Defense Witnesses
In contrast to the cavalcade of witnesses brought forth by the prosecution, the defense called only five and did it in three days. The first was writer and lawyer Vine Deloria, author of Custer Died for Your Sins, who was currently writing a study of Indian treaties (Behind the Trail of Broken Treaties).
He was a Standing Rock Sioux from North Dakota who had grown up on the Pine Ridge Reservation between 1933 and 1951. After he told the jury about the “radical difference” between the way Indians look at the world and the way non-Indians do and about the Indians’ use of humor as a means of avoiding tragedy, he talked about the problem of stereotyping minorities in a nation of large technology and instantaneous communication.Defense attorney Larry Leventhal then asked Deloria if the Sioux people were generally familiar with the 1868 Treaty, bringing an objection by Hurd which was sustained by Judge Nichol. Leventhal then tried a slightly different question: Did Deloria in conversation find the Sioux people were generally familiar with the 1868 Treaty? Yes, he answered, some were intimately familiar with it, while others had a general knowledge of the oral tradition to the effect that the government had not kept the treaty. Judge Nichol allowed the 1868 Treaty to be introduced as a defense exhibit, which introduced a lengthy argument, with the jury and Deloria excused over the meaning of the treaty and its relevance for the trial. Judge Nichol regarded the motivation of the defendants. When Deloria was back on the witness stand, in spite of frequent objections by Hurd sustained by Judge Nichol, he was allowed to tell how the Sioux people understood the 1868 Treaty. He told of an “overwhelming consensus” of Indians who “take it literally,” understanding that it means what it says, considering it a sacred document with its interpretation a religious issue.34
Dee Brown, the author of the most widely read recent book about Indians, Bury My Heart at Wounded Knee, was the second defense witness.
When the questioning by Kunstler turned to the 1868 Treaty, Hurd, predictably, was on his feet with objections. Judge Nichol ruled that questions about the opinions held concerning the treaty would be permitted. This allowed Kunstler to bring Brown through a series of questions in which the historian gave his judgment that when the Indians signed a treaty it “was a holy thing, [which] meant we will not break the treaty.” He mentioned that the federal government “violated almost all of the treaties and still is violating all of the treaties that today’s activities would impinge upon.” Hurd instantly moved to strike the portion “still is violating” and was sustained by Judge Nichol. Brown was allowed, however, to give examples of how Indians tried to bring the federal government’s attention to the facts of the violations: they wrote letters, which went unanswered; they went to Washington, but were ignored; and when they used other than normal channels, such as forcefully confining an agent to his own house, the military was brought in against them.When Kunstler started questions about massacres, Hurd raised objections that were sustained. On the ground that Brown was an expert, Judge Nichol did allow Kunstler to ask what effect massacres at Wounded Knee and Sand Creek had on Indians. Brown replied that there was a “path of destruction across the West, one massacre following another to forty or fifty years” endangering the very survival of the Indian peoples. When Kunstler inquired whether the fear of massacre persisted to that day, Brown responded that psychology was not his field, although he admitted that while talking about history with Indians the topic did come up. He had noticed a change of attitude: “When I began to meet Indians forty years ago, most did not want to be known as Indians. Today almost all Indians are proud to be Indians.”35
In cross-examination, Hurd revealed some surprising gaps in Brown’s knowledge of Indian history.
Asked if he was aware that since the 1920s there had been a special place in the judicial branch for Indian claims and that between 1920 and 1946 the Sioux filed eleven claims, Brown replied, “No, I didn’t know that.”Hurd asked if he was aware of a new avenue since 1946, the Indian Claims Commission.
A. No, sir, I’m a historian of the 19th century.
Q. In other words, you don’t know what has been done in the 20th century, of avenues opened up for Indians to satisfy grievances under claims?
A. No, sir.
Q. You don’t know at present that there are seven pending dockets before the Indian Claims Commission involving the Sioux that haven’t been decided yet?
A. No.
Q. Your opinion that the United States failed to live up to treaties is based on what took place prior to 1900?
A. Well, I know that most of South Dakota does not belong to the Lakota Indians.
Q. Are you aware these treaties were changed at numerous times by subsequent agreements—between Indians or by Acts of Congress after 1900?
A. I know nothing about the laws after 1900.
Q. In order to say that at the present time treaties are not being honored, you would have to say that’s based upon what you know about what occurred prior to 1900?
A. Yes.
Q. You are not aware of various programs and funding that Congress made for tribes in effort to fulfill the 1868 Treaty in the last twenty-five years?
A. Not in detail, no.
Hurd then turned the questions in a direction which, if he wanted to keep the attention of the jury focused on the events of the Wounded Knee takeover instead of wider issues, was dangerous prosecution territory: historical justification. He asked Brown whether he believed that “the commission of a crime can be justified on the basis of what was done to somebody else at a different time and in a different place?” For the answer Brown gave—“There have been cases in history where violence was necessary to keep a group of people from being destroyed; it would depend entirely on the circumstances”—Hurd must have regretted raising the topic of historical justification.
Kunstler in his redirect examination of Brown naturally pursued the topic by asking if the Boston Tea Party was historically justified. Hurd rose in objection. Kunstler replied: “He’s opened that door, Judge, historical justification.” Although Judge Nichol sustained Hurd’s objection, Kunstler persisted with further questions about the American Revolution, and Hurd objected to each, with Judge Nichol sustaining the objections until on a question about the forthcoming bicentennial celebration he granted that “it leads to something, and I don’t know what, but I will overrule the objection.” Kunstler then asked Brown if he thought “the bicentennial celebration should be canceled because the people involved on the colonists’ side were committing crimes.” Brown did not, and Kunstler carried the questioning further by asking if Brown thought a long history of deprivation would provide motivation for the use of violence. Brown replied that every example had to be considered on its own: the Boston Tea Party, Hiroshima, the Warsaw Ghetto.Hurd, in a re-cross-examination of Brown, continued the historical justification topic by asking if Brown thought it would be historically justified to use violence because of long-standing social and economic problems.
Brown: I think so.… Personally I don’t like violence but…[there] are times in a people’s history when the only way to survive is by violence, and if this is the case where the people, the tribe’s existence was threatened, then I would say they would have to use violence.36
The third defense witness was 81-year-old Frank Kills Enemy, who understood English but used an interpreter for nuances. He had lived on the Pine Ridge Reservation near Wounded Knee all his life and was the grandson of Red War Bonnet, one of the signers of the 1868 Treaty. When defense attorney Douglas Hall asked him what his opinion was of the 1934 law setting up the tribal council, he replied that it was “all wrong from the start up to this present time.” He explained that when the Indians signed the treaty they did so with the “peace pipe, and this peace pipe is sacred.
Therefore, the people cannot lie, so they think the white man who made the treaty as it’s written here…they think what they say is true.”Hall explored with Kills Enemy the contrast between the traditional Lakota governance and that established by the 1934 act. Under the old system mixed-bloods and women were not allowed to vote. The head men called meetings and advised the people and, presumably, acted between the people and the chiefs. Kills Enemy had been chosen and served as a head man in the 1960s.
Hall: Who is the chief of the Oglala Sioux Tribe now?
Kills Enemy: Red Cloud.
Hall: Who is Dick Wilson?
Kills Enemy: He’s a mixed-blood. He’s not an Indian.
Hall: What position does he hold?
Kills Enemy: Oglala Sioux Tribal Council.
Hall: The council was set up under the 1934 Act?
Kills Enemy: Yes.
Hall: Tell us about life before the 1934 Act.
Kills Enemy: Before 1934, the people had cattle, horses, chickens, hogs. We were well off. Especially my father. We were three boys and four girls. We had hogs, chickens, cattle and horses at that time.
When Hall asked him what changes he has seen since 1934, Hurd objected, but Judge Nichol overruled his objection commenting that “we’ve got to find if there were changes.”
Kills Enemy: It’s bad.… So we have the Oglala Sioux Tribal Council. The self-government is supposed to be for the full-blooded Indians, according to the law…. After the ’34 Act, the government came in and it was made into units. Therefore, we cannot use our land.
Under Hall’s questioning Kills Enemy explained that white ranchers received leases on the Indian land from the BIA. When others came to him and he complained to the superintendent, nothing was done and conditions did not change. “We’ve been fighting the ’68 Treaty for many years, and now we want help. We can’t turn to nobody for help. We got no supreme laws of the land, and we’re discriminated from everything on the Pine Ridge Reservation, so we want help on our treaty.”37
The most impressive defense witness was Gladys Bissonette, an aunt of both Buddy LaMonte, who had been killed during the takeover, and Pedro Bissonette, who had been killed by police in October after the takeover.
Mark Lane questioned her about the events before and during the occupation, particularly the meeting at which AIM was invited to provide leadership. While testifying she held her grandfather’s peace pipe, which “was a rock given by Mother Earth, which means life, hope, and is to be upheld by the Indian people, and it is a very sacred thing to us Indian people.” She told how she held the pipe up after Richard Wilson’s “goons” stormed the meeting hall at the impeachment hearings, and, as she stood in the center of the room with the pipe, “you could hear a pin drop throughout the whole hall. None of the BIA policemen who had run in from behind me did dare go beyond me, and everything came to a halt in there. This is why I know my pipe is sacred.”She reinforced what Kills Enemy had pointed out, that the major grievance derived from the 1934 Indian Reorganization Act which enrolled nonmembers into the tribe, depriving “the grass roots people of our reservation” by controlling the allotted land and putting the reservation in the hands of “these new people…such as Dick Wilson and the rest of the people who work for the BIA.” With them, she asserted, came legalized beatings, murder, bootleggers, corruption throughout the reservation.”38
During an intense cross-examination, Hurd zeroed in on Bissonette’s attitudes toward “half-breeds.” “Ever since I was a child,” she observed, “the mixed-bloods were upheld. It’s the very same thing going on to-day…. They originally don’t—do not belong on our reservation.” Before the 1934 Act, she explained, full-bloods were in a better position on the reservation than were the mixed-bloods. The mixed-bloods left the reservation, giving up their Indian rights. But, thanks to the 1934 Act, they were brought back and given land.
Hurd asked her pointed questions about the guns at Wounded Knee and the inclination toward violence by AIM leaders. When she was read the words of Banks to the effect that AIM was going to win the war at Wounded Knee and that this confrontation was only the beginning, she responded by saying: “I would say that this was not the beginning of a war between the United States government and the Indians. We’ve been at war with the government all our lives.” She described leaving Calico Hall on February 26 and driving to Pine Ridge where she saw men, “all over the top of the BIA building,” marshals and FBI men packing sandbags and erecting machine guns. Hurd asked her if she knew that the marshals on Pine Ridge were under an obligation by law to protect federal property because, as happened in Washington, D.C., there might be an attempt to seize the BIA building. “I would like to know,” she responded, “why they would shoot us Indians down just to save a building. Take human lives to save a building? How greedy can you get?”39
When Bissonette’s testimony was concluded, Means stood and stated: “We believe that the story has been told. We stand on our treaty rights. The defense rests.40