WOUNDED KNEE: THE MASSACRE, THE INCIDENT, & THE RADICAL LAWYER

 

The Wounded Knee Incident began on February, 27, 1973 when approximately 200 Ogala Lakota Indians and other followers of the American Indian Movement (AIM) seized and occupied the town of Wounded Knee, South Dakota, on the pine Ridge Indian Reservation. The significance of Wounded Knee goes back to 1890, and it is what occurred there in 1890 that explains why AIM and other protestors chose this place to be the location where they made their stand.

DECEMBER 29, 1890.

The Battle of Wounded Knee or as it is also known, the Wounded Knee Massacre, took place on December 29, 1890, near Wounded Knee Creek on the Lakota Pine Ridge Indian Reservation.

In the years leading up to the conflict the U.S. Government had been encroaching upon lands that had been granted to the tribes through peace treaties. Settlers and gold miners, though the support of the Government, began to take lands from the Indians living there. Unrest on the reservation began to spread and the Indians that lived there began to tell tales of uprisal and revolt. The Indians would perform a “ghost dance”, and the white settlers that observed this ritual began to become uneasy and made their concerns known to the government agents in the territory. In response to the alarms of the settlers, U.S. officials decided to take some of the chiefs into custody.

On December 15, 1890, 40 Indian policemen arrived at Chief Sitting Bull’s house to arrest him. Crowds gathered outside the home in protest. As Sitting Bull tried to pull away from his captors, a shot was fired, and it struck and killed the officer that was holding him. More shots rang out and by the time it was all over six policemen and nine Indians lay dead, including Chief Sitting Bull. The supporters of Chief Sitting Bull scattered and joined other bands such as that of Chief Spotted Elk, fearing further reprisal by the government.

Chief Spotted Elk was eventually called to report to the Pine Ridge Agency, and he and 350 followers began a slow trek there. On December 28th, they were met by the 7th Calvary detachment under Major Samuel M. Whiteside. The Indians, who were armed, remained so as they were escorted to Wounded Knee Creek where they were told to make camp.
The agents intended to disarm the Indians, but had been advised against doing it immediately upon contact because it might lead to violence. During the evening Col. James W. Forsyth and the rest of the 7th Calvary arrived. Forsyth order the soldiers to set up rapid-fire Hotchkiss Mountain Guns around the encampment as the Indians slept.

The soldiers surrounding the camp numbered 500, the Indians numbered 350, 230 men and 120 women and children.

At daybreak on December 29th, Forsyth ordered the surrender of weapons and the immediate removal of the Indians to awaiting trains. 38 rifles were confiscated from the camp, and the soldiers began to remove more rifles from individual Indians.

It is disputed how it started, but one account is that a man named Black Coyote, who was deaf, did not understand the order and refused to give up his rifle. Two soldiers grabbed Black Coyote from behind and in their struggle his rifle discharged. Within seconds soldiers and Indians that still had their weapons began to fire indiscriminately, after the first shots were fired the mountain guns roared to life and cut down men, women, and children. Those Indians that fled were hunted down by the soldiers and killed.

Chief American Horse, of the Oglala Lakota, an eye witness said:

“There was a woman with an infant in her arms who was killed as she almost touched the flag of truce…A mother was shot down with her infant, the child not knowing that its mother was dead was still nursing…The woman as they were fleeing with their babies were killed together, shot right through…and after most all of them had been killed a cry was made that those who were not killed or wounded should come forth and they would be safe. Little boys…came out of their places of refuge, and as soon as they came in sight a number of soldiers surrounded them and butchered them there.”

The dead were gathered by civilians three days later and buried in a mass grave on a hill overlooking the encampment. In all, 84 men, 44 women, and 18 children were reported to have died on the field, at least seven more were mortally wounded. The Government responded by removing Forsyth of his command, but the general reaction of the public was favorable.

L. Frank Baum, who later authored The Wonderful Wizard of Oz, wrote in the Aberdeen Saturday Pioneer on January 3, 1891, the following:

“The Pioneer has before declared that our only safety depend upon the total extermination of the Indians. Having wronged them for centuries, we had better, in order to protect our civilization, follow it up by one more wrong and wipe these untamed and untamable creatures from the face of the earth. In this lies future safety for our settlers and the soldiers who are under incompetent commands. Otherwise, we may expect future years to be as full of trouble with the redskins as those have been in the past.”

AMERICAN INDIAN MOVEMANT (AIM)

The 1960s were a decade of protest, and incredible change. As the Civil Rights Movement, Chicano Movement, and Women’s Liberation movements of the 1960s began to change the landscape of our political and cultural world, another minority was beginning to find their voice in the crowd.

The American Indian Movement (AIM) was founded, July 1968, in Minneapolis, Minnesota. AIM was initially formed to address American Indian sovereignty, treaty issues, spirituality, and leadership, while simultaneously addressing incidents of police harassment and racism against Native Americans forced to move away from reservations and tribal culture. The various specific issues concerning Native American urban communities like the one in Minneapolis (disparagingly labeled “red ghettos”) include unusually high unemployment levels, overt and covert racism, police harassment and neglect, epidemic drug abuse (mainly alcoholism), crushing poverty, domestic violence and substandard housing. AIM’s paramount objective is to create “real economic independence for the Indians.”

The organization grew quickly and gained the recognition of national leaders, and other movements. Rev. Martin Luther King Jr. reached out to AIM while preparing to launch his Poverty Campaign, and Robert F. Kennedy met with AIM leaders while in California. However, it wasn’t until 1972 when AIM captured a real piece of the national spotlight.

In October of 1972 AIM and other Indian groups from across the country gathered to march on Washington D.C. The protest was called “The Trail of Broken Treaties” and began on the west coast. Indians gathered in a caravan and travelled by car, bus, and van until it reached its destination in November just before the Presidential election. They brought with them a 20 point position paper to present to President Nixon. When the President refused to meet with them, some members decided to occupy the Bureau of Indian Affairs building in Washington. A stand-off ensued for five days.

SETTING THE STAGE

Although AIM garnered national attention for the occupation of the BIA building in Washington, their labor bore no fruit. Shortly after the President won his reelection he refused to consider the 20 points of the Indian protesters and dismissed them outright. However, the members of AIM looked to the native lands of South Dakota and saw a situation that might serve to get their issues with the government some more notice.

The state of the Pine Ridge Indian Reservation in 1973 was not good. Crime was rampant, with a murder rate that exceeded the most violent inner cities when compared to its population size. Poor economic conditions, and drug and alcohol abuse left a torn and depressed populous. To make matters worse, the tribal government leadership was corrupt and fed off of the poor and impoverished citizens it purported to represent.

The tribal chief, Dick Wilson, was elected in 1972. He was criticized for favoring family and friends with jobs and benefits, not consulting with the tribal council, and creating a private militia, Guardians of the Oglala Nation (GOONs), to suppress political opponents, which he paid from tribal funds. (If this sounds familiar to any previous posts regarding a certain tribal government presently in Oklahoma, then thank you for reading our other posts.) After an attempt to impeach Wilson failed, women elders such as Ellen Moves Camp, founder of the Oglala Sioux Civil Rights Organization (OSCRO), reached out to AIM for help. Together they decided to organize a protest. They would join their causes in protest of the corrupt tribal government of Wilson, and demand the U.S. Government recognize their disputes regarding long-standing treaty violations. And where would they stage such a protest? At a location that symbolized deception, oppression, and annihilation, they would gather at Wounded Knee.

THE OCCUPATION

On February 27, 1973, AIM leaders Russell Means (Oglala Sioux) and Carter Camp (Ponca), together with Dennis Banks and 200 activists and Oglala Lakota (Oglala Sioux) of the Pine Ridge Indian Reservation, occupied the town of Wounded Knee. Armed with weapons, the protestors took and demanded the removal of Wilson, and treaty negotiations with the U.S. Government. The federal government established roadblocks around the community for 15 miles in every direction. In some areas, Wilson stationed his GOONs outside the federal boundary and required even federal officials to stop for passage.

About ten days into the occupation the Federal Government lifted the roadblocks and forced the GOONs away as well. As the cordon was lifted more Indians came into Wounded Knee. The stand-off had gained national attention and other Native Americans from around the country had come in to support their brethren. About this time, the leaders declared the territory of Wounded Knee to be the independent Oglala Nation and demanded negotiations with the U.S. Secretary of State.
A small delegation flew to New York in an attempt to address and be recognized by the United Nations. Although their attempt gained national attention, they did not receive recognition as a sovereign nation by the U.N.

It would be 71 days before the occupation officially ended, and both the AIM members and government agents traded fire over the course of most of the occupation. It could have possibly ended earlier, but the occupation was spurred on at the advice of their greatest advocate, a white man from New York.

WILLIAM KUNSTLER: RADICAL LAWYER

William Kuntsler was an attorney noted for his civil rights activism, leadership as director of the ACLU, and most prominently the defense of the “Chicago Seven”. The Chicago Seven (originally eight) were a group of protestors charged with inciting a riot at the 1968 Democratic National Convention in Chicago. The trial gained national attention when the exploits of the trial were broadcast on the nightly news. Kunstler and his co-counsel devised a strategy to put the government on trial, and the U.S. involvement in the Vietnam War.

What resulted was a monumental clash between the U.S., and the judge against the defendants and Kunstler. At one point Defendant Bobby Seals, leader of the Black Panthers was bound and gagged to his seat at the order of the judge. Kuntsler pointed out this travesty among others resulting in multiple citations of contempt by the judge. By the end of the trial Kuntsler had been sentenced to over four years in prison for contempt of court.
The Chicago Seven were convicted for violating anti-riot statutes. However, the convictions were all overturned including that of Kuntsler by the Seventh Circuit.

An Iroquois Chief for whom Kuntsler had done some work for year before, and Pedro Bissonnette, a leader of the Pine Ridge traditional Indians, both asked Kuntsler to become involved at Wounded Knee. He agreed and first arrived at the Reservation on in early March, probably on the 3rd. The very next day after he arrived the Feds offered to allow the protestors to stack their weapons, leave peacefully, and there would be no arrests.

Many of the AIM Indians thought they ought to take the deal; by this time AIM and its followers had occupied Wounded Knee for about a week, and thanks to national media attention, had made their political point. Kuntsler counseled against ending the siege early. “Of course, it’s more dangerous to stay and not take the easy way out,” he argued. “But on the other hand, what the hell did you do this for, anyway? Walking out, the time is lost. You’ve only been here a week.” Had the government known that Kuntsler was actively encouraging the occupation to continue, it would have indicted Kuntsler as well. Russell Means burned the governments offer as the cameras rolled.

Kuntsler left and returned to Wounded Knee once more to attempt negotiations, but it wasn’t until 71 days later that the actual occupation ended. After the occupation ended AIM supporters received 185 indictments arising out of the occupation.
Wilson remained in office. (The U.S. government said it could not remove an elected tribal official as the Oglala Sioux Tribe had sovereignty. Ensuing open conflict between factions caused numerous deaths. The murder rate between March 1, 1973, and March 1, 1976, was 170 per 100,000; it was the highest in the country. More than 60 opponents of the tribal government died violent deaths in the three years following the Wounded Knee Incident, a period called the “Reign of Terror” by many residents.

RUSSELL MEANS AND DENNIS BANKS FACE TRIAL

Even before the jury was selected, Kuntsler charged that the defendants were “on trial for what they believe not for what they did,” and the media reported that the defense strategy “will be to put the Federal Government on trial-to accuse it of seizing Indian lands in the 19th century through trickery, and subjugating a once-powerful nation of Indians with false treaties and broken promises.”

When the trial began it seemed that the government had an ally in the trial judge. Judge Fred Nichol was known to be a conservative jurist that had little tolerance for the kind of courtroom antics Kuntsler was known for. On at least on occasion Judge Nichol expelled Kuntsler from the courtroom.

As the trial progressed and Kuntsler began to lay the foundation of his defense, something seemed to change. What was happening was that the judge was, in a small way, starting to become radicalized. The Judge began to move from a position of sympathy for the government at the beginning of the trial to a position of sympathy for the defendants by the close. There are probably two reasons for this dramatic shift. First, remember the time in which this trial is taking place. As the trial is proceeding inside the courtroom, the nation is in complete turmoil outside. The Nixon Watergate and impeachment scandal is simultaneously taking place, and the entire nation is suddenly gripped with the very real prospect that government officials can lie, and deceive the public. Second, the judge and jury are witnessing the same kind of government prevarication, espionage, and duplicity evident in the Watergate scandal taking place in the same case that is before them.

At an early stage in the trial, Judge Nichol issued standard discovery orders, requiring the prosecution to turn over to the defense, copies of statements given by prospective witnesses, documents that would be useful to the defense, the names of all informants, and so forth. The prosecution claimed that there were no wiretaps or informants. As the trial went on it became clear that the documents provided to the defense were incomplete and in some cases actually altered. After the alteration was discovered, Judge Nichol allowed the defense to go through the FBI files for themselves, and what they discovered was astonishing. Defense attorneys discovered that 131 documents that should have been turned over, pursuant to a standard discovery order, had in fact been retained. The Judge’s attitude toward the prosecution became increasingly more negative every day, and he began making statements about the FBI not being what it once was, and using words such as “negligence” and “irresponsibility” to describe the behaviors of the prosecutors.

As the mood in the courtroom began to change so did the prosecution’s temperament for Judge Nichol. At one point the prosecutor openly argued that Judge Nichol’s openly “hostile attitude” might prevent the government from receiving a fair trial. He cited news accounts of Nichol’s agreement with Kuntsler’s former criticism of the FBI campaign against the Black Panthers. Nichols responded, “I don’t give a damn. I agree with much of what he says.” However, the case proceeded on and eventually the prosecution rested and the defense put on its brief case in about three days. Then once again the prosecution stumbled badly when it called Louis Moves Camp, a former AIM member as a rebuttal witness.

At first Moves Camp appeared to be a perfect prosecution witness. The government had already established that the trading post at Wounded Knee was broken into and items taken, that federal agents had been assaulted, and that a vehicle had been stolen. The difficulty for the prosecution was showing that Dennis Means and Russell Banks participated or encouraged these acts. Moves Camp supplied the prosecution all of the missing links. He testified that he had been in Wounded Knee during most of the occupation and had observed activities of the defendants that clearly linked them to the charged crimes. Kuntsler grilled him on cross, trying to pin him down to specific dates and times, and also to bring out pending felony charges, suggesting that Moves Camp was manufacturing testimony in an effort to get leniency on his own charges. At one point during the cross examination, the witness accused the attorney of “trying to put words in my mouth.” Kuntsler immediately shot back, “that’s already been done by others.”

Next, the defense brought in unimpeachable evidence in the form of television station logs, newspaper photographs, and handbills advertising live speeches, as well as live witnesses, that established beyond real doubt that Moves Camp had been in California during much of the time he testified he had been in Wounded Knee. That was not all. The defense learned that FBI agents had been entertaining Moves Camp at a Wisconsin resort prior to his court appearance. While under FBI protection, Moves Camp engaged in some drunken sexual contact with a woman he and the FBI agents met in a bar. The local police jailed him for rape and the FBI persuaded the local district attorney not to press charges because of his important testimony needed at the St. Paul trial of Banks and Means. When the FBI’s efforts to protect Moves Camp from prosecution first came to the federal judge’s attention, the federal prosecutor misrepresented the incident falsely calling it a public intoxication charge and nothing more substantial.
But perhaps the most stunning incident occurred late in the trial when Kuntsler was cross examining a state’s witness. At the beginning of the trial the court had ordered that all prospective witness be excluded from the courtroom, again a standard practice at jury trial. Kuntsler noticed that the side door to the courtroom was slightly ajar. As the witness was answering his most recent question, he slowly made his way to the door and yanked it open. Two clumsy FBI agents tumbled into the courtroom. Then came the closing arguments according to Kunstler, it was “as good a closing as I have ever done.” “I was so emotionally involved that I gave it everything that I had.” The case was submitted to the jury on September 12, 1974.

The jury would encounter some issues. After the alternate jurors was dismissed, one the remaining jurors fell very ill and had to leave his duty. Judge Nichol gave the prosecution and defense four options: the judge could have the deliberations continue with eleven, which was his personal choice; he could declare a mistrial; he could dismiss the case; or he could enter an acquittal. The defense agreed to continue with eleven; the prosecution would not answer without consulting Washington.

While awaiting an answer the lead prosecutor publicly declared that he felt the government hadn’t “gotten a fair shake in this trial,” and speculated on where a new trial would be held. His comments made it clear that he wished to have a second chance with a more prosecutorially minded judge, and maybe the defendants would lack the energy and resources to mount such a vigorous defense. Acting on the recommendations of the trial prosecutor, the Justice Department refused, as was its legal right, almost never exercised, to accept the verdict of an eleven person jury.

Judge Nichol was livid, both that the government would prefer a tactical advantage over justice and that the government was content with wasting eight months of the people’s time and money. He called his court into session, treated a previously filed defense Motion for Acquittal as a Motion for Dismissal, granted the motion and dismissed the prosecution forever. “The misconduct in this case,” he noted, “is so aggravated that a dismissal must be entered in the interests of justice.” “Because of the series of incident of government misconduct, which, I feel, form a pattern throughout the trial, I am forced to conclude that the prosecution acted in bad faith at various times throughout the course of the trial and was seeking convictions at the expense of justice.”

Kuntsler saw the trial through a bittersweet light. Ultimately he felt that justice was achieved by the judge’s ruling, but he was heartbroken to find that the victory won in St. Paul was more or less, in his view, limited to that courtroom. The years following the trial were not good, inner tribal and government confrontation continued to plague not only the residents of the Pine Ridge Indian Reservation, but all reservations, nations, and tribes across the country. Kuntsler felt that if he as a white man took up the mantle and defended the Indian against a government bent on oppression, that it would have an effect on the entire nation, unfortunately those beliefs were relegated only to his ego.

Progress on the Pine Ridge Indian Reservation has been slow to little. Alcoholism is still rampant in the community due in large part to poverty and lackluster educational opportunities. Aside from the Prairie Wind Casino, which provides around 250 jobs, opportunity seems to elude most of the residents. Broken promises and deception stain the proud history and tradition of a people relegated to place that seems to be stuck in time and potentially purposefully so.

THE MOST HATED MAN IN AMERICA

William Kuntsler never lost his appetite for defending the indefensible. Kunstler would go to represent a prisoner accused of killing a guard during the Attica prison riot, several noted New York mobsters, a member of the Central Park Five, and even Omar Abdel-Rahman (“the Blind Sheik”) accused of the 1993 World Trade Center bombing. William Kuntsler died on September 4, 1995 at the age of 76, or heart failure.

Bill Kuntsler was in every possible definition a “Radical Lawyer”. In the last years of his life his notoriety for defending the indefensible earned him the ire of most Americans. It was common place to see him appear on talk shows, like Phil Donohue, and rail against the mob-like chants of the studio audience. However, Bill Kuntsler demanded respect, his dedication to his clients was undisputable, and his love of the courtroom could not be more evident. On the day of his memorial the church burst at the seams as hundreds of people came from far and near to pay their respect to the “Most Hated Man in America”.

Kuntsler’s representation of Banks and Means and the people of the Oglala Lakota tribe had a tremendous impact on his life. At the conclusion of the memorial service, William Kuntsler’s daughter stood before all those gathered and spoke:

I shall not rest quiet in Montparnasse.
I shall not lie easy at Winchelsea.
You may bury my body in Sussex grass,
You may bury my tongue at Champmedy.
I shall not be there. I shall rise and pass.
Bury my heart at Wounded Knee.

(“American Names” by Stephen Vincent Benet)

 

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