incendiary device exploded.

Whatever the truth, President Barack Obama has  Wilansky's blood on his hands. Because two months before she was injured he signaled to the several thousand "water protectors," who since April have been camped in tepees and tents on land the Army Corps of Engineers manages, that trespass, vandalism and confrontations with law enforcement work.

Judge’s decision

On July 27, the Standing Rock Sioux tribe filed a lawsuit in U.S. District Court  to obtain a court order directing the Corps to revoke permits it had issued to Energy Transfer Partners, the company building the pipeline. The lawsuit was assigned to Judge James Boasberg.

On Sept. 9, he denied the tribe's motion for an injunction, among other reasons because the Corps demonstrated it had tried to consult with the tribe regarding the pipeline route and construction 20 times,  but the tribe refused to participate.

[The view from 2 sides of the Standing Rock front lines]

Boasberg's denial should have cleared the way for the Corps to grant ETP an easement to bury the pipeline under Lake Oahe, which is the last authorization the company needs in order to finish construction.

But less than an hour after the judge's decision the Corps, the Justice Department and Interior Department issued a statement in which they jointly said the Corps would not grant the easement until the agency decided whether it needed "to reconsider any of its previous decisions regarding the Lake Oahe site under the National Environmental Policy Act or other federal laws."

The joint statement would not have been issued without the approval of the White House. And since it is impossible for an executive branch bureaucracy, much less three in tandem, to move as quickly as the Corps, Justice and Interior departments did after Boasberg's decision. The plan to issue a joint statement had to have been made days, if not weeks, earlier.

President’s message

Six weeks later, on Oct. 25, when he was in Los Angeles raising money for Democratic nominee Hillary Clinton, Obama had a private meeting with Harold Frazier, chair of the Cheyenne River Sioux, whose reservation borders the Standing Rock Sioux's. The president told Frazier he was personally monitoring the Corps's reconsideration of its decisions regarding whether it should grant the builders an easement.

Then, during an interview Nov. 1, with internet site "Now This," the president announced, presumably at his direction, the Corps was "examining ways to reroute the pipeline" because he wanted the conflict between the Standing Rock Sioux and the Corps "resolved in a way that I think is properly attentive to the traditions of the First Americans."

Whose idea was it that the Corps, Justice and Interior departments to issue a joint statement? When was that decision made? How did the chair of the Cheyenne River Sioux obtain a private meeting with the president? And why less than a week after that meeting did the president say he was personally involved in ensuring the Corps resolved the Standing Rock Sioux's dispute with the agency over the pipeline in a way that reflects the tribe's "traditions"?

Back-channel connection

The possible answers to those questions share a back-channel connection the Standing Rock Sioux have at the White House.

As seen in 1991's Academy Award-winning "Dances With Wolves, or in the book "Bury My Heart at Wounded Knee," the story of the villainous 19th century military campaigns to ethnically cleanse the West of Native Americans remains one of the most emotionally powerful narratives in American culture.

In May 2008, when a then-Sen. Obama was running for the Democratic Party's nomination, he spoke at a campaign event at Crow Agency, Montana, attended by tribal leaders and several thousand Crow reservation residents.

Embracing the popular narrative, Obama began that speech by assuring the crowd he understood "the tragic history between the United States and tribal nations." He then promised, while "we will never be able to undo the wrongs that were committed against Native Americans," he would act to improve life on Native American reservations, host an annual Tribal Nations Conference in Washington, D.C., and "appoint an American Indian policy adviser to my senior White House staff to work with tribes."

The first policy adviser Obama appointed was Kimberly Teehee. After Teehee resigned in April 2012, the president appointed Jodi Gillette.

Who is Jodi Gillette?

Gillette is a member of the Standing Rock Sioux and sister of David Archambault, chair of the tribe and leader of the pipeline protests.

In June 2014, Obama made his first and only visit to a reservation — the Standing Rock Sioux's. With Archambault sitting on the dais wearing an eagle-feather war bonnet, the president spoke at a powwow at Cannonball, North Dakota, a small town near where Wilansky was injured.

In May 2015, Gillette resigned her position at the White House to become a policy adviser at Sonosky Chambers Sachse Endreson & Perry, a Washington, D.C., law firm that specializes in representing tribes and whose partner, William Perry, has long represented the Standing Rock Sioux. When she arrived at the firm, Gillette joined Perry as a registered lobbyist for the tribe.

An executive order Obama signed in 2009 prohibits Gillette from lobbying her former colleagues at the White House. But the order does not prohibit her from advising her brother and Perry and other of the firm's attorneys how best to lobby the White House.

And the executive order authorizes the director of the Office of Management and Budget to grant Gillette a waiver that exempts her from the lobbying restrictions.

If Gillette has been involved behind the scenes in influencing the president's and the Corps' response to pipeline protest, how influential may she have been?

In 2014, Obama told Native American leaders who attended that year's tribal conference: "I love Jodi Gillette of the Standing Rock Sioux Tribe." And when she left the White House, West Wing adviser Valerie Jarrett told the press Gillette "will be thoroughly missed."

But no matter how fond he is of Gillette, in September when its attorneys lost the Standing Rock Sioux's motion for an injunction, the president should have told Gillette's brother to tell the protesters that while reasonable people can disagree over the pipeline, the president expected all parties to conform their conduct to the rule of law.

Swayed by his affection for Gillette, or by his visit to Cannonball, or maybe by guilt regarding how the U.S. government mistreated the Sioux 100 years ago, Obama did not say that. Instead, first by the joint statement, and then meeting with Harold Frazier and his interview with "Now This," the president sent the opposite message.

And because he did, Wilansky, an idealistic, inexperienced young activist, is laying in a hospital bed with her arm blown to smithereens. There may be more violence soon to come.

Danger ahead

On Nov. 25, Col. John Henderson, commander of the Corps' Omaha district, sent Archambault a letter asking him to tell the protesters camped on land the Corps manages north of the Cannonball River that, beginning Monday, anyone still there "will be considered trespassing and may be subject to prosecution under federal, state and local laws."

Henderson would not have issued that edict unless the White House had signed off. Obama may now realize the mistake he made when he signaled to the protesters that trespass, vandalism and confrontations with law enforcement were accomplishing their objective — to intimidate the Corps into denying the pipeline builders the easement they need. It may be too late to regain control of the situation.

Protest leaders have said no one is breaking camp by Monday or any other date, and Archambault's response was to lecture the Corps that if it wants to dampen down an "escalating situation," it should say it will not grant the easement, and the protesters will presumably peacefully disperse.

[Governor orders evacuation of Standing Rock protest site, but no more forcible removals planned]

More than 5,000 "water protectors" are at the camp. The only way to remove that many people is by calling the National Guard. On Sunday, the Corps said it would not do that. On Monday, when North Dakota Gov. Jack Dalrymple issued his own eviction order, the state said it would not use force.

So if no one leaves by Monday, the stalemate will continue until Jan. 20. That's when President-elect Trump takes over and will decide how the Corps should resolve the situation.

Before that happens, Obama needs to do what he should have done in September: mount the bully pulpit and tell the "water protectors" to take down their tepees and tents and drive their pickups back to wherever they came from — before the next Wilansky winds up in a morgue rather than a hospital.

Donald Craig Mitchell is an Anchorage attorney, a former general counsel for the Alaska Federation of Natives, and author, most recently, of "Wampum: How Indian Tribes, the Mafia and an Inattentive Congress Invented Indian Gaming and Created a $28 Billion Gambling Empire."

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