Final Arguments

During the clash of closing summaries in all trials, but especially in political trials, the opposition over the nature of law appears most clearly. These addresses to the jury are not merely summaries.

Hurd’s theme was that the Wounded Knee trial was a criminal trial only. In his view, the jury’s duty was limited to deciding whether or not Means and Banks were guilty of certain specific crimes: participating in the theft of merchandise from the trading post, assaulting three federal agents, and conspiring to disobey or disregard the law. It was not for them to decide, Hurd told the jury, whether the government had violated the 1868 Treaty or if the 1934 law was wise. Nor should the jury consider whether or not mixed-bloods should have the same rights as full-blooded Indians. Since no one can invite another to commit a crime and, thereby, excuse the crime, the jury is not faced with a question of whether the defendants were invited into Wounded Knee. Likewise, Hurd asserted that the case for the jury did not concern whether Means and Banks were motivated to reestablish their treaty rights. It is not “a philosophical dispute as to whether or not crimes may be committed in order to right past wrongs or bring about an ultimate good.” All these aspects were raised in the trial and permitted by the court to provide a broad background for understanding why the defendants acted as they did.

But the question for the jury, Hurd emphasized, remained confined to the criminal charges. “I don’t care and it doesn’t make any difference if conditions on the Pine Ridge Indian Reservation are good or bad. Conditions everywhere should be improved.… I don’t care if the 1868 Treaty was violated or was not violated by the United States. In our society we have methods and means of redress. Primarily there are two. There is the courts, and there is the ballot box.” Problems which the nation has not yet solved exist, “but if people in their vigor can inflict violence on innocent people, can commit crimes, then a system of democracy cannot exist. It’s anarchy. That’s saying that because my end is right, any means are justified. The theory that the end justifies the means is as old as history, but every civilized country has rejected it. To do otherwise is to destroy the very fabric that holds any society together.”⁵⁴ Thus, although he stressed to the jury that they should not look beyond the specific criminal liability in the case, Hurd also told them that their decision would involve civilization itself.

Defense attorneys Larry Leventhal and Douglas Hall picked up Hurd’s “I don’t care” phrases and turned them against the prosecution by emphasizing that they illustrated the government’s attitude toward Indians for the past two centuries. Whenever Indians attempted to use the proper channels to bring about a change of conditions, the government’s response was “I don’t care.”⁵⁵ In general, the defense encouraged the jury to take a broad look at the trial, to see it as part of a long-standing struggle waged by the Indians. While acknowledging that the trading post was looted, although not conceding that Means and Banks were involved, Kunstler emphasized in his closing argument that “this was an upheaval. This was a straining and a new experience. This was one of those occasions in history when human beings and social issues were in motion.” He made an analogy to a 1933 strike in Flint, Michigan, when the Plymouth auto workers took over the plant and refused to allow the owners in, temporarily held the managers hostages, and faced the National Guard which surrounded the plant.

Both the defense and the government warned the jury to guard against the thirteenth juror, prejudice. If any fellow juror made a comment which seemed inappropriate, Tilsen cautioned, it should be called to his or her attention.⁵⁷ Kunstler confessed that at age fifty-five he was beginning to understand himself a little and know that as a white person, deep down, he could not stand in front of his Maker and say he was a person without prejudice. All that is asked of anyone on a jury is that they attempt to suppress prejudice as much as possible while trying to grow and develop away from prejudice.⁵⁸

Hurd also warned against prejudice, the prejudice of the voice which declares, “â€?Look at what’s happened to the American Indian for 400 years,’ and these are people that represent all the American Indians, and to find against them would be to find against all the American Indians.” The tragedy in the case, he stressed, would be for the jury to endorse the crimes committed at Wounded Knee because they thought Means and Banks represented all American Indians.⁵⁹ By putting the jury on guard against the “prejudice” of seeing the AIM leaders as representative of all Indians, Hurd parried Kunstler’s comparison of the Wounded Knee takeover with the Flint strike led by Ruether and the UAW.

Both sides told the jury that the conspiracy charge was a matter of common sense. Hurd emphasized that when crimes were committed with a mutual understanding to disobey or disregard the law, no matter how informal or subtly agreed upon, that was conspiracy. The many overt acts, such as the meeting in Calico Hall, the lists of grievances and demands, need not be crimes in themselves merely because they documented the intent to advance willfully the purposes of the conspiracy.

Conspiracy law, the defense argued, was tricky. Even the judge did not like it, Kunstler suggested. “He told you so. He said �I might also add that I don’t care much for the conspiracy charge in the first place, and I think this isn’t the first time I have said so,’ but he will also tell you it is the law, and I tell you it is the law as well.” Nevertheless, conspiracy is the charge that has always been used against movements, Kunstler pointed out, whether it was the Chicago Seven, Father Philip Berrigan, the Vietnam Veterans against the War, the Black Panthers, or Angela Davis. Conspiracy charges are used because they are easiest to prove. That is, the jury is asked to consider a great deal of hearsay evidence which would ordinarily not be admitted. The evidence is allowed to be presented to the jury “on the feeling there is a conspiracy, and then you reason from the evidence that gets before you backwards that there was a conspiracy. It’s a nebulous and dangerous doctrine.”

The word conspiracy, Kunstler continued, has itself been given a sinister tone, suggesting “dubious and daring plots.” But the reality at Wounded Knee is that in the first days there was confusion, as in any social cataclysm, where some people lose their heads. If they are people who have had very little in their lives and then see a whole trading post open to them, they are tempted. But where, Kunstler asked, is the proof that Means and Banks planned and ordered the looting? The real evidence, apart from the discredited word of Moves Camp, Kunstler recalled, shows Dennis Banks seeking out and returning a treasured antique family clock to Mrs. Gildersleeve and Means ordering that artifacts from the museum be safeguarded in the church.⁶¹

If the jury used common sense in the way that the defense would advise, they would reject the notion that conspiracy is a mystical agreement given evidence to by circumstances alone.

Hurd argued that the grand plan behind Banks and Means’s conspiracy was to turn the reservation into a sovereign state. After success in South Dakota, AIM would take the revolution on to Arizona and Oklahoma. Finally they would return Indians to the old days before the 1934 Act and before the Congress and the Supreme Court modified the 1868 Treaty, a time controlled by the full-bloods.⁶⁴ Kunstler contended that, on the contrary, the defendants were attempting “to secure some reason for remaining alive; some reason so that Indian children didn’t have the highest suicide rate in the nation. That’s what was at stake in this courtroom. That’s what was at stake in Wounded Knee.”⁶⁵