35
The Sioux Falls Massacre
In the spring of 1975, along with my brother Dace, Tom Poor Bear, and AL White Lightning, I attended a community meeting of elders in McLaughlin, just south of the North Dakota line on the Standing Rock Reservation. On the way home, we stopped at a bar to shoot pool, and got into a brawl with an off-duty cop. When he came at me with a beer bottle, I hit him with my cue stick, and down he went.
After we left, he pressed charges against me. I was arrested and arraigned for assault with a deadly weapon, assault to do great bodily harm, assault with intent to maim, and unlawful flight to avoid prosecution—all felonies. After a hearing in Aberdeen, South Dakota, at which I served as my own lawyer, Judge Alfred Nichol, who had tried the Wounded Knee case in Saint Paul, dismissed all charges.
On June 7, with three carloads of AIM brothers, I headed to Fort Yates, North Dakota, where the BIA agency on the Standing Rock was located. At about noon, we stopped in Fort Rice, North Dakota, a little white town, and a couple of guys went into a bar to buy beer. They got into a scuffle with some rednecks, so we rushed in to help. We kicked a few butts, bought our beer, and continued on our way. Minutes later, after our little caravan had crossed the bridge marking the reservation boundary, we saw a BIA police car coming toward us. Whenever I see an Indian cop on that reservation, I’m reminded that it was the place where Sitting Bull was murdered. In December 1890, forty-three Indian policemen, acting on orders from General Nelson Miles and BIA agent James McLaughlin—the town in South Dakota is named after him—surrounded the cabin where Sitting Bull slept, and shot him to death.
The cop behind the wheel of this squad car, a hang-around-the-fort named Pat Kelly, was from Cannon Ball, North Dakota, a community settled by survivors of several decimated Sioux bands after the Standing Rock Lakota gave them refuge and part of their reservation. As he approached our caravan, Kelly turned on his flashing lights and stopped. Tom Poor Bear was driving our car, and he braked to a halt, got out, and crossed the highway to see what was going on. Kelly was a husky six-footer in uniform. With him was a young guy in civilian clothes. We didn’t know it then, but he was Kelly’s son. Suddenly Kelly grabbed Tom by the hair and started to swing him around. AIMsters began to pile out of cars. By the time I got across the highway, Tom was on the pavement. I said to Kelly, “What the fuck do you think you’re doing?” and turned to help Tom.
Out of the corner of my eye, I saw the younger Kelly kneeling behind the passenger door and pointing a rifle at me through the V-shaped gap formed by the door and the side panel. Just as I bent down to help Tom up, I heard a gunshot. Something incredibly hot stung my back just above my left kidney, and I went down. I thought it was the kid with the rifle, but it was his father who had shot me, with a .357. I felt no pain. As Tom and I helped each other up, the Kellys ordered everyone else to remain on the other side of the road.
Kelly got on his radio, crowing, “I got Russell Means! I shot Russell Means! I got him!”—as if I were the great prize of an Indian bounty hunt. Within minutes, several BIA cars came racing down the road from Fort Yates. Tom and I were cuffed with our arms behind our backs and thrown into the backseat of Kelly’s car. Soon, my left hand and arm were soaked with blood. I still felt no pain, but Tom leaned over to tell me I was seriously wounded.
Instead of being booked at the jail or taken to a hospital, we were all thrown into a big empty cell—the drunk tank. Al White Lightning tore up his T-shirt and Tom’s and stuffed them against my wound. My AIM brothers kept shouting, “He’s bleeding to death! He needs help!” The jailers ignored them. I lay on a bunk, silent. After a while, my friends yelled, “If you won’t take him to the hospital, at least get us a medicine man.” More than two hours went by. I became progressively weaker from loss of blood and was starting to gray out when I was finally taken to a hospital. I was hooked to an IV and cleaned up, and then the FBI showed up to question me. I hadn’t been booked at the jail, and I figured it was because I was purely a victim.
I’ve never been a snitch, so I said, “I’m not going to press charges against that young guy. Just forget it.”
The bullet had struck exactly where, three years earlier, Alfonso Good Shield had sucked something dark from my body, spit it on the ground, and told me that was where I would be shot, but that I would be all right. His medicine had been very strong indeed. The bullet, which had enough force to shatter an engine block, had entered my body, made a U-turn, and exited without touching any internal organ. The Standing Rock clinic couldn’t handle gunshot wounds, so I was taken to a Bismarck hospital and given general anesthesia before surgery. The doctors decided against sewing the huge incision shut because it would invite infection. To this day, I have the four-inch scar from a large hole in my lower back.
While I was in surgery, the BIA issued a news release from Washington, saying that I had been shot in the “abdomen.” When I awoke the next morning, a U.S. marshal came into my room and put me under arrest. The charge was interference with a federal officer engaged in official duties. To cover up his shooting me in the back without provocation, Kelly had reported that I had tried to help a “suspect”—Tom—“escape.” The rap carried a maximum sentence of ten years. Guards were posted outside my room. A few days later, Bill Kunstler flew in from New York to represent me at an arraignment in my hospital room. A judge came with a court reporter and set my bond at thirty thousand dollars.
When I was strong enough, I went back to the Bismarck house that Dace, Tom, and I shared and, a few days later, drove down to Mission with them. Betty and our kids were staying with Dace’s former wife, Karen, and I was going to take Michele and Scott back to Bismarck to spend the summer with me. When I was cruising around the Rosebud just after dark one night with Dace and Tom, a car with three off-duty cops in it pulled alongside us. One of them was John Fuller, the Mission policeman who had almost beaten Curtis Bald Eagle and me to death in Valentine, Nebraska, the previous summer. Suddenly a beer bottle came flying out of the policemen’s car and shattered on Dace’s window. One of them opened fire, and a bullet grazed my forehead. I started to bleed like a stuck pig. Dace, behind the wheel, reached under the seat for his automatic. Left-handed, he let off several rounds. He left a few holes in sheet metal, but none in flesh.
As luck would have it, we were headed right for the Rosebud hospital. Within a few minutes, I was in the emergency room getting twelve more stitches and a big patch over this latest indignity. The next day, while I lay on a living-room sofa at Karen’s house, the FBI questioned me about the shooting. I gave them the names of the cops and described the incident. That was where it ended—no investigation or arrests.
A few days after the shooting, we headed back to Bismarck with Michele and Scott. About a week later, when California schools let out, Sherry and Hank came from Santa Ana, California, with their half sister, Veronica. She is Scott’s age; her late biological father was Loren Renville, who had been married to Twila. He was a descendant of the great Santee patriot chief, Gabriel Renville. Twila’s ancestor was Chief Gall, the master strategist responsible for Custer’s last surprise, so Veronica has quite a pedigree. Later that summer, during the sun dance at Green Grass, we held a making-of-relatives ceremony and Veronica became my daughter. I explained to everyone that I was adopting her because after she came to live with me, I had grown to love her. I still do, as much as I love any of my other children.
Chief Gall
I had much to learn about parenthood, however. Since Dace, Tom, and I were more interested in drinking than eating, we sometimes neglected to buy food. My kids were so often hungry that they went shoplifting in grocery stores. When I learned about that many years later, I was deeply ashamed by my thoughtlessness. I also didn’t understand then how harmful it was to let my children see me as a drinking father and in casual relationships with a series of women. Added to all the years I was an absentee father, I am responsible for enormous damage to my children. I often beat myself up today with guilt over such behavior. Not only was I a very poor example to my kids, I was such a dummy that I never realized it was happening.
In 1975, however, it was wonderful getting to know my kids after being so long without them. All I asked of them was to tell me the truth. I would do anything for fifteen-year-old Sherry, especially, because I knew she was always straight with me. In contrast, Hank, then a skinny little thirteen-year-old with a wide-eyed air of innocence, had learned to use his appearance to his own detriment, for he often lied. Michele, then nine, went through a particularly tough adjustment. She had been shocked to discover the existence of older siblings, and had to learn to think of herself in a new way. She was no longer my oldest child. As we worked that out, we became close again.
All my kids needed love, but Scott, at seven, needed it most of all. That was one of the most important periods of his life, a time when we should have established a close, loving bond. I had much love inside me, but I didn’t know how to be a loving, communicative father. Even when I was almost overcome with the desire to pick up my children, to kiss them and hug them, I didn’t. Instead, I was always macho, behaving toward my kids as my own father had treated me. That, too, never occurred to me then.
Since I needed money to support my children, I thought of my Shawnee friends in Oklahoma. They owned land and grew peji—literally, “green things”—a general term for grass. We decided to drive down there and get a few pounds of marijuana, bring it back, and start dealing—only to white people, of course. Then we would have money enough to travel around the Dakotas during the summer dancing season. We had all had enough of AIM for a while—we wanted to enter the American economy. Peji was a good way to do it. To this day, recreational drugs are among the few commodities still subject to the laws of free-market economics.
Tom and Dace brought their girlfriends and I took my kids. Ten of us piled into Dace’s green Pontiac. There was a hole in the muffler and we had no spare tire and no air conditioning, but the car ran fine. In Oklahoma, we stayed with our Shawnee friends for several days. Sherry enjoyed the experience so much that she asked to stay longer. Our friends were planning to come up north soon, so they promised to bring her back. They grew acres of weed and were glad to give us a couple of pounds. When we got back to Bismarck to start our summer of dealing, we found the stuff was as good as anything from Hawaii or Colombia, if not better. Dace came up with the idea of mixing it with dried parsley, four parts herb to one part weed. Consumers never knew it was cut. They would smoke one joint and stay high all day. I didn’t so much as touch weed or even a plastic bag that held it. My only link to it was my Shawnee connection and the fact that we lived communally and pooled our money and expenses. I was so out of touch with parenting responsibilities, however, that it never occurred to me that I was sending the wrong message to my kids by involving them, even indirectly, with drugs.
I spent that summer of 1975 partying and working to prepare for my trials. Since May 1973, most of my time had been consumed going to court or getting ready for it. My next case was for getting shot in the back. That proceeding was held in Bismarck, and Richard Baer and Irvin Nodland defended me. Sidney Harring, a lawyer from Buffalo, New York, surveyed potential jurors and found that 68 percent of them felt that “Indians lack ambition,” 47 percent believed Indians “carry a chip on their shoulders,” and 57.5 percent said “radicals and militants should be sent to prison for the good of society.” When it came to me personally, the survey showed that almost 44 percent felt they couldn’t give me a fair trial, and almost that many claimed that I should be forced to prove myself innocent! I waived my right to a jury trial and let the judge make the decision.
We called about a dozen witnesses, all of them riders in the AIM caravan on the day I was shot. All agreed on the beginning of the incident. Tom went across the highway, Pat Kelly grabbed his hair and threw him around, I went to help him up, and I got shot. Oddly, however, from that point on, everyone remembered something different. Before the trial, when Richard finished taking witness statements, he told me that not one story was like another. I started to get worried. I thought, what’s going on here? Then Richard explained it to me. The beauty of my witnesses was the consistency of their inconsistency. “The judge, who has a lot of experience in this sort of thing, will know that the nature of eyewitness testimony is that each person sees things in his own way,” Richard said. “Precisely because we don’t have a dozen stories that are exactly alike, he’ll know they’re telling the truth.”
Pat Kelly and his son testified that we had stopped their car and assaulted them, and they had defended themselves. The prosecution rested, and the judge heard everyone say that Kelly had tried to assassinate me. The point was made that Kelly’s son was unlawfully present as a passenger in that car, which undermined the already dubious legality of my arrest. Although Van Sickle was yet another reactionary Republican law-and-order type, he barely bothered to deliberate before pronouncing me not guilty.
At about the time I was exonerated, Dennis Banks was convicted of riot and assault for the Custer courthouse police riot. Earlier in his life, he had served two years in a Minnesota prison, and he thought going back into confinement was pointless. More important, Attorney General Bill Janklow had been quoted as saying every AIM leader should be shot in the head, a comment that was reported over the wire services. Before being sentenced for Custer, Dennis went underground, exiling himself from injustice and becoming a symbol of our people’s need for freedom.
After my trial victory in Bismarck, I sent Hank and Sherry back to California and moved to Rapid City with Michele and Scott to prepare for my police-riot trial in Sioux Falls. WKLD/OC’s office in Rapid City did some preliminary work in Sioux Falls, but no one there really wanted to get involved in the case. Instead, they recruited a couple of young San Francisco Bay Area lawyers, Alex Reisman and Marvin Rouse, to help Sidney Strange, my court-appointed attorney from Sioux Falls. The California lawyers weren’t licensed in South Dakota and could argue in court only behind the legal fig leaf of being under Sid’s supervision. In all WKLD/OC’s previous cases, the out-of-state guys had been the lead attorneys in all but name, but this time, Sid insisted on running things himself. He had a successful, well-regarded criminal-law practice, so we went along with him.
The summer of 1975 was the time when anti-Indian hysteria in the Dakotas climaxed. On June 26 there was a shoot-out near the home of the Jumping Bull family near Oglala, west of Pine Ridge Village. One Indian and two FBI agents were killed. An enormous manhunt followed, as hundreds of feds swarmed over the reservation. Soon after that, bombs exploded at six or seven BIA offices across the nation, including those on Pine Ridge and in Alameda, California. No one was injured. Of course, the media and police blamed AIM. Then the FBI reportedly accused Charles Abourezk, son of the U.S. senator, of running guns for two thousand AIM “Dog Soldiers”—a Cheyenne warrior society—at training camps in Oklahoma. The FBI leaked the “suspicions” to the media, which convicted Charlie in print because he wore his blond hair in braids and was married to an Indian woman.
Charlie was a dedicated AIMster in those days, but we found the FBI’s absurd accusations quite amusing. AIM couldn’t afford to buy even one gun, let alone ship thousands or get two thousand “warriors” together. We thanked the FBI for its good PR. By dining on the same propaganda they relentlessly dished out, the feds had built AIM into a vast subversive organization with outlaws and renegades lurking behind every tree. The white man’s fear of Indians had increased dramatically as a result. South Dakotans were just as worried about Indians as their great-grandfathers had been. The ghost of Wounded Knee hovered closely over the Dakotas. When prosecutors failed to obtain convictions against the Wounded Knee defendants, indignant editorials proliferated again in newspapers statewide. Their basic message was the same: If so many people had been arrested, something must be dreadfully wrong with a system that couldn’t convict them. Surely, said several editorials, “someone must be guilty of something.”
Before voir dire began in October 1975 for my own trial, Vernon Bellecourt, Bobby Joe Tiger, and several other people appeared for trial for their roles in the same riot. After interviewing 108 possible jurors, Judge Richard Braithwaite ruled that it was impossible to convene a fair jury, and dismissed all charges. Newspaper editorials around the state trumpeted that Braithwaite had “subverted justice,” increasing the pressure on him to obtain a conviction against me.
In all my previous trials, the lead attorneys had been from another state or, like Larry Leventhal and Ken Tilsen, had been so committed to AIM that they didn’t care if they permanently pissed off a judge. Sid Strange was a good lawyer, but he was local. He would bring more cases before that judge. If Strange expected to win any of them, he would have been a fool to do the sorts of things Kunstler, Lane, and Tilsen had done in Saint Paul. Instead of sitting quietly and trying to read the judge’s mind or hoping he had gotten up on the right side of the bed that morning, they had attacked the court system. Sid counseled me to work with the judge, and he never took the offensive. I have only myself to blame for not insisting that, like Bill Kunstler and Mark Lane, he be willing to risk contempt, or even disbarment if necessary, to force the court to administer justice.
My lawyers, in support of a change-of-venue motion, introduced National Jury Project research proving again that in South Dakota, AIM leaders or even ordinary members couldn’t get a fair trial—any more than Indian people in general could. Nevertheless, our motion was denied. After interviewing more than two hundred prospective jurors, none of whom was Indian, and seating only eight or ten, we ran out of peremptory challenges. We knew some people already in the jury box believed strongly that I deserved to go to prison simply because I was Russell Means of the American Indian Movement. We knew we could never change their minds, and we couldn’t keep any such others off the panel. Sid moved to dismiss charges on the grounds that we couldn’t find a fair jury, but Braithwaite ruled against us.
I was astonished. Among the evidence against me was a videotape by local television stations that showed Vernon outside the building, breaking glass on the front of the courthouse. While he did that, I was in a third-floor courtroom. The very judge who had dismissed charges against Vernon—the self-proclaimed AIM leader and among those most hated by law enforcement from coast to coast—wouldn’t dismiss mine. My appearance on videotape was limited to helping the injured David Hill.
It was idiocy to go to trial with those rednecks sitting in judgment. Although jury verdicts are rarely overturned on appeal, judges’ decisions and law rulings are frequently reversed by appellate courts. After talking the situation over with Strange and my other lawyers, I felt I would be convicted but had a good chance to win on appeal. Accepting the lesser of two evils, I waived my right to a jury and let Judge Braithwaite, son of a founder of the Sioux Falls Ku Klux Klan chapter, decide my guilt or innocence.
Meanwhile, however, after the two agents were killed in a now famous shoot-out on the Jumping Bulls’ land near Oglala, the FBI set out to teach the Lakota a lesson that we were a defeated nation and the government could do as it pleased with us. Dozens of Indians were rounded up during reservation sweeps and charged with a variety of offenses. The sheer volume of the cases overwhelmed South Dakota’s two federal judges. Since the Constitution guarantees the right to a speedy trial, federal judges William Mehrtens from Miami, Robert J. Kelleher from Los Angeles, and Robert Merhige from Richmond, Virginia, were flown in for periods ranging from two weeks to a month to try everyone. Along with two other out-of-state judges, they presided over the trials of eighty-eight Indians in Pierre and sixty-six in Rapid City.
Those were often grotesque parodies of justice, among the most authoritarian, dictatorial kangaroo courts ever convened. In three months, all those people, most charged with multiple felonies, were run through courtrooms. Defendants and witnesses for several cases stood around in hallways, conversing among themselves without supervision. Anybody could invent any story and get someone to swear it was true. Some trials lasted minutes, and none more than a few days. That meant picking juries, reading charges, hearing witness testimony, all objections overruled, no conferences in chambers, no attempt to learn the truth—boom, boom, boom. Guilty, guilty, guilty. Prison, prison, prison. It was a travesty, the sort of thing few Americans would believe unless they had seen it with their own eyes.
Kenny Kane and I were among those tried in Pierre—for the Mission Golf Club fight—during a one-day Thanksgiving-week recess in the Sioux Falls proceedings. Appearing before Judge Merhige, I represented myself. Kenny had counsel. Like the other trials on that assembly line of injustice, ours was very quick. At least our judge was a fair man, although he indulged in little contemplation. I argued that the Mission cops had no jurisdiction on the reservation and therefore were not acting under color of authority. Merhige said, “I consider this nothing more than a barroom brawl.” He threw out eight felony charges and found us each guilty of simple assault. I was sentenced to thirty days in jail.
Kenny, however, was on probation for another recent conviction. A white Rapid City liquor-store owner had beaten two old Indians with a bicycle chain, cutting them badly and breaking their ribs. Nothing was done to the liquor-store owner. To make sure that for the rest of his life he would remember not to treat Indian people that way, Kenny shot him with a .22. That had gotten him five years’ probation. Merhige voided the parole and gave him twenty-five months on the assault charge. Then Merhige suspended twenty months and sentenced Kenny to serve the remaining five concurrently. But going to prison cost Kenny his military disability pension.
Since I was still involved in the Minnehaha County courthouse police riot trial, the judge suspended imposition of my sentence until that proceeding ended. The best part was that I reacquainted myself with Peggy Phelps, then in her senior year at South Dakota State. There were lots of girls around, but Peggy stood out. She was slender, with hair down to her waist, very dark, and with a beautiful Indian face.
When I was shot on the Standing Rock, Peggy had tried to visit me in the hospital; my mother and aunts had turned her away. Now, during the Sioux Falls trial, we renewed our romance. Bursting with enthusiasm, she was naive about so many things, including AIM and her own heritage. Each day’s little discovery thrilled and amazed her. It was a beautiful thing to watch—a lovely young woman who was electrified and delighted at being an Indian. She soaked up everything she saw and heard and felt about our culture and history. Being with her recharged me. She gloried in my participation with AIM, and helped motivate me to stay with the movement. We quickly became soul mates, then lovers.
Of the two charges against me in Sioux Falls, “injury to a public building” was so ludicrous that we joked about it. The white man’s society prizes property so highly that it believes people should be punished for causing injury to an inanimate object! To get that charge through a grand jury, cops had testified that after we filed out of the courtroom and descended through the stairwell, I had taken a step from the foot of a landing and kicked out a window. The cops had gotten their stories in sync. They each said I had taken one step and then let fly. Those windows are ten to twelve feet from the stairs, so my stride would have had to be at least ten feet long. To prove that had never happened, the judge took his court into the stairwell and had me attempt to kick the window. It was so obviously impossible that Braithwaite dismissed that count on the spot.
But those of us charged in the courthouse riot were the first in state history to be indicted under a statute for “riot to obstruct justice.” My lawyers argued that the law was unconstitutionally vague. If more than two people met on a street corner and questioned a cop about the legality of what he was doing, they could be arrested. Braithwaite refused to dismiss the charge. I sat in complete awe as the government unfolded an absurd scenario to explain how I had planned the riot in Judge Bottum’s courtroom. As the feds had done for my trial after Wounded Knee, the state went looking for evidence to support the charges only after the arrests. According to the prosecuting attorney’s arguments, I had come up with a diabolically ingenious plan. According to the prosecution, I had instructed the spectators to refuse to stand. Somehow, I had learned that the Sioux Falls SWAT team would be waiting in the courthouse, and would be called when they refused to stand. When the police swarmed in, I had given a prearranged signal to people outside, telling them to smash courthouse windows and glass doors.
It is still amazing to me.
If those police and prosecutors were to be believed, I was not only a genius, but obviously the most powerful man in the whole country. Looking at the white men who came up with that story, I realized they had to be supremely evil. Not only had they conceived that incredible nonsense, they had accused me of it in a court of law and put it on paper for the world to read. I thought they had to be insane. I could conceive of no other explanation for their actions. Today, I realize that those men had not been raised as I was. They believed in evil, they contemplated it, and it inspired the improbable fantasies they put forth.
When the prosecution rested, we called dozens of witnesses—practically everyone in the courtroom, including four Lutheran bishops, several ministers, and representatives of the League of Women Voters. Every one of them was white, and every one of them described how the police had burst in and started to beat people. We had testimony from David Hill and Ramon Roubideaux, the first to be attacked even though they had had no role in the sit-down demonstration. Bottum was a prosecution witness. On cross-examination, Strange got him to testify that he had invited me into the courtroom to bring peace and that I had asked the people to stand up for him.
Despite all the credible evidence, Braithwaite, on the first Monday of 1976, following on the heels of his frontier forebears, got his Indian. In a travesty of justice, he found me guilty and sentenced me to four years in prison. I looked out the window at the dirty snow covering Sioux Falls and felt worse than I had as a teenager when, overcome with despair, I had contemplated suicide.