Opening Statements

The opening statements on February 12 illustrate two opposing attitudes toward the law. R. D. Hurd told the jury that the government would present evidence showing Means and Banks wanted to attract public attention to their grievances, make demands upon, and extort concessions from the United States.

By contrast, Russell Means, who along with Dennis Banks opened for the defense, set a distinctly different mood in his opening statement. He began with a greeting, “Hau mi tok pi,” and explained that he was a Lakota, that the word Sioux is French meaning “cut throat,” and that Lakota in their own language means “allies.” He told the jury that the defense would produce evidence showing that the real case was not the United States v. Russell Means and Dennis Banks but in fact the United States v. the Oglala Lakota and all Indian people. Means, like many defendants in political trials, reversed the indictment, indicting the government, especially the Interior Department, the BIA, and the FBI, for harassing and intimidating Indians, dominating the tribal government under the heel of the BIA, and forcing Indians to go underground in order to maintain their traditional religion. The Oglala Lakota, he maintained, have always lived with a communal government, respecting traditional chiefs and head men, but the BIA and their police based in the town of Pine Ridge are a puppet government which in no way represents the people of the reservation.

Means gave the jury a lengthy portrayal of Indian life and the differences between the value system the jury knows and the Indian value system. “You will find out that Indian people have respect for our brother’s vision. We do not have missionaries to change Crows to Siouxs.”¹⁷ The core of the value system is the belief that “all living things come from our sacred mother earth—green things, winged things, four-leggeds, things that crawl and swim, and of course two-leggeds—all are related and have to treat one another with the respect and reverence that we would our own blood relatives.” We, the two-leggeds, are the weakest because “we have no direction.” We have built our civilization to compensate for what the green things, the eagle, dove, raccoon, spider, and the snake have. A second essential to the value system is the knowledge “we knew eons before Christopher Columbus got lost,” that everything is round: the stars, sun, moon, trees, you and I, and those things held sacred—the drum, the sweat lodge, and the sacred pipe.¹⁸

Means continued, drawing the attention of the jury to the circumstances of the 1868 Treaty which, he claimed, in this case the government was violating, in spite of treaties having legal status equal to the Constitution. He related how he and others had gone to the U.S. attorney’s office in November 1972 and asked for intervention in the tribal government because the tribal court had issued restraining orders preventing Means from attending meetings and religious events or any gathering of more than three people, a clear violation of the First Amendment. But the Attorney, William Clayton, present in court after having just delivered one of the opening statements for the government, had responded that this was an internal matter for the tribe. All their letters to the president and Congress about the deprecation of rights on the reservation went unanswered.¹⁹

To the Indian male, Means continued in his opening statement, there are only five options for expressing his manhood: participate in athletics; put on a uniform and join the service; grab the bottle; mistreat his wife; or cut his hair, put on a tie, and “become a facsimile of the white man.” Means mentioned that he had taken the latter course earlier, but in the Lakota way if a man cuts his hair it means he is in mourning.

In the final portion of his opening presentation Means told about the Wounded Knee occupation. The trading post, he charged, had been operating for twelve years illegally, without a license, keeping people on the reservation in economic bondage through the trader system, and violating the Truth in Lending Act, usury laws, and postal regulations. As for the FBI agents and U.S. marshals, they had been illegally invited to the reservation by Richard Wilson without consent of the tribal council. The BIA and Wilson’s tribal government were corrupt, Means contended. As an example of corruption, Means cited a man who had worked in the realty division of the BIA for twenty-three years and now, together with his children, was the largest landowner on the reservation. Traders and government employees have acquired land illegally, but the Indian people do not have the right to make decisions concerning their own land. While the Indians had lived up to the 1868 Treaty, AIM by taking over Wounded Knee was asking the government to live up to its part. Means compared AIM with the early Christian movement and with the early days of the labor movement. The occupation was not the work of outside agitators but of Oglala. The Oglala people called in AIM after having “the door slammed in our face” by the tribal council, the BIA, federal judge, and the U.S. attorney. Means concluded by quoting Chief Joseph: “Give me the right to choose my own teachers; give me the right to practice a religion of my fathers; give me the right to travel and come and go as I please, and do business with whom I please; give me the right to follow the ways of my fathers, and I will obey every law or submit to the penalty.”²¹

The only objection the prosecution made to the opening statement by Means came at its completion when Kunstler embraced and patted him on the back.

Dennis Banks’s opening statement, by comparison, precipitated acrimony. He began by telling the jury that the reason for a change of venue to Minnesota was, as it had been put by Judge Nichol, that the people of South Dakota “would rather line us up and shoot us all dead.”

Court: Now, I never said that I felt that was…

Banks: One of the reasons we asked for the change of venue…

Court: Wait a minute, Mr. Banks…

Banks: Was because the prosecutions from South Dakota…

Court: Mr. Banks, I’m going to ask the marshals…

Banks: who have never seen…

Court: Mr. Banks. Marshall, will you take him and sit him down. Now Mr. Banks if you want to make an opening statement under the same rules as Mr. Means did, you may, but I’m not going to permit you to make an opening statement of this nature.

During a conference at the bench Judge Nichol told the defense that Banks was misquoting him and that the change of venue has nothing to do with the defendants’ guilt or innocence. He sustained the prosecution’s objection.²³

A few minutes later Banks claimed that the BIA failed to respond to the request by the family of Raymond Yellow Thunder that his death in Gordon, Nebraska, be investigated. William Clayton objected for the prosecution.

Court: “Yes, I think you have been very patient, Mr. Clayton, in not objecting before.” Lane responded that everything Banks had said would be presented, but Judge Nichol replied that nothing to do with Gordon, Nebraska, would be received as evidence. Lane argued that the defense would show how Banks became involved in the affairs of the Oglala Sioux, but Judge Nichol admonished him, “I don’t want to sit here and listen to another argument. Please sit down.”

Lane: Except the Court…

Court: Mr. Lane, I’m going to have you removed…if you keep on taking exceptions to my rulings.

When Lane and Kunstler objected, Judge Nichol had marshals remove them, called a recess, and met the attorneys in his chambers. When everyone returned to the courtroom the Judge explained to the jury that in chambers he had learned that Lane was taking exception not to him but to Clayton’s manner of objecting to Banks. “I guess I wasn’t listening very carefully.”²⁴ In spite of the lucidity and eloquence of Russell Means, the press coverage of the first day of argument stressed, nearly exclusively, the courtroom skirmishes, with such headlines as “Lawyers Ousted at Wounded Knee Trial.”²⁵