Conclusion
Questions about representation raised in trials of nationalists reach beyond the answers the trials provide. When, as the Panthers’ trials demonstrate, the indictment is broad and ideological, the trial is less likely to suggest a clear answer than when the charges are narrow and singularly criminal.
Yet if the focus is circumscribed by specific statutes and rules of evidence, as in the Keenan trial, the broader issue of nationalism may be avoided. Either way, trials of nationalists may become catalysts for political questions, although the opportunity may be missed.Even if the transcript of a nationalist’s trial yields no exchange on the basic question of representation, the trial itself may press the issue in the public’s mind and in the judgment of history. The tension built into such trials is between the unity necessary to hold society together and the separate identity required for human dignity. Those who stand with the Romans in the trials of Jesus and the early Christians; with Augustine, the Inquisition, and the Holy Roman Empire in the “correction” of the Donatists, of Joan of Arc, and of Martin Luther; with the British in the trials of Irish nationalists or Gandhi; with the prosecution of Hamsun, in the Black Panthers’ trials, even with Torquemada; all share a fundamental position which, at least in the abstract, is respectable: the unity of society requires common shared values. As Justice Felix Frankfurter said in his 1940 opinion in the first flag salute case: “The ultimate foundation of a free society is the binding tie of cohesive sentiment.”99 This, at its best, is the core of the prosecution’s case in every nationalist trial. It is not always pursued at its best.
Nationalists, on the other hand, do not accept the assumption that the values and the voice of the government represent the values and voice of the whole society.
In his 1962 trial for inciting South African workers to strike, Nelson Mandela, a lawyer and leader of the African National Congress (ANC), expressed the feelings of all nationalists who are on trial:The white man makes all the laws, he drags us before his courts and accuses us, and he sits in judgment over us. In this courtroom I face a white magistrate, I am confronted by a white prosecutor, and I am escorted into the dock by a white orderly. The atmosphere of white domination lurks all around in the courtroom. It reminds me that I am voteless because there is a Parliament in this country that is white-controlled. I am without land because the white minority has taken a lion’s share of my country and forced my people to occupy poverty-stricken reserves, overpopulated and overstocked, in which we are ravaged by starvation and disease. These courts are not impartial tribunals dispensing justice but instruments used by the white man to punish those among us who clamor for deliverance from white rule.
Any thinking African in this country is driven continuously to a conflict between his conscience and the law.100
This is the nationalist’s argument at its best, although not in every such trial is it expressed at its best. What Mandela says is also the nub of the problem each nationalist faces.
Many nationalists have had an experience in the outside before rejoining their nation. When they return to the fold they often become leaders and are arrested and tried for their work in the cause. Gandhi was a barrister at home on Chancery Lane and in the Inns of Court, until he felt the injustice of racial discrimination in British-ruled Natal, South Africa. Wolfe Tone and Padraic Pearse, two more barrister-revolutionaries, along with Sir Roger Casement, all had careers which were, to say the least, nonrevolutionary before they joined the Irish cause and became leaders. Tone was a British soldier, Pearse a reviver of Gaelic language and Irish legends, and Casement a British diplomat.
Russell Means, whom we will consider in the next chapter, although born not far from Wounded Knee, was an accountant in Oakland and Cleveland before becoming an AIM leader.Whatever their personal origins and ties with the nation, nationalists presume to speak for an entire people. Their leadership is dependent on those who follow them and for whom they speak, a reciprocal relationship. Their presumption of this is important. Nationalists who merely reflect the values and political awareness of their nation are seldom put on trial and are generally castigated as betrayers, ironically, by the militant nationalists. Those who run afoul of the law and are tried in nation-shaking cases are the nationalists who, to use James MacGregor Burns’s terms, are transforming instead of merely transactional leaders.101 While the transactional leaders seek accommodation, the transforming leaders “raise” their followers up and are likely to get into trouble as they do. They might look back only to find that few are following. The Irish nationalists have had that experience more than once. Yet that is precisely when a trial serves a political purpose: creating the very bond with their followers which the nationalists claimed existed from the start. The presumption that they speak for the people is made true because of the trial. One of the planners of the 1916 Easter Rising, Sean MacDermott, who was among those executed immediately after the insurrection failed, observed, “We’ll hold Dublin for a week, but we’ll save Ireland.”102
The problem is an old one—the relationship of the part to the whole. Can law and politics establish a bond representative of both the whole and the part? This question will be explored in a detailed investigation of the 1974 Wounded Knee trial in the next chapter. The trial of Dennis Banks and Russell Means provides a clear instance of the tension between the requirements of unity within a democratic society and the demands for national identity and dignity.