Alexander Simon saw no danger when he decided to join a prayer walk in North Dakota on October 22, 2016. The group he was with walked atop ancient Native burial grounds singing songs and playing drums. They intended to show respect for the site especially because the 1,172-mile-long Dakota Access Pipeline was set to run through it.
The 27-year-old audio and sound educator didn’t think it’d land him behind bars, though.
“The idea that I could be arrested was not really there until we got to the point where it was just us in a line facing [the police] in a line, and they start coming at us with mace and start picking people off,” Simon told Earther. “Then, it became clear that all bets were off.”
Tensions were high outside the Standing Rock Sioux Tribe Reservation last year. Hundreds and at some point, thousands of people traveled to North Dakota to protest the crude oil pipeline that Native people said threatened their water resources and cultural sites. A number of camps were erected in the warmer months and stayed put even amid the winter’s first snowfall.
Direct actions and peaceful walks (like the one Simon took part in) would often lead to clashes with local law enforcement, which The Intercept uncovered was working directly with pipeline developer Energy Transfer Partners and the private firm it hired to surveil the protests, TigerSwan.
That’s the world Simon was enmeshed in. He felt a need to stand up and advocate for indigenous rights. That ultimately cost him his freedom even if just temporarily.
Simon got arrested that day last year and served three days immediately after, but his actual sentencing didn’t happen until more than a year later due to the state pushing set trial dates further and further. On October 19, 2017, Simon was finally sentenced to 18 days in jail after being found guilty of physical obstruction and disorderly conduct, but his good behavior and time served last year reduced his sentence to 13 days and he left the Burleigh Morton County Detention Center on Tuesday.
There, he was forced to watch TV or sleep all day. He had no access to the outdoors, which was quite tough for a guy who lives on 400 acres in New Mexico. “I really, really, really appreciate an open, sprawling landscape and things to climb on and long walks,” Simon said. “That being taken away from me was especially difficult.”
Mary Redway, a 64-year-old retired biologist from Rhode Island, also served a jail sentence for disorderly conduct; hers was six days. Law enforcement close to 100 officers made up of both North Dakota and out-of-state law enforcement arrested about 140 others that day last year, but these two are the only ones to face jail time so far.
The state dismissed a majority of the charges for lack of evidence, according to the Water Protector Legal Collective. Even others who were convicted didn’t face any jail time. The state attorney didn’t recommend jail time for Simon and Redway, but Surrogate Judge Thomas Merrick of North Dakota’s Southeast Judicial District ruled otherwise.
“I intended the sentences I imposed to be neither too harsh nor too lenient,” Merrick recently told The Bismarck Tribune. “If that organization thinks I missed the mark, I do not see how that demonstrates any bias. Mr. Simon professed financial problems, so I waived all his fees. Ms. Redway had steady income and owns a home so her fine and fees seem appropriate.”
Earther reached out to the North Dakota State Attorney’s Office and to Merrick directly for comment and did not receive a response in time for publication.
Simon sees Merrick’s decision as a personal attack. He described the judge as “punitive” and “vindictive.”
Other state judges have entered into conflict with pipeline opponents recently, too. In September, Judges of the South Central Judicial District issued a petition asking the North Dakota Supreme Court to end provisions for out-of-state attorneys for these cases, which the court denied. The Supreme Court originally allowed this practice in January to help with the hundreds of court cases resulting from opposition to the Dakota Access Pipeline.
In the 300-plus trials Simon’s attorney, Sam Saylor, has served as a public defender for, he can’t remember seeing a judge take such drastic sentencing action, especially when the state attorney suggests no jail time at all. Saylor is with Freshet Collective and the Water Protector Legal Collective, both of which were created to provide free legal support to those arrested during the Standing Rock encampments last year.
Sentencing is supposed to serve a purpose beyond just punishment, Saylor told Earther. “Just punishing someone for sake of punishment does nothing,” he said. “It just kills free speech.”
Now, the team is appealing. “What we’re really claiming is you can’t single out one protester based on your bad feelings about a bunch of protesters,” said Saylor.
They hope, first, to reverse the court’s verdict on Simon, but they’re also hoping to set a precedent through a Supreme Court opinion that can guide trial courts going forward, Saylor said. Twelve people are still awaiting trial from the events October 22, 2016. Depending on the judge they receive, they could meet a fate similar to Simon and Redway.