Wounded Knee and the
1868 Treaty
By Larry Leventhal - February 28, 1998

(This article appeared in the mid-May, 1998 issue of News From Indian Country)

At the 25th Anniversary of Wounded Knee Symposium in Kyle, South Dakota on Feb. 28, 1998 the following speech was given by Attorney Larry Leventhal, recorded by WOJB-FM of Reserve, Wisconsin. Leventhal spoke about the Fort Laramie Treaty of 1868, and its impact on the court trials that resulted from the taking of Wounded Knee for 71 days by members of the American Indian Movement (AIM). Oglala Lakota Council Vice President Milo Yellow Hair, a Wounded Knee veteran, introduced Larry Leventhal, a member of the WKLDC defense team.

The legal defense team

Thank you, Milo for remembering Bill Kunstler, certainly a big legal giant of this century and Lou Gerwitz, who travelled the country, dealing with Indian people and problems that were being faced, probably more than anyone.

I'm happy to report that Ken Tilsen has gone through that triple bypass surgery, just the day before yesterday, but his family reports he is doing well and that he is talking and his outlook is very strong and very good. I'm sure we all wish him well.

I was asked to speak a bit about the treaty, the treaty defense, the 1868 treaty, during the trials 25 years ago. The treaty was a spiritual link with the past and with the future and when we started working on the cases, we were told that the treaty is why people were there and the treaty has to be brought before the juries, and before the courts.

That was the challenge because the courts don't want to hear about treaties, they want to hear about criminal laws. But we knew that the trials really had nothing to do with criminal laws because the only crimes were the crimes by the agents of the United States, and the crimes by the GOONS, Guardians of the Oglala Nation. Not the crimes of the people who came to Wounded Knee to stand up, because they were not crimes. They were there to honor the treaties, to honor the people, and that was something we had to bring out before the courts, and before the juries.

When we talk about a treaty, we are, of course, talking about something that is entered into between two sovereigns. And there was a treaty; there were a number of treaties, between the Lakota/Dakota peoples in 1868. Of course, there was the 1868 Treaty, sometimes called the Fort Laramie Treaty, and that treaty guaranteed a number of things.

That treaty had povisions which guaranteed the right of the peoples. Under US Law, treaties are part of the Supreme Law of the Land, and it goes further. The constitution says that all judges are bound by the treaties. It is in the constitution.

There are 371 treaties that were signed, and put into law. The 1868 Treaty was one of the last ones because the US stopped making treaties in 1871.

Under the 1868 Treaty, there were a number of provisions in the Articles which we should look at. Under Article 1, it provided that the United States desired peace and was going to make peace.

It talked about that there would be no illegal actions by the United States. It talked about that there would be bad men among the whites and they would be removed. Bad men among the Indians could be tried by the people there. It talked about the people who would or could be removed, or the tribe could deal with them, if it wished to deal with them.

It also said that no one who has sustained loss while violating the treaty can be reimbursed under the treaty in any way.

Under Article 2, it talks about these lands being set apart for the absolute and undisturbed use and occupation by the named Indians. The absolute use and occupation

It talked about that there would be no US agents on the lands, except in the discharge of duties enjoined by law, thus meaning that those doing illegal things were violating the treaty, because the treaty says they will only do what is permitted under law.

The actions by the United States at Wounded Knee, we haven't got time to go into all of the legalities but there were many. The courts found that there was illegal use of the military, illegal wiretap, false testimony, bribing of witnesses, covering up of crimes, subornation of perjury, deception of the counsel and deception of the courts. Lying. Those were only some of the things the court found. The things that were actually there were longer.

Article 5 reads that the United States will have faithful discharge of the duties under the treaty, and it says it will make prompt and diligent inquiry into all matters that are brought before the Unites States for investigation under the provisions of the treaty.

Well, the people at Wounded Knee brought lists of many things - violations - to the United States. They did not make prompt review of those. They did not make just review of those. They cast them aside, under, "we'll do what we want to do."

The different charges that people were charged with: knowingly and intentionally doing this or that or the other thing, entering into a conspiracy with knowledge of the illegal ends, when, in fact, the knowledge of the people at Wounded Knee was that the presence was on Indian land, of Indian people, that they were invited, and that the illegalities were on the other side.

Thus the treaty prevented, we felt, any type of conviction under these erroneous charges.

The law of the land

So we brought these charges up, we brought the treaty up, during the trials. We went into court with the treaty, an exact contact print of the treaty tom the national archives, and it sat on the defense table at all times.

Except when we picked it up and tried to introduce it into evidence. The court was not eager to have the treaty into evidence. Judge Fred Nichols started out chastising the people when they mentioned the treaty.

But as I'll mention later, he ended up instructing the jury that the treaty was the law of the land. The lands under the treaty are the lands that are set apart for the use of the Lakota and Dakota peoples.

The first witness that the government put on the stand was a person who brought a map. The government wanted to show where all this happened. They put on the stand somebody who was working for the Bureau of Indian Affairs, a Lakota person. The prosecutor asked him a couple of questions, "where is Wounded Knee, where is Pine Ridge and where is the reservation," and the witness pointed that out.

Under my cross examination, I took the treaty out and I asked if he was familiar with the treaty. "Yes." And I asked, the Big Horn River, would you point that out, and the mountains, point that out, and talked about the whole territory, and he said, "Well, that isn't even on the map, here." Well, where would it be? "Down there below Nebraska."

In pointing this all out, he stopped and said, "Can I ask you a question?" And I said, 'Yes, of course.'

And he says, "Whatever happened to all our land?"

Well, knowing that he summarized things far better than I could, I said, 'sir, that's what this trial is all about.'

The evidence

We kept trying to put the treaty into actual evidence. The judge refused it. The prosecutor, whenever we'd reach for it, would jump up and scream.

They had another witness. We really had our case proved by their witnesses, before we presented our witnesses.

The government had another witness, who was testifying to something that he saw in Wounded Knee, bringing something to somebody. It was pretty trite material, but he testified, and was asked "how did you get into Wounded Knee" and he said he had a passport, and so he got through the government forces, he got through the forces of the tribe, and he got through the forces of AIM.

On cross examination, I asked, 'What was the passport'?' He says, "The 1868 Treaty."

Well, that treaty does say that the Lakota and Dakota people have absolute I control of this land, does it not? "Yes." And is that what it meant, that you were able to get through? "Yes." And that it was honored by everybody? "Yes." So I moved to admit the treaty.

And the government is screaming that it's irrelevant and I say, 'it's their witness. It's his credentials, he testified those are his credentials...' (laughter) How can they present a witness, and say these are his credentials, and not let the credentials into evidence?

The treaty got into evidence.

Felt real good, because people started cheering and the judge says, "I won't permit cheering for evidence."

The major theme

The 1868 Treaty, through the trial, was a major theme. It was a theme that we carried through the trial and in the leadership trial, with Dennis Banks and Russell Means. The treaty went in to the jury with the evidence, when they went into the jury box.

As I mentioned, the judge, who was at first belittling any mention of the treaty, he learned, too. He gave the jury instructions on the treaty. There are books of jury instruction, but you can't look up treaties in there.

But we wrote out instructions, and the judge gave them, in part, but he informed the jury that the treaties between the United States and Indian tribes are part of the law of the land, that the 1868 Treaty was such a treaty, and that they were to consider that treaty.

He read to them what Article 5 of the treaty said, about the duties of the United States to answer claims of the Lakota and Dakota peoples, and to respond to them and said, whether they did or did not, whether they followed that provision of the treaty was up for the jury to decide. That jury reported later that they felt the treaty was powerful. The jury had acquitted in their vote on the conspiracy charge, which was the most difficult charge. Then a member of the jury had a stroke, so it was up to the judge decide the case, on motion to dismiss. And he dismissed because of government misconduct.

The treaty also played a role, of course, in other cases. And there were many other cases around the country. The nine month trial in St. Paul ended in October, and in December, we were back in a trial that for 13 days, was solely directed to the treat, This was before Judge Urbalm, and the issue on the treaty was a motion to dismiss all of the other Wounded Knee cases because of the treaty and what it said.

Judge Urbalm accepted our arguments as far as ground rules, and who could testify. He recognized and said that the treaties are par of the law of the land; he recognized principles that other cases had said, that treaties are to be interpreted by the Indian people who, signed them or the descendants of the people who signed them, because they had the best knowledge of this and because the treaties, being written in English, that they should be used to determine what the Indian people who had signed them had to say. He also agreed that the oral history of the people is competent evidence and can be presented in the court of law.

So we presented a number of individuals who gave very clear and very heartfelt testimony based upon the oral history that they had heard for generations.

We had experts and the witnesses who were spiritual leaders who testified, such as Henry Crow Dog, who read very fine, actually poetry. Experts, like Leonard Crow Dog, Vine DeLoria, Alvin Josephy, Roxanne Dunbar Ortis, Bea Medicine, Kurt Kicking Bird and others... There were even recently released criminal defendants, such as Dennis Banks and Russell Means, who gave very fine testimony. There were traditional people, most of them right from this area - Matthew King, Gladys Bissonette, Edgar Bear Runner, Louis Bad Wound, Reginald Bird Horse, Birgil Kills Straight, Verne Long, and many others, who all gave very strong testimony.

The court ruled that the treaty had indeed been violated. He said that the United States. treated the treaty with deception, that the actions were deplorable, such as decimating the buffalo. He said it was an ugly history, "White America may well wrench at the recollection of it."

But then he went on to say; that his status as a judge meant that he was bound to follow what the Supreme Court had said. The Supreme Court had basically said it didn't matter. He said his duty under US Law must be to follow the Supreme Coun, or otherwise he would be as dishonorable to the US Supreme Court as the United States had been in its promises to American Indians.

So I thought, there's a judge who understands what happened historically but who sees his role as perhaps chronicling ugly history. But when it comes down to it, he gives a decision that speaks for the law. The cases were not dismissed, rather than speaking for justice, which would have been to recognize that ugly history and say, "no more."

But, here we are, 25 years later. The leadership cases we talked about were dismissed, and indeed, almost all of the other cases were dismissed and almost all of the ones that went to trial were found not guilty.

There were hundreds of such cases. Usually the United States rate on convictions is somewhere about 95 percent. For the Wounded Knee trials, I think we calculated it was about three percent.

So if we look back, and I think looking back, we can also look into the future. We see piles of criminal charges based on imagination and on spite, that are gone. And we see a treaty that is existing and is strong and we're here today 25 years later, celebrating it.

And as we look into the future, that will be part of the future.

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