34
Ordeals By Trials
Two days after Judge Nichol had dismissed the remaining Wounded Knee charges against Dennis and me in October 1974, the U.S. Attorney General awarded the Justice Department’s Medal of Commendation to prosecutor Richard Hurd and his co-counsel. It was a signal to all federal prosecutors that even those caught violating their oaths of office would be backed all the way to the top, as long as they kept bringing Indians into court or putting them in jail to await trial.
Two weeks later, the Oglala people sponsored a three-day victory party at Porcupine, and about one thousand Indians came from all over South Dakota to celebrate. That frightened Dick Wilson. With his usual sensitivity, he declared martial law on Pine Ridge, citing a mysterious, and fictional, 1972 tribal council resolution permitting him to take any action necessary to quell “an AIM uprising.” Backed by goons, he marched on the BIA jail and freed twenty prisoners, mostly other goons awaiting trial on alcohol-related offenses. He told the Rapid City Journal that AIM had been bringing guns into Pine Ridge for ten days, but the BIA police refused to do anything until we broke a law. Wilson also publicly accused BIA Superintendent Al Trimble, an Oglala, of vigilantism. By then, Wilson had finalized the illegal transfer of the Sheep Mountain Gunnery Range to the Department of the Interior, so I took Trimble’s public rebuke as a sign that the feds no longer needed to kiss Wilson’s butt.
After the party, we returned to Saint Paul, where Dennis and I paid a courtesy call on Therese Cherrier, the juror who had suffered a stroke. She was well enough to talk, and after insisting on having photos taken with us, she said she considered Dennis and me heroes. She told us she would never serve on another jury, for she thought the system was ridiculous. Two or three jurors on her panel were so stupid they couldn’t follow the facts of our case or apply logic to evaluating evidence, she said. All their decisions had been dictated by their emotions.
The secrets of the jury chamber were especially fascinating to me because of the charges I still faced. Those included yet another indictment that had come down during the Saint Paul trial. It stemmed from my brief visit to a Rapid City motel room the day I came out of Wounded Knee. A white guy from Arizona had offered us guns and explosives. Figuring him for a fed, I had walked out. Along with four others in AIM, I was falsely charged with conspiracy to transport firearms and explosives across state lines. A preliminary hearing was set for early October in Phoenix. A legal defense team headed by attorney Leonard Weinglass—another alumnus of the Chicago Seven—had opened an office there to prepare for trial.
Curtis Bald Eagle had totaled my Buick on a highway near Bismarck, North Dakota, so I borrowed a white Oldsmobile from a trusting German immigrant lady. With Curtis, I towed a U-Haul trailer to Porcupine with my belongings. I promised to return the car soon afterward. Instead, after dropping off my stuff, I headed for the fall wacipi at the University of South Dakota in Vermillion, in the southeastern corner of the state. There I ran into Peggy Phelps, a student at South Dakota State. She was one of a Sisseton family of thirteen children living in Rapid City. While she was in high school, I had found excuses to go visit her family just to be around her. Strong supporters of AIM, the family had participated in many demonstrations, including one at the Rosebud’s BIA jail, when I first really noticed how pretty, slender, and long-legged Peggy was. Later in the autumn of 1974, I bumped into her at what we skins called a “white dance” at the Antelope Fair on the Rosebud. I was with another girl, but when I started to dance with Peggy, I forgot all about the first one. After a few drinks, I was feeling quite good. As we were moving around the floor, people stopped dancing and formed a circle, clapping for us. At that wonderful moment, I fell in love with Peggy. After the dance, we went out to an old boarding-school dam and talked until she had to go back to her family. For a while we were almost inseparable, but then she started college. Peggy was preparing for a career in teaching, and planned to attend the National Indian Education Association conference in Phoenix. I was to be in Phoenix for trial, so we agreed to meet.
In Phoenix I learned that the feds knew the only thing linking us to gunrunning was the allegation of one white man. He was a racist fruitcake out to bust Indian balls, and his tales were wildly inconsistent. But instead of dropping charges, the U.S. Attorney’s office offered us a deal. If we would plead guilty to lesser offenses, we would get short sentences. When we said we looked forward to proving our innocence in court, he dropped all charges.
With that out of the way, Curtis and I went to the NIEA convention. It was quite a change from the first one I had attended, in 1970. In the years since then, AIM and others had built enough self-pride to turn Indian country upside down. The 1975 convention drew nearly five thousand people, damn near every one of them proud of their heritage. People brought drums and took over hotel parking lots to dance and sing. The convention became one enormous party. I looked up Peggy and we partied, too.
I stuck around Phoenix to earn a little money. Through Chicano and Indian friends, I hustled a few hundred bucks from speaking engagements at Arizona State, my alma mater, and at Scottsdale Community College. In a few weeks, the trials of several other Wounded Knee defendants would begin in Lincoln, Nebraska. I decided to go there via Texas and Oklahoma, stopping to visit Ramon Roubideaux’s oldest daughter in Austin and an Oklahoma AIM friend named Mary Ann Anquoe. Curtis had other plans, so he took off. I paired up with an AIM brother, Dick LaGarde. He had somebody’s Gulf Oil credit card—one of many that AIMsters had acquired somehow. In those days before computers were everywhere, it took weeks for notice of stolen cards to circulate nationally, so we decided to use that one.
After two weeks of partying, we arrived in Lincoln in December 1974 for the trials of most of the Wounded Knee “non-leadership” cases. Hundreds of people from around the country had been charged with an assortment of felonies that allegedly happened during the siege. About two hundred trials were scheduled. Most of the charges were preposterous. For example, one supply caravan had been stopped at the Nevada border and everyone in it had been busted for interstate transportation of weapons and other nonsensical charges. Sammy Davis Jr. put up the money to get them out of jail. Other defendants had been arrested at the Canadian or Mexican borders or at various state lines, mostly for the “crime” of heading for Wounded Knee to support our cause.
I bunked with the WKLD/OC support staff in a rented house, but Dick got greedy and used his hot Gulf card to rent a Holiday Inn suite. He threw a party, and many AIMsters went over to join him in a good time. Those festivities were cut short when he finally got busted for using the stolen card. Eventually, it cost him six months in jail.
I was in Lincoln on AIM business, so instead partying I sobered up and got to work. One of the more interesting people I met there was Jim Thorpe’s granddaughter, Dagmar, a WKLD/OC volunteer. Among those on trial were my sister Madonna and Lorelei De Cora, who was about to marry my brother Ted.
The lead lawyer for the defendants was Al Krieger, who had made his reputation in New York defending Mafiosi. The federal attorneys were talented and energetic enough, but they had no real evidence to work with. Judges dismissed case after case, including those of Clyde Bellecourt, Stan Holder, Madonna, and Lorelei, when they realized the police could produce no evidence. Of the few people who went to trial, none was convicted of any charge made during the Wounded Knee siege. The best the feds could do was get one “guilty” verdict on a Topeka woman. She had stored in her garage a typewriter that had been liberated from the BIA’s Washington headquarters when we took it over in November 1972. Crow Dog and Carter Camp were later convicted of being responsible as leaders of the occupation and for “interfering” with postal inspectors who, posing as hippies, had sneaked into Wounded Knee. A white Albuquerque man named Allen Cooper—known in the Knee as “Honky Killer”—pleaded no contest and got ten years for assaulting a federal officer with a firearm. Those charges were brought later, after all the original Wounded Knee felony counts had been dismissed or the defendants acquitted.
In late December I received some good news. A new district attorney had been elected in Scotts Bluff County, Nebraska. After reviewing the evidence and charges against me—resisting arrest, assaulting police officers, illegal possession of a firearm, etc.—he realized they were bogus. In the interest of justice, he decided to dismiss them all. Charges against my brother Ted were dropped as well.
A few days later, on New Year’s Eve, the Menominee Warriors Society took over an abandoned Jesuit novitiate in northern Wisconsin. More than a hundred years earlier, Jesuits had taken land from the Indians to build an abbey where they trained new priests. In 1974, they had closed it, but instead of returning the land to the Indians, they planned to sell it to whites. The Menominee armed themselves and took over the property. In response, the governor of Wisconsin called out the National Guard to surround the grounds. An armed standoff resulted, with a lot of tension in the air—shooting could have started with the slightest provocation. AIM came through one of those awful Wisconsin blizzards to offer support. Dennis, with his flunky, Doug Durham, was coordinating things, including dealing with the press. Durham had a brand-new van. I told him, “While we’re here, I’m going to use your van.” “Yes, sir,” he said, ever the wimp. I used the vehicle to haul supplies during the standoff. Then at a leadership meeting, Vernon Bellecourt, of all people, said he had learned that Durham was an FBI informant, and planned to expose him two days later.
Since Dennis was the chief negotiator between Wisconsin authorities and the Menominee people and Marlon Brando was scheduled to come in and take the media spotlight, I saw no point in sticking around. I wrote a memo to Durham, with copies to Dennis and the rest of the leadership, in regard to the van. I said that because several AIM people from South Dakota were there, I was taking them home in it. Any time Durham wanted to retrieve his wheels he could come to Pine Ridge and get it, I added.
On February 26, 1975, a week or two after I got home, AIM brother Dicky Marshall had to appear in tribal court in Pine Ridge Village—goon headquarters. Those courts were run by judges appointed by Dick Wilson, and there were no jury trials. Arming ourselves, we took two cars and Durham’s van and drove to the Pine Ridge courthouse. Tom Poor Bear was driving the van, Dicky and several other guys were in the back, and I was in the right front passenger seat. Our presence in Pine Ridge Village was radioed to the goons and to the BIA cops. Duane Brewer, a BIA police lieutenant, and Delmar Eastman, special investigator for the BIA, met us at the courthouse. Brewer reached through the open window and, without a word, punched me. As I started to get out of the van, Eastman and other cops wrapped Brewer in a bear hug.
I was pissed, but the others in our van could see it was a setup to lure us into doing something the cops could shoot us for. The others pulled me back into the seat and told Tom to drive. I calmed down as we took off. The tribal planning center at the airport, about a mile and a half east of Pine Ridge, was a goon hangout. As we went toward it, we saw goons all around the airport and a private plane sitting alone next to the runway. Suddenly a red car pulled ahead of us to block the highway. The van’s front passenger seat could swivel 360 degrees, so I turned around to face the rear, put on my seat belt, and told Tom to floor it—“Let’s ram that sucker!” I said. When they saw us speed up, the goons moved the red car. As we went by, we pulled back the sliding door on the passenger side and poured rifle fire at them. There were so many guys shooting that it sounded like a bunch of machine guns. Goons jumped in their cars to follow us, so down the road we pulled to the side and stopped. Everybody jumped out. When our pursuers appeared, we opened up on them again. They screeched to a halt, backed up, turned around, and hightailed it. That message got through. No more goons were going to chase us. We took our time heading back to Porcupine.
Passing through Wounded Knee, we had to stop to fix a flat. One of our tires had been nicked by a bullet. While we were changing it, BIA cops and FBI agents drove up to question us about the firefight. Just then a convertible stopped. Out came WKLD/OC lawyers Roger Finzell and William Rossmore, their assistants Eda Gordon, Kathi James, and Martha Copleman, and Bernard Escamilla, a Chicano who had been a defender during the Wounded Knee siege. He was due to be tried in Council Bluffs, Iowa, on Wounded Knee charges, and the attorneys were interviewing witnesses in his case. Finzell advised us not to answer any of the FBI’s questions. The feds said they were investigating the shooting at the airport. We said, “Fine, charge us or leave us alone.” A G-man came up to me and said, “We’ve got a report that your van is a stolen vehicle.” He followed me back to the van, where I pulled out a copy of my memo to Durham. As I handed it to him, I winked and said, “Doug’s a longtime member of the American Indian Movement. He’s having some difficulties now, but he knows that once he’s cleared of our charges he can come and get his van any time.”
That memo seemed to satisfy the FBI agent. When we finished changing our tire, we told the feds we were going to the ranch of my relative, Ted Pourier. We wanted anybody following us after the shoot-out to come there, so we laid an ambush for them—but they never came.
That was because they were busy attacking Roger Finzell and the others in his car. Rossmore, a Connecticut attorney, had flown his own plane into Pine Ridge, the one we had seen parked next to the runway. When Roger drove him back to the airport, they found the plane riddled with bullets and buckshot. Fifteen carloads of goons with rifles and shotguns drove up, surrounded the convertible, broke the windshield, slashed the canvas top, and dragged everybody out. One grabbed Roger’s ponytail, and when Dick Wilson said, “Stomp him!” they beat him without mercy. As they were about to cut his throat, Eda Gordon, all of five feet tall and ninety-five pounds, threw herself on top of Roger. Her hand took the blade intended for him. Both lawyers, Escamilla, and the women were hospitalized. Roger signed a criminal complaint naming Wilson, and eventually he and the goons were tried in Rapid City before an all-white jury. For what must have been the only time in the history of South Dakota, Indians were found “not guilty” of an attack on whites.
Those kinds of incidents didn’t deter me from living at Pine Ridge. It is my home, and no hang-around-the-fort like Dick Wilson could make me leave. With my brother Dace for a roommate, I lived near Raymond Yellow Thunder’s grave in Porcupine. One Saturday night in March, a bunch of AIM brothers came over to party. They ran out of booze and decided to drive to Scenic, a tiny place just north of the reservation, at the edge of Badlands National Park. I wanted to go to bed, so I turned a deaf ear to their pleas to accompany them. They went outside and got in their cars, and then sent my cousin Dusty Lebeau back in to talk me into coming along. Reluctantly, I agreed.
Scenic, an arid, dusty crossroads, consists of perhaps two dozen buildings—a few houses; several ramshackle sheds, barns, and chicken coops; a church; a secondhand store of corrugated steel that looks like a cross between a Quonset hut and half a giant pipe; and the Longhorn Saloon with its Old West-style facade and a weathered wooden porch. With his daughter Twila, Hailey Merrill ran the place then and still does. He must be close to ninety now, a big, crusty white guy with a long gray beard and the look of a mountain man from the last century. In her younger days, Twila was quite beautiful, and she is tougher than most men.
We were going to buy some booze and take it back to my place. First I had to use the rest room, a tiny space with a toilet and a urinal, barely big enough to hold two people at the same time. Dicky Marshall, an AIM brother, used the toilet while I was at a urinal next to the door. As I zipped up, a short Lakota I didn’t know walked in. He looked up and playfully slapped my cheek as though he had just recognized me. It was crowded, so I said nothing, just scooted out the door. Behind me, I heard Dicky say, “What the hell did you do that for?” As I headed toward the bar, I heard a sudden pop from the bathroom. It wasn’t much more than the noise a cap gun makes, but it was unmistakably a shot from a .22 pistol.
That wasn’t the first time there had been gunplay in the saloon, so people scattered. AIM guys rushed to the bathroom, came back with Dicky, and we all piled into two cars. I was one of eight people jammed into the lead vehicle, a white Olds or Pontiac. Except for me, all the guys in both cars were packing a rifle, shotgun, or revolver. We were off the reservation, in the jurisdiction of the Pennington County sheriff, so we decided the best thing to do was head for Rapid City. As we drove, I asked Dicky why he had shot the guy. He said, “I don’t know, the gun just went off.” I thought, oh, man—why didn’t I stay home and sleep?
Soon we passed a whole line of sheriff’s cars with flashing red lights, heading toward Scenic. They were followed by two or three more. After passing us, the cars turned around and chased us. But our car had carburetor trouble and the engine coughed whenever Dave Clifford, the driver, stepped on the gas. We drove that way for miles and miles through the darkness, trailed by a growing string of squad cars with lights and sirens going at speeds that ranged between sixty-five and seventy miles per hour. On the outskirts of Rapid City, Dave turned off the highway into a mobile home complex. It wasn’t one of his better moves. We took down some clotheslines before returning to the road, but the cops were waiting. Dave steered through a deep ditch, but crossing some railroad tracks we got high-centered, our wheels off the ground so we could go neither forward nor back.
I was in the back on the passenger side when a deputy with a rifle opened the door. He recognized me and poked the barrel hard at my right eye. I started to bleed profusely, and he swung his gun butt at the side of my head. He missed and smashed the window. I stood there with a handkerchief to my face as cops pulled weapons from our cars. The sheriff came up to me and asked, “Please, can you calm these guys down before we take them to jail, so they’ll all go peacefully?”
I said, “Wait a minute, not everyone’s involved. Some just happened to catch a ride with us.”
“That whole carload of guys is involved—they’ve all got weapons.” “They have guns, but they had nothing to do with the shooting.” “Well, we’re not going to charge them with anything other than having weapons, but we’ve got to take you all in.”
I went over and explained the deal. Everyone agreed to come along. Dicky and I were arrested for attempted murder. The Lakota who had been in the men’s room at the Longhorn was Martin Montileaux. The bullet had struck him in the neck, hit a bone or something, and gone up into his head. Dave was charged with felony firearms possession and reckless driving.
I was at the jail for more than three-and-a-half hours before Roger Finzell, our attorney, made deputies take me to a hospital. It took twelve stitches to close my wound. I still have a nasty scar just below the eye socket. We were scheduled for arraignment in the morning, so that night, Dave, Dicky, and I talked in our cell. Dicky said he would admit to the shooting and tell exactly what had happened: While showing his gun to Montileaux in an effort to intimidate him, it accidentally went off. I would plead not guilty.
But when we got to the court, we were immediately met by attorneys from the public defender’s office. When we shared our intentions, they said, “Don’t plead guilty.” They explained that there were extenuating circumstances: Montileaux had struck me without provocation, and that might be enough for self-defense. We all pleaded not guilty. My bond was set at thirty thousand dollars, Dicky’s at twenty thousand, and Dave’s at much less.
When Montileaux died a few days later, we were charged with murder, which meant possible sentences of life without parole. Because of all that had happened before, prosecutors—from Bill Janklow, South Dakota’s new attorney general, down to the most junior assistant state’s attorney—were almost desperate to nail me. They poked around trying to find somebody who could say I had been in the bathroom with the gun in my hand when Montileaux was shot. The sheriff’s deputies and state’s attorneys offered Dicky a plea bargain to get him to roll over and testify against me. Dicky was AIM, Lakota, and Oglala, a fine man then only twenty-four years old, who wouldn’t lie to save himself if it meant hurting me.
Because I was still facing several other court proceedings, our lawyers forced prosecutors in the Montileaux case to sever my case from Dicky’s and try us separately. We always tried to do that. Trials are expensive. If governments, want to come after us, we’re going to make them pay. I had been charged with serious crimes all over the Great Plains, but had always showed up for court appearances, so I had acquired a reputation as a good risk for bail. Marlon Brando offered to post my bond on the murder charge. When my lawyers told me that, I said, “What about the other guys?” They said they were on their own. I said, “No deal. All of us get out or nobody gets out.” They went back to Brando, who stalled, saying neither yes nor no. My brothers Ted and Bill and my friend John Thomas went to Brando’s Mulholland Drive mansion in the Hollywood Hills and camped there until he promised to bail us all out. Years later, I learned that Brando had called Hugh Hefner, publisher of Playboy magazine, and asked him to have the Playboy Foundation, which works to further human and civil rights, put up bond for Dicky and Dave. That came out when Brando agreed to cooperate for a Playboy interview, and it increased my respect for Hefner.
I still faced charges for the Custer courthouse police riot, but I caught a break. When Bill Janklow became South Dakota’s governor, Mark Meirhenry was elected Attorney General. He had served in the Legal Aid office with Janklow in the 1960s, when we were all on the Rosebud. I believe that Mark, who knew me as a human being and not merely as the focus of racist hysteria, was behind what happened next. The state offered a plea bargain on the eight felony counts from Custer. I had the feeling, and my lawyers agreed, that if I had gone to trial, I almost certainly would have drawn a conviction on at least one count. On the other hand, the state would have had to face tremendous costs to put on that trial because I was backed by WKLD/OC, and the prosecutors knew we would have a strong defense. Instead, they dropped the felonies and I pleaded guilty to simple assault—a misdemeanor.
My sentencing was in Kennebec, South Dakota, a white town just south of the Lower Brule Indian Reservation, David Hill, who had been with me in the Custer courthouse police riot, was also to be sentenced that day. The man on the bench, Judge John B. Jones, was out of the same mold as Joe Bottum—a hard-bitten old hanging judge. He had been in Kennebec for ages and he loved “his” Indians, but there was no way I was going to be one of them. David was called first. Because of the vicious abuse he had suffered—he had lost much of the vision in one eye after having been clubbed in the Sioux Falls courthouse police riot—trying him again would have been a public-relations nightmare for the state. His lawyers brokered a guilty plea for simple assault, in exchange for unsupervised probation.
That was the only time I ever pleaded guilty, and I had the hardest time getting that word out of my mouth. When the judge said, “How do you plead?” my reply literally stuck in my throat. I had to force it out, and even then I stuttered, “G-g-g-guilty.” I had done some reading and expected to get thirty days. That was the maximum penalty when I had been arrested. When the judge said, “I wish I could give you more time, but all the law allows is ninety days,” it shocked me. I looked over at my lawyer, but he said nothing. “Wait a minute,” I said. “It was only thirty days when I committed the crime. Did it go up?”
“Well, the legislature recently saw fit to pass a new law,” said Jones.
I demanded to see the statute, so the clerk brought the South Dakota criminal-code book to the bench. After reading for a few moments, the judge apologized, corrected himself, and gave me thirty days.
Then David Hill stood up. He said, “Your honor, could I do fifteen days and Mr. Means do fifteen days?” It was a nice gesture; I loved Dave for that. The judge chuckled and said, “I know you come from Oklahoma and maybe they do that down there, but we don’t. Mr. Means will have to serve his own time.” I still had upcoming trials, for the Sioux Falls riot and for the Montileaux murder, so the judge suspended imposition of sentence until my legal affairs were in order.