Forgive Us Our Trespasses: Restricted protest and property rights at Standing Rock strikes a chord in Baltimore

The trespassing arrests of Dakota Access Pipeline protesters in and around the Standing Rock Reservation in North Dakota remind me of how African-Americans are levied with the same type of charges in urban public housing projects throughout the country. An eerie similarity exists between the way the U.S. government has treated Native and African-Americans particularly in the area of property rights as a means to wage a greater war of restriction and segregation on those two oppressed populations. As a white public defender of over 12 years in Baltimore, I've had a front row seat to watch the police unfairly restrict people's freedoms to be in certain areas, and after a recent visit to North Dakota to assist in and observe some of the cases generated from the Standing Rock protests, I see parallels.

The Great Sioux Nation once spanned the majority of the Dakotas and beyond just as other Native American tribes inhabited large chunks of land in other parts of the country. In an effort to weaken the Sioux's power and perceived "threat," the government (ironically made up of immigrants) first split Sioux lands apart and gradually dwindled them down into smaller reservations like Standing Rock over time. Today, reservations often have stark living conditions and few amenities. The Feds have always maintained a hand in the ownership rights to Native American lands and to a lesser extent into the enforcement of their laws. Basically, the U.S. took the real estate of Native tribes and reassigned their peoples to reservations without allowing autonomy in the resulting territories. Meanwhile, indigenous people have always been mistreated, harassed, and ignored (when needing help) by federal and local police. Forced into isolated areas of the country as conquered people, Native Americans have been rendered voiceless.

American cities have gone through renewal phases over time, especially in recent decades where movements to gentrify urban centers have displaced African-American populations. Beginning in the 1930s, public housing projects offered government sponsored solutions for a lack of affordable housing in cities. However, once made accessible to all races toward the 1970s, the projects, combined with red lining and de facto segregation also led to an ulterior motive of corralling minority groups. Many projects in Baltimore and the nation have dilapidated living conditions and are often ignored rather than maintained by housing departments. Also, as I've known for my whole career, but the DOJ has now finally documented, residents in these areas are subjected to illegal stops and searches by police at much greater rates than in white communities. Even worse, if a project lies on desired real estate, cities can sell the project's lands to preferred private institutions or prominent businesses. These sales may result in a spike in the local tax base, but not without neighborhood costs. Residents are forced from their homes and relocated or dispersed—similar to what happened to Native Americans. The inescapable fact is that projects and reservations, even with their faults, are still people's homes.

Despite the Sioux's legitimate claims to certain land rights outside of "government recognized" reservation borders (because Standing Rock was established through a non-ceded, or one-sided, treaty) authorities still consider many of the actions taken by protesters to be trespassing. Meanwhile, in housing projects in Baltimore and across the nation, individuals, mainly African-Americans, get charged with trespassing in the face of being trapped in their neighborhoods by high rents and governmental policies. In the projects, people often aren't able to freely visit loved ones or simply pass through without getting stopped by police, while individuals on native lands want to be unencumbered to visit sacred sites like burial grounds and manage their own environment. People on reservations and in projects feel occupied by law enforcement and frequently can't even find a sympathetic ear when an officer shares their skin color. It's a double whammy; the government has cornered segments of our population, yet wants to strictly enforce property rules as a method of further forced isolation. In Standing Rock, the oil and gas industry has manipulated stepped-up law enforcement efforts while the demands of gentrification and tourism inspire police crackdowns in cities.

Trespassing can also be viewed as a pretext used to stop an individual, a reason to accost, which, unfortunately, courts validate. It's a petty charge, basically a "nuisance" offense. Trespassing is commonly used against protesters, but it's controversial. The Maryland legislature even allows for the eventual expungement of trespassing convictions. Many trespass cases get dropped once they end up in court. Often, police want more. What may begin as a trespassing arrest leads to searches netting drugs and weapons, or trumped up resisting arrest/disorderly conduct charges depending on the nature of an interaction. Now a case gets serious. In Standing Rock, protesters who gave officers an ear full during an arrest (as they have a right to) got hit with additional disorderly conduct charges similar to cases I handle in Baltimore. I see incidents in Baltimore blown way out of proportion and the same thing occurred in many Standing Rock cases.

Nearly everyone arrested in the NDAPL protests had to post a cash bail (no bondsmen allowed), including trespassing only cases. This is harsh even for Baltimore, which has struggled for bail reform. Astronomical, unregulated towing fees are being assessed on Standing Rock protesters whose vehicles were towed. This price gauging is reminiscent of a "kickback" scandal involving Baltimore Police and tow companies a few years ago.

In the face of this unfairness, we should step back and consider the larger meaning of pursuing criminal actions for minor offenses like trespassing, especially when the government comes to the table with historically dirty hands. These laws are not as strictly enforced in more affluent areas of the country. Moreover, we all pay for the increased costs to militarize our police and prosecute minor incidents. It's not worth it. Instead, listen to the voices of our oppressed populations and focus on housing, jobs, and education. As over 800 Standing Rock protester cases begin to flood the unprepared courts of North Dakota, we are only compounding the injustices against indigenous people and African-Americans with such meaningless arrests and prosecutions both there and in cities across the country.

Todd Oppenheim is an attorney in the Baltimore City Public Defender's Office. Twitter:

@Opp4Justice. Email:

Copyright © 2019, Baltimore City Paper, a Baltimore Sun Media Group publication | Privacy Policy