Cheyenne River Sioux Chairman Harold Frazier is calling for the resignation of the local commander of the U.S. Army Corps of Engineers, Commander and District Engineer of the Omaha District Colonel John W. Henderson, based on conduct he said does not uphold the impartiality that federal authorities are legally required to maintain on federal land, impedes the constitutional rights of water protectors to engage in peaceful protest, and comments that he called racist and insulting.
In a scathing November 2 letter to Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy and Secretary of the Army Eric Fanning, Frazier recounted details of what he said was an extremely troubling phone call with Henderson regarding the continuing use of pepper spray, mace and rubber bullets against unarmed water protectors trying to stop Dakota Access Pipeline workers from building on federal land.
What started out as a relatively simple legal-housekeeping question turned into an exchange laced with racist comments from Henderson, as well as unproven allegations, Frazier said in the letter.
“In light of Colonel Henderson’s completely unprofessional, insulting, and perhaps illegal conduct, I demand his immediate removal from the Omaha District as he is unfit to handle a sensitive issue of this magnitude and has a proven incapacity to deal respectfully and maturely with Indian people,” Frazier stated.
The Assistant Secretary of the Army for Civil Works expressed support for Henderson in an e-mailed statement.
"While we have great respect for Chairman Frazier and the Cheyenne River Sioux, the Army has every confidence in Col. Henderson, Commander of the Corps of Engineers' Omaha District," the assistant secretary told Indian Country Today Media Network in a statement from Darcy's office. "He and his staff are working diligently with all of the parties involved in this important issue. They are also working hard to protect the public with consistent communication and transparency under these complicated circumstances."
Frazier said he had originally set out to ask a jurisdictional question about why individuals engaging in peaceful demonstrations on publicly owned Corps’ land had been maced and told they were criminally trespassing when the land was not privately held. He also wondered what DAPL construction workers, not to mention North Dakota National Guardsmen, were doing on the site at all, knowing that parent company Energy Transfer Partners does not have the permit to go under the river.
“I called Colonel Henderson to ask a serious jurisdictional question: Why were the North Dakota police threatening criminal trespass charges on publicly-accessible federal lands where they had no jurisdiction to protect a private construction site for a project that your agency has yet to authorize?” Frazier wrote. “Instead of engaging with me as you would expect a military officer of one sovereign nation to engage with the head of state of another sovereign nation about a serious jurisdictional issue, Colonel Henderson made a number of, frankly, offensive and off-point statements.”
“He accused the Tribe of violating the Rivers and Harbors Act because several demonstrators had constructed a hand-made bridge to cross the small tributary,” Frazier wrote. “The fact that he did not understand the difference between individual demonstrators (who may or may not be Indian, let alone members of my Tribe) and the sovereign government of the Cheyenne River Sioux Tribe should give all of us pause in light of the vast powers this man wields over Indian lands and Indian lives.”
Henderson went on to repeat numerous unfounded allegations made by Morton County North Dakota Sheriff Kyle Kirchmeier, among “a range of other alleged crimes he believed were committed by individual Indians or people Colonel Henderson may suspect are Indians,” Frazier wrote, including the almost constant accusations of violence being committed by water protectors, “almost none of which the Sheriff has ever substantiated with evidence, witness statements or arrests. Colonel Henderson particularly focused on Kirchemeir’s claim that an unidentified Indian had stolen or mutilated a rancher’s buffalo, perhaps having shot it with an arrow.”
Frazier said his jurisdictional question had yet to be answered.
“What this specious and unproven allegation had to do with my jurisdictional question, the unexplained collusion between the North Dakota law enforcement and the Corps, or the ongoing violation of human rights on Corps’ lands today, I cannot tell you. But the racist undertones of his allegations were not lost on me,” he wrote. “The real issue is this. Those lands are federal lands. They are apparently free and open to the public. Even if there is some restriction on the right of demonstrators, including members of my Tribe, to exercise their Constitutional rights on this land, I am not aware of North Dakota’s authority to arrest and detain for criminal trespass on this land.”
Frazier demanded that the Corps explain “why it has deputized North Dakota law enforcement agencies to spray unarmed people with mace, shoot them with rubber bullets, and terrorize them with guns and helicopters on federal property,” he wrote. “Additionally, what other U.S. Army Corps of Engineers or Department of Defense officers approved the Corps deputizing state law enforcement officers to enforce federal law? The Morton County Sherriff’s Department, who has been proven to repeatedly engage in unreasonable use of force and has only escalated tension in the area, are now federal actors.”
Frazier goes on to “demand the immediate removal or reassignment of Colonel Henderson out of the Omaha District,” his letter stated. “As a military officer, Colonel Henderson is still governed by the military code of conduct. It my understanding the Department of Army personnel are required to avoid any action that might result in or reasonably be expected to create the appearance of giving preferential treatment to any person or entity, losing independence or impartiality, making a government decision out of official channels, or affecting adversely the confidence of the public in the integrity of the government. I believe his actions are unbecoming of a federal employee and have jeopardized the safety and welfare of hundreds of water protectors who are exercising their constitutional rights. I truly believe that he lacks the basic knowledge of federal Indian law and the history of the dam system he is charged with overseeing, the common respect for the public, the maturity and professionalism to handle this serious national issue which concerns us all.”