Resisting Climate Patriarchy

“What this story shows is that the criminal system isn’t broken. It was designed this way. It was intended to be a tool of oppression.”

Indigenous leaders and Water Protector allies protest the Canadian oil-and-gas-transport company Enbridge, during the expansion of the controversial Line 3 pipeline, in St. Paul, Minn., on Aug. 25, 2021. (Michael Nigro / Pacific Press / LightRocket via Getty Images)

Construction is complete on the Enbridge corporation’s Line 3 pipeline, which was dug under the Mississippi River to carry expensive, dirty tar sand oil from Alberta, Canada, to be refined in Wisconsin. Resistance, led by Indigenous women and Two-Spirit people, continues.

Due to Enbridge funding the outsized crackdown on Water Protectors, the front lines of resistance have expanded to include courtrooms, where Indigenous legal expertise has often proven decisive. In Aitkin County, Minn., the trial of Mylene Vialard (aka Ocean) reveals a pipeline of injustice—the structural violence of white settler-colonial capitalist patriarchy. 

The Arresting Officer: Slow-Walking Justice

According to the well-known Water Protector Big Wind Carpenter, a Two-Spirit member of the Northern Arapaho tribe, the context for the absurdity of Vialard’s arrest and trial is straightforward. Aitkin County borders the reservation of the Mille Lacs Band of Ojibwe, and most people in the area are either white or Native.

“The majority of the cops are white men,” Big Wind said, and “they target Indigenous people, people of color.”

In the summer of 2019, as Enbridge began transporting pipes, Big Wind gathered with other Water Protectors at Healing Souls, an off-reservation camp on Ojibwe-owned land. They quickly noticed a pattern of sheriffs harassing nontribal allies, forcing them temporarily off the property where they were guests. Later that summer, Sheriff Dan Guida, a white man, attempted to arrest Indigenous people for camping at a powwow.

A few months before Vialard’s August 2021 arrest, at the same location, Sheriff Guida interrupted while reporter Alleen Brown interviewed Big Wind about helicopters patrolling the area. Guida accused Big Wind of lying and later contacted Brown to apologize, admitting that Big Wind had been correct. The entire incident can be heard on the Intercepted podcast.

In 2021, Mylene Vialard joined the resistance led by Indigenous women at Enbridge’s Line 3 pipeline. (Marita Hoeh)

Big Wind summarized how Guida’s tactics figure into a larger escalation strategy: “He was trying to cause friction.”

Big Wind has seen Water Protectors of color badly injured by law enforcement and then charged with felony attempted suicide. On the day of Vialard’s arrest, they remember “being really scared, honestly, for Mylene and the other person who was involved, because of the way that the Aitkin County sheriff’s department was acting.”

The sheriff has become legendary among observers of Vialard’s trial, particularly regarding an incident captured on video the day of the arrest. Guida appeared to speak on his cellphone and indicated to observers that he was speaking to a “judge.” The prosecution was ordered to obtain records of this call, a routine procedure—Guida even offered on the record to go the phone company and procure the records himself—but it never happened, and there have been no repercussions.

The Prosecution: A Known Harasser Fails Upward

On Sept. 21, 2023, the North Dakota supreme court formally reprimanded Garrett Slyva for his menacing sexual harassment of a client, writing: “Slyva’s supervisor at the Public Defender office testified the physical contact with a female client was inappropriate and alarming because it was a female client who was incarcerated, and therefore, vulnerable. The Public Defender’s office terminated Slyva.”

Garrett Slyva is now the prosecuting attorney in Vialard’s trial.

Vialard’s defense lawyer, Claire Glenn, said the ruling “was disturbing and even painful to read. … She was so afraid of Mr. Slyva that she asked jail staff to listen in to her attorney-client phone calls. That’s the one form of privacy that incarcerated people retain: their ability to have private, attorney-client-privileged communication. She gave that up and gave up the legal protections of the attorney-client privilege.”

Glenn said that “Slyva received a slap on the wrist, and nothing more—there’s no ‘you need to meet with our therapists, you need to not represent clients until we clear you, you can’t practice until we do a psych eval to make sure that you have figured out your issues that you have with sexual harassment and violence against women.’

“He is now in an even more powerful position,” Glenn continued, “where as a prosecutor he is interacting with defendants who are unrepresented, of which there are many in northern Minnesota. He is interacting with alleged victims. He is interacting with many, many vulnerable people.”

Guida’s misconduct, as reported by observers of Vialard’s trial, is too extensive to list. Slyva claimed people in the gallery were talking to jurors, but when polled, not one juror confirmed it. Slyva repeatedly referred to rulings already dismissed and, therefore, not allowable. Slyva disregarded Vialard’s testimony about her immigration status, attempting to claim she was not an American citizen.

Big Wind, who has attended many trials and has personal experience facing charges related to direct action and civil disobedience, said, “Mylene’s trial was wild. I had never seen so much unprofessionalism from the prosecutor.”

The Judge: Resuscitating Aitkin County’s Old-Boy Network

The list of misconduct by Senior Judge Douglas P. Anderson is similarly vast. Claire Glenn, Vialard’s lawyer, “had to continuously bring up the sexism that was happening in that courtroom. The judge was just bending the rules,” as Big Wind described it.

Repeatedly, the judge should have elicited Glenn’s comments before making decisions, though he always remembered the prosecution’s. A police officer witness listened in the gallery behind Glenn and Vialard, and they only learned of it when that witness took the stand. Glenn even had to open a law book to teach the judge and prosecutor so they could perform their jobs. And on and on and on.

In one of Glenn’s requests for a mistrial, she pointed out that the exhausting stream of misconduct seemed like a strategy for poisoning the jury against her, since it forced her to make so many objections that she could appear as though she were in contempt of court.

Glenn, a Minneapolis-based attorney currently on staff with Climate Defense Project, has represented nearly 100 Water Protectors so far, including Winona LaDuke, Tania Aubid and Dawn Goodwin, three Native women whose criminal charges, also in Aitkin County, were dropped by Judge Leslie Metzen.

For Glenn, it is no coincidence that the “ruling came from a judge who was the first woman appointed to the judicial districts that she served in for the duration of her career, who was willing to listen and was willing to be brave and make a ruling about what is right in the broader sense, even as the law twists itself in knots to create mechanisms for power to retain power.”

Such victories are rare, however, and the number of cases is significant. Glenn said that “because Enbridge was reimbursing law enforcement, there were huge incentives to criminalize and arrest people beyond what the system could handle through the judiciary.” In response, many judges came out of retirement, mostly older white men like Judge Anderson.

Georgia Bowder-Newton, who met Vialard through their mutual participation in the Giniw Collective and has attended all five days of the trial, described “hearing things from people who have been to many trials, that this was the most farcical trial that they’d ever been to. I was like, ‘Okay. Noted. I should expect this.'”

The Jury: ‘Like Fantasy Football’

Despite the large Indigenous population in the area, there were only two people of color among the several dozen potential jurors: a Latino man and an Indigenous woman. By picking them early and later having them stricken, Prosecutor Slyva ensured they could not participate. As Big Wind quipped, “It’s like fantasy football.”

Big Wind also described how a teacher who expressed support for the civil rights movement and had attended a Women’s March in the Twin Cities was stricken by Slyva on that basis.

The resulting jury, though equal in numbers of women and men, was conservative, mostly older, white people. Vialard mentioned that the Giniw Collective’s camp had been the opposite: “The age spectrum was pretty wide, with a fairly notable absence of middle-aged white activists.”

“Everybody knew the sheriffs and knew the police,” according to Bowder-Newton, who said one juror shared that her husband goes hunting with Sheriff Guida, and another juror was the financial manager of the retirement accounts of several officers in the sheriff’s department. The jury also, according to Bowder-Newton, included a former police officer, individuals who teach and babysit for the sheriff’s children, a woman who had recently worked as a jailer and thought she might have encountered Vialard, and a former Enbridge employee.

Bowder-Newton recalled defense attorney Glenn pointing out that the jury pool was not appropriately representative. Judge Anderson dismissed Glenn’s objections.

According to attendees seated in the gallery, one juror frequently mouthed gendered obscenities such as “b*tch” and “f*ck her” when Glenn approached the bench, at which another juror laughed out loud. Glenn asked that the juror be dismissed. He was not.

… Even the Bailiff

Vialard’s defense requested a Zoom link for the public to attend the trial online, as had been available during the pretrial proceedings. The motion was denied, but a Zoom meeting was set up for a lawyer on the defense team to participate long-distance due to illness, with the clear understanding that no one else would be admitted.

Many attendees reported noticing a court bailiff listening to the trial on his laptop without earbuds or headphones while he supervised the front entrance to the building. The sound could be heard on three floors as it wafted up the stairwell, including when the jury was dismissed.

The System Was Built This Way

“The state is feeling threatened by the amount of pressure that they’re receiving,” said Big Wind. “This is an intentional way to silence dissent, to weaponize the law.”

To date, there have been four aquifer breaches on the new Line 3, including one where Vialard was arrested. While Vialard faces trumped-up felony charges for her nonviolent direct action in Aitkin County, Enbridge’s misdimeanor charge for the breach in Clearwater County has been dropped.

Vialard’s sentencing hearing is scheduled for Monday, Nov. 20.

The oppression of climate patriarchy exemplifies what feminist philosopher Marilyn Frye explained as a double bind: If we protect the earth, we are persecuted, and if we don’t, the results are catastrophic.

Glenn sees the current repression of climate activism as an intensification of business as usual: “I’ve heard people say things like ‘the criminal system should be going after the real criminal.’ But I think what this story shows is that the criminal system isn’t broken. It was designed this way. It was intended to be a tool of oppression. It originated in the South from slave patrols. It originated in the North from state-sanctioned union-busting violence.

“We are all stronger when we recognize that activists are not special. The criminal system is violent to everybody. It is how the system is designed to function.”

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Carolyn Elerding, PhD, is a feminist author and freelance editor. Find her on Twitter @celerding and Mastodon