​Indian Fighting Today: Gibson, Dunn and Crutcher

By Winona LaDuke

winona@winonaladuke.com

The business of Indian Hating is a lucrative one. It’s historically been designed to dehumanize Native people so that it’s easier to take their land. ‘Kill the Indian, save the man,” manifest destiny, and “merciless Indian savages” are all phrases which underscore the deep hatred of the American Empire for Indigenous peoples. After all, this is our land, indakiingimin, the very land to which we belong., And to make America, it’s important to steal it.

That’s pretty much history — a lot of theft: land, cultural items and people. And where possible, the laws themselves. It starts with hating and expands to war. Welcome to the modern Indian Wars. Some of them are in the courtroom.

There’s a long list of law firms who specialize in modern day Indian fighting. It’s usually to do with tribal jurisdiction over water, land, or children, all pretty basic for the survival of a people. Most of those law firms have other clients like real estate or title insurance folks, mining companies, oil companies, county governments and the like who want to have access to more Indian land or people. Those interests need a modern cavalry; that’s some lawyers.

Gibson, Dunn and Crutcher is a big shot law firm for fighting Indians. That’s sort of their practice. These days, they are the attorneys for Energy Transfer in a $300 million case known as a Strategic Lawsuit Against Public Participation (or SLAPP suit), intended to stop Greenpeace, the international environmental network, from supporting Indigenous peoples. Gibson, Dunn and Crutcher appear to want to stop Indigenous peoples from protecting their lands. And while they are at it, scare away any allies to protect those lands.

It’s called a SLAPP suit. SLAPP lawsuits are more typically targeted at journalists and human rights defenders. They are meant to shut down anyone who opposes the corporation which sues. Thirty-two states have passed regulations discouraging these lawsuits, not only because they deter basic civil rights, but also because they waste a lot of time in the court. North Dakota is not among those 32 states.

Filed originally in 2019, Energy Transfer (ET) accuses Greenpeace of criminal behavior — trespassing, vandalism, arson, as well as the harassment and assault of construction workers — to stop the Dakota Access pipeline. Energy Transfer basically holds Greenpeace responsible for most of what happened at Standing Rock.

That’s rather surprising, since many of us were there, and frankly had no idea Greenpeace was in the camp. As a matter of fact, ET contends Greenpeace orchestrated a campaign that ultimately convinced the federal government to halt construction of DAPL for roughly five months. A lot of us wrote letters to the federal government and the Army Corps of Engineers and Greenpeace didn’t even give us pencils.

It is likely that Gibson, Dunn and Crutcher isn’t just interested in Greenpeace; they are actually interested in diminishing tribal sovereignty, and tribal rights. Let me explain.

Supreme Court and ICWA

Remember the U.S. Supreme Court case on the Indian Child Welfare Act? The Brackeens, in Haaland v. Brackeen (one of three lawsuits where no Native foster parents wanted to adopt Native children) hadGibson, Dunn and Crutcher represent them for free. That’s right, pro bono.

The case, if it prevailed, would have gutted the Indian Child Welfare Act. That’s a hard fought for law to protect Native communities.

Mother Jones Magazine explains why pro bono made sense to the firm: “Taking a financial loss litigating a family law case is a small investment toward advancing the interests of the rest of the firm’s clients in diminishing the last, tenuous pockets of tribal sovereignty…. make no mistake that it is a business decision. All the ‘everyone deserves a lawyer’ rhetoric doesn’t play here — the firm is taking on a pro bono case for a family with seemingly no injuries as part of a broad attack on tribal rights.”

“One of the things that tribes need to continue to exist is their children,” says Shannon Smith, executive director of the Indian Child Welfare Act Law Center, which provides legal services for Native families. “Things just don’t exist if you don’t have kids.”

Ultimately, in a narrow margin, the Supreme Court affirmed the Indian Child Welfare Act, and ruled against the Brackeens, dashing Gibson, Dunn and Crutcher’s hopes. They have other battles.

Welcome to the modern-day Indian Wars.

Chevron in Ecuador

The Cofan are a water people who travel and live upon the Aguarico River in what’s called Ecuador. Because of American oil companies, they live in the oil wasteland.

Texaco began operating the Lago Agrio oil fields in the 1960s. By the 1990s, millions of gallons of crude oil had been spilled throughout the region. Toxic waste from drilling and refining was stored in unprotected pits, toxifying the soil and contaminating water supplies.

There were 30,000 plaintiffs in a case against oil producers, mostly Native. The case took almost 18 years to resolve, but in 2011 an Ecuadorian court ruled against Chevron, which now owned Texaco, ordering it to pay $18 billion. While that figure was later reduced to $9.5 billion, it still represented one of the largest judgments ever against an oil company. Rather than pay up, Chevron, the $200 billion company, refused to clean up and instead removed its assets from the country.

Enter Gibson, Dunn and Crutcher.

The attorney for the Ecuadorian Native people was a man named Steven Donziger. None of Donziger’s original 30,000 Ecuadorian clients — suffering and dying from cancers and other diseases that many believe are related to the oil contamination —have received a penny since the original lawsuit was filed in 1993.

The Ecuadorian court awarded $l8 million to the people of the river. Then it was halved. Three years after it all stopped in New York. Here’s what happened: Chevron’s attorneys, Gibson, Dunn and Crutcher, argued successfully that Steven Donziger had secured the $9.2 billion judgment by corrupt means. The lawyers argued that Donziger violated U.S. federal laws prohibiting attempted extortion, wire fraud, money laundering, witness tampering, and obstruction of justice, as well as the Foreign Corrupt Practices Act. That was in 2014. Then the state of New York arrested and disbarred the lawyer, Steven Donziger.

The river, the water, is still full of oil. And the people are sick. But Gibson, Dunn and Crutcher won.

Gibson, Dunn and Crutcher will be at the front lines of the Indian Wars in North Dakota. Looks like they hope to discredit Greenpeace, make them pay $300 million and be sure that no one says a peep about that dirty oil pipeline.

Greenpeace’s attorney Everett Jack told Southwest District Court Judge James Gion that “Greenpeace cannot be responsible for the entire protest without evidence.” Jack said only six people working for Greenpeace ever attended the demonstrations.

Greenpeace is a big fish in the environmental world.

But Lakota lands, waters and jurisdiction are a bigger fish. We will see how the case rolls out in Morton County, but ultimately Gibson, Dunn and Crutcher has proven to have a larger agenda for Indian Country. The last Indian Wars were dirty wars. The new Indian Wars are as well.