32
Political Theater
If you choose to protest the actions of the federal government, the best time to do so is during a Republican administration. Democrats, in my experience, appoint competent people as U.S. attorneys. Republicans appoint political flunkies who may not be bright, but who are loyal and will follow orders, no matter how absurd. The federal lawyers introducing what they called “evidence” against us were Earl Kaplan, a Justice Department lawyer from D.C.; William F. Clayton, U.S. Attorney for South Dakota; and his prosecutors, Assistant U.S. Attorneys David R. Gienapp and Richard Hurd.
Our strategy was never to allow the squeaky-clean, perfectly dressed G-men to tell their lies without constantly challenging them. We had to show the jury that although those guys could afford decent tailors, they were still liars. In addition to what our lawyers did, Dennis and I jumped up to object or protest at every opportunity. Usually those interruptions came at the wrong time, legally speaking, but it was guerrilla theater. We were trying to raise issues that the formal legal system wouldn’t allow.
As always, the Great Mystery—some people might call it luck—played a big part in our defense. On February 18, 1974, Mark Lane was in Deadwood, South Dakota, a tiny Black Hills town. While waiting to testify to a grand jury about the murder of Pedro Bissonnette, Mark had a chance conversation with Joseph Pourier, manager of Bison State Telephone Company at Pine Ridge. Pourier himself had installed telephones at the government roadblock and the trading post at Wounded Knee. He said that by FBI order, both phones shared one line, so anyone calling the trading post would be heard at the roadblock. He also said U.S. Marshal Tommy Hudson had demanded a key to the telephone exchange. After giving it to him, Pourier noticed that new wiring had been installed. Later, while putting phones into the BIA headquarters, where the FBI had set up shop, he saw equipment that was used only to monitor telephone lines. The implications of an illegal wiretap at Wounded Knee were staggering. Our attorneys had called to or from that phone during the siege to talk to us and to dozens of other clients around the country—and the FBI had heard every word. So much for attorney-client privilege. So much for the U.S. Constitution!
While cross-examining an FBI agent, we learned of a letter written by W. Mark Felt, the FBI’s second-ranking official during the siege. The letter was not in the FBI files, which we had subpoenaed and were legally entitled to see. The handwritten note was to Henry Petersen, head of the Justice Department’s Criminal Division. It expressed Felt’s dismay after a judge had ruled that the “wiretap application in the Wounded Knee case was based on information from an illegal wiretap.” When we subpoenaed Felt and asked him about the letter, he said he had written it only to dispel doubts that the FBI might do something as terrible as unauthorized wiretapping. Felt admitted to writing it on personal stationery instead of FBI letterhead, but denied that his intention was to keep the damning document out of official files. Felt, who would in 2005 admit to being “Deep Throat” for Washington Post reporters Carl Bernstein and Bob Woodward, was also indicted for authorizing illegal break-ins during the Watergate era, but was pardoned.
Joseph Trimbach, who had been the FBI supervisor for the Dakotas and Minnesota, testified under oath that there were no wiretaps at Wounded Knee, but later said he had forgotten about them. He also said he had neither seen nor signed a request for a court order to authorize the wiretaps. When that very document was produced, he calmly denied that the signature on it was his. That was so unbelievable that a senior agent was called by the government. He testified that the affidavit submitted over Trimbach’s signature wasn’t really signed by him—in the FBI, he said, simply because a man’s name appears as a signature doesn’t mean he actually signed it. Judge Nichol was stunned. He said, “You mean that you submit a document here, an affidavit under oath, signed by Trimbach, and he may not have actually signed it?”
The agent said, “That’s why he testified that he knew nothing about it.”
“Before I became a judge,” replied Nichol, his voice dripping contempt, “I was an assistant U.S. attorney for the Eastern District of South Dakota when Mr. Trimbach was agent in charge here. We became friends, and ever since, on my birthdays, I got a card from him. I’m now shocked to realize that the card I got last week and maybe the ones for years before that were never really sent by him at all.”
FBI special agent Gerald J. Bertinot Jr. testified about FBI wiretapping at Wounded Knee. He admitted listening to our conversations. He thought it was necessary even though there was no court order. He tried to persuade the jury that since he and his fellow agents never got a court order and didn’t follow their own strict legal procedures, there hadn’t really been any wiretapping. In technique and in scope, he was the biggest, boldest liar we had seen yet, leagues ahead of his peers. Then he outdid himself, testifying on several crucial issues relating directly to the charges against us. He claimed to have taken four Molotov cocktails from the trunk of a car at a roadblock. The car was under a flag of truce and was leaving the Knee with Bobby Burnett, son of the Rosebud tribal chairman, dazed and bleeding from a gunshot wound, in the backseat. Under cross-examination, Bertinot said he had seen no flag on the car, hadn’t bothered to report the incident or forward the “evidence” until the next day, and hadn’t called in to get permission to search. He said the incendiaries had been placed in the trunk by Dennis and me. All that was contradicted by other government evidence.
Late in the day, while Bertinot was still on the stand, Dennis and I both rose and said, almost in unison, “Your honor, we’re putting this man under citizen’s arrest for illegal wiretapping.” That took everyone by surprise. Judge Nichol said, “You’re going to have to let him finish his testimony—I won’t allow you to arrest him in my courtroom.” Dennis and I turned around and, in loud voices, told our WKLD/OC legal assistant to alert AIM security. “Get downstairs and make sure this criminal doesn’t leave this building without getting arrested,” we said. When the judge had quieted everyone down, Bertinot finished his testimony. Nichol said, “Court is adjourned for the day,” and headed for his private exit. As soon as he had gone, bedlam erupted. Dennis and I rushed the witness stand, but several marshals jumped in to hold us off while others got Bertinot out the judge’s door.
A few years earlier, Saint Paul had built an innovative system of enclosed second-story bridges and walkways to connect downtown buildings so people could get around during the bitterly cold winters. Knowing that Indians were waiting and watching on every floor, marshals hustled Bertinot through the skywalk to an office building across the street. Dennis and I, backed by a couple of other AIM guys, were right behind. For more than fifteen minutes, we chased those feds all over downtown Saint Paul, through department stores, offices, and little shopping centers. It was like a scene out of The French Connection. Bertinot and his escorts ran and dodged and stumbled, knocking things out of the way—people, store displays, news racks, tables. We were on their heels, leaping and dodging and bumping into walls and the debris in our path, while slowly gaining on them. Finally, they rushed through a store and into a parking lot and dove into a waiting car. Bertinot was on the floorboard when it peeled out, burning rubber. He flew to Detroit that afternoon, but our attempted arrest was a public-relations coup that made all the newspapers—and the jury got our message.
Felt’s letter and all the other wiretap documents were only a few of what would eventually prove to be hundreds that the FBI had withheld from us, despite the court’s repeated orders to turn over all such evidence. Among them was a report, prepared by Senator Henry “Scoop” Jackson’s subcommittee on Indian affairs, that discussed the involvement of the military at Wounded Knee. We knew everything from Phantom jets and APCs to radio gear and hundreds of support troops had been deployed, and that Colonel Volney Warner, chief of staff of the Eighty-second Airborne, had served as an FBI adviser. All that was illegal without a presidential proclamation. The posse Comitatus statute prohibits use of troops in civil matters. Since charges against us included “interference with law enforcement officials lawfully engaged in the performance of their duties,” those charges should be dismissed if we could prove illegal military involvement. For months, the feds refused to give us the Jackson report. When finally they were forced to, they withheld the pages proving illicit military participation.
But the spirits continued to guide our defense in strange ways. A few days later, Richard Hurd, the chief prosecutor, accidentally gave a copy of the report with the missing text to a newspaper reporter. By chance, our attorney Ken Tilsen later discussed the report with the journalist. It became obvious that they were talking about two different documents. Comparing them, we learned that once again, the government had withheld key evidence. Hurd had the gall to say the omission was “accidental.”
Judge Nichol was also very skeptical.
Listening to months of testimony, much of it tedious and repetitious, Dennis and I sometimes amused ourselves by drafting tongue-in-cheek press releases. The media became our unwitting collaborators. One such release, reported almost verbatim by the Associated Press, was printed solemnly as page-one news by newspapers throughout the Great Plains. The Pierre (South Dakota) Daily Capital Journal said:
AIM DECLARES SOUTH DAKOTA A “WAR ZONE”
ST. PAUL, Minn. (AP)—The American Indian Movement today declared South Dakota a “war zone” and called for a national boycott to discourage tourism in the state.
The statement said in part…“The Central Committee of AIM warns all tourists that if they travel to South Dakota, Indian people will assume that they are either there to kill Indians or to help Indians.”
It advised those going to South Dakota to kill Indians to notify U.S. Senator George McGovern, Lt. Gov. William Dougherty or U.S. Atty. William Clayton “for further assistance.”
AIM said such South Dakota visitors would “be there at their own risk.”
Those going to help Indians could fill such roles as doctors, nurses, clerks, teachers, X-ray technicians or ambulance drivers, the statement said. Purpose of the boycott, said AIM, was to discourage tourism, non-Indian travel and vehicles on Indian reservations.
AIM also said all-out-of-state vehicles traveling on Indian reservations and without Indian permits would be stopped and impounded and “cars would not be returned.”
Indian patrols will begin “constant surveillance” against non-Indians suspected of being enemies and assassins, AIM said.
It was twenty years before I learned about that newspaper story. When I finally read it, I laughed until I cried.
In late April, Nichol recessed court for a week and went off to a conference, and I went to a sacred pipe ceremony on the Cheyenne River Reservation. It involved the Lakota Nation’s most revered object—the sacred white buffalo calf pipe, which was brought to us, according to my ancestors, long ago by Calf Pipe Woman to give us spiritual direction. She appeared to two hunters in search of buffalo, looking very beautiful in a white dress, red leggings, red shawl, and red porcupine quills on her moccasins. On her back she carried a large bundle wrapped in buffalo hide. When one of the hunters expressed carnal desire for the woman, the other one told him to shut up. Calf Pipe Woman came within speaking distance and said, “Why don’t you do what you feel like doing?” Approaching her, the aroused hunter took off his clothes. Suddenly the woman and this eager hunter were covered by a glowing white cloud. The other man ran for his life. When he turned around to see what had happened, the cloud rose. Calf Pipe Woman was as before, but the first hunter had become a pile of bones. The woman told the man not to be afraid—such things happened only to people with evil thoughts or who did bad things.
Calf Pipe Woman told the hunter to go to his camp and tell the leader to prepare a lodge in a certain way and to invite the best people in the camp to a ceremony. She then appeared in the camp to say that the sacred pipe in her bundle came from Wakan Tanka, the Great Mystery. It was his gift to the Lakota. Through it, Wakan Tanka would hear their voices. Calf Pipe Woman instructed my ancestors in the way of the sacred pipe—how to use its powerful medicine for good and never for evil. She taught them the keeping of the spirit, which honors those who leave this world for the next—a ceremony of death, grieving, and letting go—and the releasing of the spirit, the end of mourning. She taught the inipi purification ritual. Before leaving, she told the Lakota people, “I may not return as you see me now, but I will come back to tell you about the other sacred ceremonies.” Then she walked away, changing into a white buffalo calf and trotting across the prairie to disappear.
Eventually, we Lakota received more holy ceremonies from the Great Mystery. There was the wiwongwaci, or sun dance; the unblecuyapi, or crying for a vision, which is used to seek the spiritual direction that governs all actions in life; the throwing of the ball, which keeps the community well by reminding us of collective responsibilities; the making-of-relatives ceremony, a citizenship rite which brings outsiders into one’s family, clan, community, and nation; the entering of womanhood, hunkayapi, acknowledging a girl’s passage through puberty; and in the late nineteenth century, our most recent ceremony, the yuwipi, for curing.
Today, that sacred pipe—the very one brought by Calf Pipe Woman—is kept at Green Grass, South Dakota, on the Cheyenne River Reservation. I had been there first in 1972, when Crow Dog took several people to meet the pipe’s keeper after our takeover of Gordon, Nebraska. The sacred pipe was kept in its original buffalo-skin bundle in a little corrugated tin shack that was painted red. At that time, it was not unusual for drunks, usually cowboys—breeds, not white men—to come out there to raise hell, by driving around and shooting at the tin shack.
For centuries, the sacred white buffalo calf pipe had been kept by generations of women in a single family, but because of BLA-caused dysfunction in that one family, the last female keeper passed it on to her grandson, Orval Looking Horse. The sacred pipe, which less than half a century before had been considered so powerful that the BIA wouldn’t even allow it on other reservations, was by the early 1970s all but forgotten. No one came to see it. Only the most traditional full-bloods seemed to care that it still existed, and they kept their reverence as a family secret. I’m amazed that we still have the pipe, that it is not in a museum. What are the chances that some Jewish family had kept the stone tablets Moses brought down from Sinai for all this time? It blows me away to think about it.
That night in April 1974, Orval Looking Horse brought out the big bundle with the sacred pipe inside. We carried it and prayed with it and had a ceremony with it. None of us felt worthy of actually seeing the pipe—it was enough to handle the bundle. I knew right then that the Lakota Nation still had a chance, that we could still survive as a people as long as we possess the sacred pipe. I also knew that we couldn’t keep it hidden any longer. It belongs to the Lakota people and must be brought to them. Only the pipe can restore cangleska wakun, the sacred hoop representing the unity that binds our nation together with shared values and a clan system. The hoop reminds us that everything that is holy and good lies in a circle, that the universe reenergizes itself. Most Eurocentric-male linear thinkers, however, believe that all matter decays and disappears. They know nothing of regeneration or reincarnation—or anything about life itself.
Within the hoop, which encloses the entire universe created by the Great Mystery, is the sacred tree of life, which symbolizes the spiritual strength of the Lakota Nation. For centuries, the tree has been dying. The great medicine man Black Elk said that perhaps only one small root of the sacred tree of life is still alive, and we must nourish it and bring it back to health.
After the sacred pipe ceremony that April, we drove directly from Green Grass to Sioux Falls, arriving on a Friday. We watched the trial of Sarah Bad Heart Bull, David Hill, Robert High Eagle, Dlala Beane, and Kenneth Dahl for several alleged felonies during the Custer courthouse police riot of February 1973. Dahl was a white guy from Hot Springs, the only non-Indian charged in this event. Their attorneys were Ramon Roubideaux and three white men from California, John Pratt, Reber Boult, and David Allen. The prosecutor was Bill Janklow, who was running for state Attorney General. The judge was Joseph Bottum, seventy years old, a rock-ribbed, racist, reactionary Republican party hack. He had lost elections for the U.S. House of Representatives and for governor of South Dakota, but managed to get elected to a job nobody cared about—lieutenant governor. His party cronies helped get him elected to the Seventh Circuit bench in 1969, but he was up for reelection in 1974 and faced a stiff primary challenge.
The defense lawyers had introduced several motions before I arrived. They had asked Bottum to dismiss charges or change the venue because of South Dakota’s rampant racism and excessive pretrial publicity. They also asked him to suppress so-called evidence that had been obtained illegally, and to increase the number of peremptory challenges each side could use during jury selection. When Bottum denied those motions, they appealed to the state supreme court and demanded a delay in the trial until there were rulings on those appeals. Bottum responded by suspending for a day the rights of the white lawyers to practice in South Dakota—but he cited Roubideaux, the only Indian, for contempt and threw him in jail.
When the judge entered the courtroom the next day, Indian spectators responded to his racism by refusing to rise to show respect. Bottum blew his top, and had over seventy people dragged out of the courtroom. He then threatened to have anyone arrested who refused to stand when he came into the room. When I met with the defendants’ support group we all agreed we would remain seated and get arrested. We expected the cops to get rough, so we decided that only men would go. About twenty Lakota volunteered.
A Lutheran clerical conference was being held in town. When we asked them to send court observers, they responded with sixteen ministers, including four bishops. We also invited the League of Women Voters and alerted the media. When it was time for court to convene, spectators lined up to pass through a metal detector. Only fifteen Lakota people were allowed inside before the marshals closed the courtroom. I was turned away, along with everyone in line behind me. Standing around the third-floor corridor, I thought I had been spared jail. That was okay, for I was due back in Saint Paul for my own trial the next day. Then Minnehaha County Sheriff Les Hawkey came up and said, “Russell Means, the judge would like to see you in his chambers.”
“Why?” I replied.
“Your people won’t stand when he enters the courtroom, and he wants to see if you can help.”
“I don’t think I can get them to do that, but I’ll meet with him.” Bottum asked me to convince the Lakota that he meant business. I agreed to speak with them, and on my way out of chambers Bottum wished me good luck. In the courtroom, I told the Lakota what Bottum had said, but they didn’t change their minds, so I sat down with them. Moments later, the judge entered. The defendants, their lawyers, and most spectators rose, including the ministers and the League of Women Voters’ observers. We Indian spectators sat quietly.
Suddenly the hallway and chambers doors burst open and a phalanx of twenty-five policemen poured in, dressed for a riot, in helmets, shields, face guards, and batons. They attacked the first Indians they saw, Roubideaux and David Hill, who were standing at the defendants’ table. As Hill went down under a hail of blows to his head, two white lawyers pulled Roubideaux under a table and rolled on top of him protectively. A heartbeat later, a cop came at me with a raised club. Rather than get hit, I smashed his face mask and watched his nose twist and flatten against the plastic. Then I took that pig’s helmet off and took his club away. The other Lakota were doing much the same. We beat the cops back, they regrouped, then charged again. We repulsed them as before. Once again, they charged, and again we fought them off. Each time they fell back, we had snatched more helmets and more clubs.
The courtroom went wild, with women screaming and ministers scrambling to get out of the way. The cops knocked down three of our guys, including my brother Ted, and dragged them out. Chairs flew through windows. When our people outside saw the broken glass, they started a demonstration, smashing windows and shattering glass doors. In the courtroom, the cops must have realized they couldn’t beat us, so they backed off, lined up, and let everyone leave. David Hill’s eye was hanging out of his head, so we took him to a hospital. He lost some of his vision.
Early the next morning, Dennis and I went to the airport to catch a plane back to Minnesota. The cops pounced, arresting me for “riot to obstruct justice and injury to a public building” for allegedly kicking in a window as I went downstairs. As usual, they found cops to lie about it.
In a struggle, any news is good news, as Bill Kunstler has often said.
When a television news crew turned up at the jail for a live report, I did an interview condemning South Dakota racism. When Judge Nichol learned of my arrest, he was livid. He called the state’s attorney and ranted at him. They knew I was on trial in Saint Paul, he said, and that I had to report back—so they could have worked out any arrest with him. Instead, they held up our trial. Still fuming, Nichol ordered them to put me on the next plane to Minneapolis. I refused to change out of my Minnehaha County jail coveralls and wore them back to Saint Paul and into the courthouse. I wanted the world to see that I was a political prisoner. I got to remind the jurors of South Dakota’s racial bigotry by making a speech to Nichol explaining my tardiness.
We made the same point another way. When the trial continued, several witnesses testified about the wounding of FBI agent Curtis Fitzgerald. On about March 11, while chasing a panel truck near Wounded Knee, he got shot in the hand and was taken to an Indian Health Service hospital in Pine Ridge. A couple of doctors testified as to the extent of his wounds and the government introduced evidence of Fitzgerald’s treatment. Dennis noticed that the emergency-room admissions sheet had been annotated “VIP.” That also appeared on all of Fitzgerald’s other hospital records.
Dennis and I insisted on cross-examining the doctors. Judge Nichol warned that a person who represents himself has a fool for a client, and that even very experienced lawyers have difficulty cross-examining expert witnesses such as doctors. “As long as you say on the record that you understand that you could hurt yourself, I’ll allow it,” he said. We didn’t question the doctor about wounds or treatment. Dennis asked, “What does VIP mean?” and the doctor hemmed and hawed and finally said, “Very important person.”
“Have you ever put VIP on the records of any Indian person admitted to the hospital?”
“Not that I can remember.”
“Did that mean that this white FBI agent was to get special treatment?”
“Not at all.”
“Then why did you put VIP on his records, since it means ‘very important person’? Why distinguish him?”
We went on in that vein for half an hour, until the doctor was a limp rag and everyone in the jury box understood that Indians are treated a hell of a lot differently than white FBI agents in that hospital. By then, the jurors didn’t care about Fitzgerald’s wounds—they had become irrelevant.
We continued to jump up to do and say things that no lawyer would. We knew we could get away with giving speeches while pretending to cross-examine. The government always objected, and the judge always told the jury to disregard what they had heard—but you can’t unring a bell. After the umpteenth time, Nichol told us he knew we were doing it just to influence the jury. By that time, we had accomplished our purpose.
As the trial continued, Hurd and other assistant U.S. attorneys continued to withhold crucial evidence, including a set of photos that Hurd claimed was “missing” before Agnes Gildersleeve’s cross-examination. After she was excused and she left the state, Hurd suddenly “discovered” the photos in his briefcase. Nichol got so pissed off at those stunts that he took the FBI’s files away and had marshals guard them.
In late June, Judge Bottum concluded the trial of Sarah Bad Heart Bull, Kenneth Dahl, and Robert High Eagle in Sioux Falls. His jury instructions amounted to: “If you’re present at a riot, then you’re responsible for it.” The jury took fifteen hours to come back with guilty verdicts for all three.
A few days later, during another trial recess, I went to Valentine, Nebraska, to party. On a Saturday afternoon I headed up Highway 83 for Mission, South Dakota, with two or three carloads of AIMsters. We stopped outside town at Mission Golf Course, a country club. It was supposedly a private club, but the policy on nonmembers was to serve whites and turn away dark-skinned Indians. We were hungry, so we decided to find out if that was true.
We sat down and ordered soft drinks and cheeseburgers, but the manager came over to tell us to leave, or he would call the cops. We said, “Go ahead.” He called the Mission police, even though the property was outside town, on an Indian reservation, and only BIA police had jurisdiction. When the cops arrived—Tom Rhoads, Mission’s redheaded chief of police, and Ron Haukaas, a light-skinned breed—Rhoads immediately drew his gun, put it to my head, and said I was under arrest. I slapped his arm away and punched him out. Haukaas went for his gun, but my friend Kenny Kane laid him out. We chased the cops and the other whites out of the building, and some of our guys went to the basement and repossessed money in illegal slot machines. Outside, several AIM brothers trashed the police car. Harvey Kills In Water was kicking the red light off when he was accidentally shot in the head by a gun taken from the car. The guy who pulled the trigger, we later discovered, was an FBI informer. We rushed Harvey to a hospital.
Assured that he was out of danger, I went with Curtis Bald Eagle and Kenny Kane to party on the Rosebud at the Saint Francis home of Theresa Kills In Water and Bernadine Broken Leg, young women with small children. A BIA police supervisor lived directly across the street. That evening, he didn’t come home from work. We asked around and learned that the FBI had told the BIA to arrest me and that their cops had been given shoot-to-kill orders. We knew that often when cops want to get people without leaving evidence of illegal tactics, they just firebomb them. We had seen it on Pine Ridge many times. Only a few weeks earlier, the papers had been full of the Symbionese Liberation Army shoot-out in which several people burned to death after police and the FBI surrounded their Los Angeles house and set it ablaze. The Saint Francis home we were visiting was so-called transitional housing—a temporary, substandard structure. Small and flimsy, it afforded no shelter against gunfire. If such a house catches fire, it burns to the ground in less than twelve minutes.
I was tired of getting arrested. I was tired of racism, tired of the BIA punks, tired of the continuing genocide against my people. I decided to make a stand right there. Kenny and Curtis said, “We’re with you.” We didn’t want the cops to hurt Bernadine, Theresa, or their kids, so we sent them all away. We did not intend to die like the SLA people had. Friends brought ammo and grenades. We went outside to dig earthen mounds and fortifications, and set up a T-shaped ambush among the trees around the house and the road leading to it. We then mapped out an escape route and arranged to borrow a car from an AIM brother named Richard Young. He was a well-known auto mechanic and stock-car racer who had the fastest wheels in that part of the country—a far more powerful vehicle than any police cruiser or jeep. We were going to shoot it out with the BIA sellouts, then take off. If they wasted us instead, we were determined to take a few of them with us and make the rest remember they had been in a fight.
When we were ready, we had someone go to the police station to tell them where we were and that we were expecting them to come for us. As we had at Wounded Knee, we held a spiritual ceremony to say good-bye to this world. Just as our ancestors had on similar occasions, we sang, “It Is a Good Day To Die.” Then we crouched in the dark, moonless night under a brilliant canopy of stars, and waited.