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KEVIN MCKIERNAN: It was billed as the Indian trial of the century. The defendants viewed it as a treaty rights case. To the government, it was a conspiracy, larceny, assault prosecution. For the judge, it was something in between.

Russell Means and Dennis Banks were the first of six American Indian Movement leaders to come to trial for their role in the 71-day occupation of Wounded Knee, the historic hamlet on the Pine Ridge Reservation in southwestern South Dakota. Throughout their eight-month trial, they never denied that they and about 200 armed supporters took over the Pine Ridge Indian village on February 27, 1973 and held out surrounded by FBI agents, US Marshals, armored personnel carriers, and Bureau of Indian Affairs police until May 8, 1973. They defended themselves on the basis of a 106-year-old agreement, the 1868 Fort Laramy Treaty, by which Congress guaranteed the eighth Teton Sioux nations, quote, "undisturbed use," unquote, of all land in South Dakota west of the Missouri River plus territories in present day Wyoming, Montana, North Dakota, and Nebraska.

They charge corruption of the Bureau of Indian Affairs and, quote, "a reign of terror," unquote, by the elected Oglala Sioux tribal leaders on Pine Ridge. And they chose Wounded Knee for the symbolic significance of the 1890 massacre there of hundreds of Miniconjou Sioux under Chief Bigfoot, as well as scattered followers of the Hunkpapa Sitting Bull, a massacre by a reorganized unit of Custer's seventh cavalry, which had met defeat 14 years earlier at Little Bighorn. The trial of Means and Banks opened on January 8, 1974, eight months to the day after the last holdouts emerged from Wounded Knee the spring before. The government's case from the beginning was that society could not permit present-day laws to be broken to rectify past wrongs or that civilization would be replaced by anarchy. The 10-count grand jury indictment against Means and Banks charged them with leadership positions at Wounded Knee and thus responsibility for crimes committed during the occupation, whether they personally took part in them or not.

The defendants argued their intent was not to break American law, but to uphold Indian treaty law. When the case went to the jury, September 12, over eight months after it had begun, the 1868 Sioux treaty was as much a courtroom issue as it had been the previous January. Judge Nichol instructed the jurors that the treaty was in evidence before them, that possible violations of it could be considered in assessing the defendant's motive in seizing Wounded Knee.

But the judge instructed the jurors the treaty was not a legal defense. And he told them, quote, "even if the defendants acted out of the highest moral principles, such motives do not confer immunity from criminal prosecution. Purity of motive alone will not negate criminal intent," unquote. When the jury went out the afternoon of the 12, no one suspected there would never be a deliberated verdict in the case so the victory celebration began a little prematurely.

Defendant Russell Means sat through the long afternoon and early evening at the Smugglers' Inn across the street from the Saint Paul federal courthouse. With him was an entourage that included fellow AIM members, reporters, and three of the four alternate jurors who had sat on the case for eight months and who had been permanently excused that day when the regular nine-woman, three-man jury went into deliberations, and means the fiery, often abrasive hotspur who helped lead the takeover of Wounded Knee last year was laughing and buying the rounds of drinks. The 35-year-old Oglala Sioux didn't look much like a man who faces four additional criminal trials after that one, which was being deliberated across the street.

Means's colleague Dennis Banks, the 43-year-old Chippewa, spent the afternoon in and around the courthouse joking with supporters and with his Sioux wife Kamook who held their three-week old baby. Banks, the quiet enigmatic co-founder of the American Indian Movement, who took over at Wounded Knee when Means submitted to arrest a month into the 10-week confrontation. Means had quickly bailed out of jail and gone to Washington at that time for what then proved to be the abortive White House negotiations on the 1868 treaty. The jury deliberated almost eight hours Thursday afternoon, September 12, wrestling no doubt with social, as well as legal issues. And no doubt the memory of issues reflected in this following montage of voices filtered through their considerations of the previous eight months.

SPEAKER: Minnesota has now witnessed South Dakota justice for Indian people. This is what's going on every day in courts in South Dakota that are filling the prisons with Indian people, but it stops here.

SPEAKER: For a long time, in other parts of the world, violence to gain ends has not been unknown. In your South American countries and several of your European countries, it was almost an annual event. In this country, we were very lucky. For years, we got along without that type of thing.

We had a few political assassinations, but basically they were from deranged people. That seems to have started to change in the 1960s. There seems to have been more of an acceptance by ordinary people to violence. And I don't know what causes it, but it frightens me.

I don't accept that and I don't think most people do. I can understand it. I can even sympathize with it. But I can't accept it. In that sense, Wounded Knee is probably another sliver off that development in American history.

SPEAKER: And the fact that the very first witness the treaty went into evidence, that's the only reason why we were in Wounded Knee. And we want the jury to say, yes, Mr. Indian, you do have treaty rights. You're innocent of all charges.

SPEAKER: Well, I suppose it could be considered as an historic trial in that we can't divorce ourselves from the fact that the two particular defendants that are on trial are members of the American Indian Movement. And to some extent, the American Indian Movement is definitely trying not only to help their peoples, but they're trying to get some of those rights that were maybe in the treaties that were taken away by Congress restored. And the only problem is that this isn't a lawsuit to bring back those rights.

SPEAKER: I think this year cake symbolizes the contempt that we have for the government in bringing about these illegal charges against us. I think the real birthday that the people better worry about is the one in 1976. They will be on trial then. I think between now and then that they ought to prepare for that one.

SPEAKER: While I was seated on the sixth floor of this building, a marshal named Gerald Perman came up and smashed me in my left eye with all of his might with his right fist, causing my glasses to fly about 20 feet across the room. Seven or eight marshals witnessed that, as did Bill Kunstler. At first, he refused to give me his name and then he said, I'm going to work you over, you son of a bitch.

You can't go through life like that, you son of a bitch. I'm going to work you over so that no one will recognize you. That was witnessed by a group of Marshals who then said they didn't see anything. And I think that would give all of us an indication of how we can rely upon the testimony of marshals and other federal agents who have testified in this courtroom.

SPEAKER: I think that the judge has shown a great amount of patience throughout the course of this trial. And I think today, his patience ran out.

SPEAKER: There were pure motives for going into Wounded Knee. The American Indian Movement was asked by the Oglala Sioux people to come and save them from the fascism, which had been imposed upon them by the federal government, and a war broke out after they got inside there. And Louis Moves Camp is, in essence, telling atrocity stories. And even if they believed him, and I don't think anyone will, but if they did believe him, I think it is possible to believe him and then conclude it was just war on behalf of the struggle of the Indian people. And even in just war, sometimes atrocities are committed.

SPEAKER: It's a tragedy because this young man is literally throwing away his companionship, his loyalties, his friendships with so many people. And he is, in essence, fingering so many people for future indictments. That is very similar to David Greenglass I guess in the Rosenberg case who went into court and sold his sister and brother-in-law, as well as their children really to the wolves. That's a tragic thing to watch whether you're in court or out.

SPEAKER: That isn't him sitting on a stand. That isn't Louis Moves Camp himself sitting on that stand. You can tell the looks of him and the sneers he's got on his face, that isn't like Louis Moves Camp.

They promised Pedro a bed of roses to lay in all his life. He's laying in it all right. He's 6 foot under the ground.

I think they're keeping him from me. I'll just tell him quit his damn lying, that's what I'll tell him. He's lying about everything.

Every statement that they got him that he signed is a lie. He's putting himself in pen for the rest of his life. He's lying. Everything he said is a lie!

SPEAKER: Assume that Mr. Moves Camp is guilty of something in Wisconsin, I don't think that that really affects his believability in terms of this. We're in a modern age, sex activities are not an uncommon thing. It is my understanding, and I have seen no evidence yet that there was any rape, there was any force involved, or any consent involved. It's my understanding that it probably was a consensual act between consenting adults. In any event, I don't think that should affect his believability.

KEVIN MCKIERNAN: As it turned out, there was no jury verdict Thursday evening. The panel retired about 10:00 PM, scheduled to resume deliberations the next morning. That was to be Friday the 13th. When it came, there happened to be a new development, the hospitalization of one of the jurors and what then came to be the postponement of deliberations until Monday, September 16.

Public statements by the prosecution to the effect that the government would not accept the unanimous verdict of the still-sequestered 11 jurors left the case in a state of limbo. And the shadow of a possible mistrial hung in the air with the sense that something would break on Monday. However, on Sunday, September 15, we aired the prediction that there would not be a mistrial.

It's been a stormy star-crossed trial from the very beginning and it's not over yet. Friday's sickness of one of the Wounded Knee jurors, the oldest on the nine-woman, three-man panel interrupted deliberations, which had begun the previous afternoon. And it raised the specter that a mistrial could wipe out over eight months in the prosecution of AIM leaders Dennis Banks and Russell Means.

Mrs. Theresa Cherrier, a 55-year-old Saint Paul postal clerk, mother of five, was stricken with a high-blood pressure attack Friday morning, shortly after she and the other sequestered jurors finished breakfast and were to commence their second day of deliberations. She was hospitalized. It was decided Saturday that the court would then await the news of her medical status until Monday at noon before it could be determined whether she could rejoin the other members of the panel. If Mrs. Cherrier's doctor adjudges it harmful for her to continue at that time, a mistrial could be in the offing. It will not go through.

Chief trial prosecutor RD Hurd has come out publicly for a mistrial, which under federal statute can be granted if either the prosecution or defense refuses to go ahead with 11 jurors. The defense is willing, confident that the acquittal opinion of the alternate jurors who were released from their oaths on Thursday, is reflective of the overall jury sentiment. For the same reason, the prosecution is unwilling.

Assistant US Attorney Hurd said last week that it was not his job to win the case, but only quote, "to secure just verdict," unquote. However, following Mrs. Cherrier's blood pressure attack, Hurd indicated he would refuse to stipulate to a go ahead on the 11-person panel. He said he favored a mistrial because he thought the Wounded Knee jury was going to acquit Means and Banks and he would lose the case.

He said conviction of the AIM leaders would be easier in a second trial. It was important, he said, because the effect the imprisonment of Means and Banks would have on other Wounded Knee case is now pending. Moreover, the prosecutor strongly indicated that a conviction would have its effects on the potential future activities of the American Indian Movement, an implied concession that this has been a political trial all along.

However, from this perspective, neither a retrial or conviction of Means and Banks is now a realistic possibility. Over the weekend, defense attorneys representing the Indian leaders filed a dismissal motion based on the alleged continuation of government misconduct in this case. William Kunstler elaborates.

WILLIAM KUNSTLER: We had filed such a motion back in March of this year, but it was based only on certain things, including electronic eavesdropping, which was found to be the case at Wounded Knee, and some other matters. Since that motion was filed and disposed of by the court, there have been so many other instances of misconduct that we feel that we ought to have this motion filed with the judge so he can consider it in any event, whether the juror comes back or doesn't come back. And we are now preparing such a motion.

SPEAKER: If the judge were to rule that it was a mistrial, what would the status of your motion then be? Could he grant a judgment of acquittal after he had ruled on a mistrial or does it have to come before the mistrial decision?

WILLIAM KUNSTLER: I think it would have to come before. I don't think this judge wants a mistrial and I know full well the defense doesn't want a mistrial. The only person or agency that wants a mistrial in this case, of course, is the prosecution. Because as has been said by RD Hurd, the chief prosecutor, he thinks the jury is going to acquit. And therefore, he wants a mistrial so he can start over again, and as he puts it, not make the same mistakes that he made during this trial.

What essentially, he's saying, is that he wants to cause a miscarriage of justice. A jury ready to acquit, he thinks, should be stopped by any means possible so that he can get to another jury at another time. But the real thing, of course, is that the purpose of doing this is to keep the American Indian Movement tied down even longer than it's been tied down by this marathon case.

SPEAKER: Specifically, what kinds of government misconduct will your motion go towards?

WILLIAM KUNSTLER: Well, just to name a few, the testimony of one witness was stricken by the court because the government did not turn over a statement from him, which had had-- which completely contradicted all of his testimony. They let him testify without turning over that statement. In another instance, they have been now convicted of governmental misconduct in using the Army, and the Navy, and the Marines, and the Air Force at Wounded Knee without a presidential proclamation, which is a serious federal crime.

And lastly, they put on a witness, Louis Moves Camp, as their star witness, whose testimony was totally contradicted by others whom they could have checked just as easily as we could. But they did not check a single person and allowed him to take the stand for three days and perjure himself on the witness stand.

SPEAKER: Louis Moves camp, will Judge Nichol hold him guilty of perjury or charge him with perjury?

WILLIAM KUNSTLER: Well, the hard fact of the matter is that, normally, it's the subordinates who get charged with crime when they're led to commit it by high officials in the government. It's the William Calleys who pay for the crimes of the Nixons, and the Johnsons, and the Westmoreland's, and the Abrams. And I think that that would probably or possibly be the retaliation, but the persons who should go to jail in this case are the United States Attorney for South Dakota and all of those who worked on the trial, members of the FBI, and certainly probably people in the attorney general's office in Washington.

SPEAKER: How would it work if he did want to bring a charge of perjury? Would that be handled by the Minnesota district US attorney?

WILLIAM KUNSTLER: Yes, the same district attorney who has refused to prosecute Joseph Trimbach, the special agent in charge of the FBI office for the three-state area, which is centralized here in Minneapolis, who openly perjured himself on the stand, and about whom the judge said, I find that he has perjured himself on the stand in this case. And that's part of the record in this trial. We asked that he be prosecuted two or three months ago. But, of course, we've heard nothing from that and we never will because they simply don't prosecute people in the FBI. And I've never heard of a prosecution against an FBI agent even though scores of them have been involved in illegal activities of all sorts, including wiretapping, perjury, and so many other aspects.

KEVIN MCKIERNAN: The effect of the motion may create a new formula. The fate of Banks and Means no longer necessarily rides on the recovery of Mrs. Cherrier and her return to what is generally conceded to be a jury ready to acquit or at worst be hung, and thus incapable of a conviction verdict. So again, we hear the name Louis Moves Camp, the 22-year-old Oglala Sioux who participated in the February 1973 seizure of Wounded Knee and who only last month turned FBI informer. His was the only real testimony in the trial linking Banks and Means to the five remaining charges in the grand jury indictment. His 11th-hour appearance as a rebuttal witness in the final stages of this more than eight-month trial made him the government's star witness.

But his testimony didn't hold up and he may yet prove to be the government's undoing. Even Judge Nichol's opinion was that Moves Camp had lied on the stand. The thrust of the new defense motion is that the prosecution knew or should have known he would commit perjury.

If that is firmly established, there's a brand new ballgame. Judge Nichol, who ruled earlier that government misconduct in this trial had brought the case, quote, "to the brink of dismissal," unquote, could well say, enough, it stops here. If Mrs. Cherrier remains ill, the judge could well confront the prosecution with this ultimatum-- either agree to an 11-person jury or the court will grant a judgment of acquittal in the trial of Dennis Banks and Russell Means.

There were many recesses throughout the long trial, some were the result of collateral issues. When the Symbionese Liberation Army kidnapped Patricia Hearst, the SLA designated the American Indian Movement as one of six groups to oversee the multi-million dollar food giveaway program in California. The girl's father, newspaper publisher Randolph Hearst contacted Dennis Banks and Russell Means, asking them to come to San Francisco and to try to negotiate for his daughter's release.

The AIM leaders denounced the kidnapping, but secured a trial release from Judge Nichol and went to California. Later, Hearst sent a San Francisco examiner-reporter to Saint Paul to give the paper's readers their first coverage of the court case here. Then for several weeks, when it appeared Patricia Hearst might return, Wounded Knee and the American Indian Movement were front page news in San Francisco.

Judge Nichol granted another recess in the late summer when Canadian Indians seized Kenora Park in Ontario. Both the occupiers and crown officials hoping to avert bloodshed asked defendant Dennis Banks to fly to Kenora to negotiate a peaceful settlement. Banks went.

Six weeks into the trial on February 27, both Means and Banks asked Judge Nichol to recess court to honor the first anniversary of the Wounded Knee takeover. Judge Nichol refused the recess request. But while court went on that day, February 27, we aired the following tape on the first anniversary of Wounded Knee.

Innumerable news reports have been written and aired about that occupation. However, it is little known that over one half of the occupation had no first-hand media coverage from the inside of the sieged village. Today in Wounded Knee, traditional Indian religious ceremonies are marking that first anniversary. They are being held at the grave site of Buddy LaMonte, an Oglala Indian who was slain by the government in the village last year.

The following is an actual tape from inside the village during the firefight which took his life. I was the only reporter in the sealed village at that time. These are excerpts of sum of my moments inside the Wounded Knee museum, a log cabin converted by the Indians to a security headquarters building.

Their radio equipment monitored Red Arrow, the government frequency. Additional citizen band equipment was used to maintain contact with Indian bunkers within the village perimeter. One year later, the sound of Wounded Knee from the inside.

[EXPLOSIONS, GUNSHOTS]

SPEAKER: One or two people in Little Bighorn bunker have been hit. It's impossible to get a medic out because the firing is so heavy. Government forces monitoring Wounded Knee radio are aware that the people are hit.

SPEAKER: The bunker in front of RB 4, one of their people has been hit. Be advised, there are a couple of medics heading in that direction. Bring out a CP.

The Wounded Knee apparently has a wounded party in a bunker in front of RB 4, stated to us that they were going to send medics in. And the man that went to that bunker was carrying a rifle. We will not recognize a medic carrying a rifle.

SPEAKER: Big Horn, this is Clearwater. Can you tell me if the medic has made it down there to you yet? Little Bighorn, Little Bighorn, this is Clearwater.

SPEAKER: This is Little Bighorn. The medic hasn't come down here yet.

SPEAKER: OK, we understand she was under some gunfire coming down there. So hold on, she will be there shortly.

SPEAKER: Message from Wounded Knee, there's supposedly a Red Cross worker by the bunker or their bunker by RB 4 on Porcupine Road that's been pinned down for the last hour. They don't know if she's been hit or not and they'd like to get her out of there, over.

SPEAKER: I tell them that now they've got 10 minutes, one person with a white flag and no weapons. If they have weapons, we can open fire.

SPEAKER: She is a medic. She is unarmed. She only has medical supplies with her. Please relieve sniper fire that is aimed upon her.

SPEAKER: Be advised, you have 10 minutes with one person with a white flag to move that person out of that area. If there's any weapons or any fire, we will fire upon them, over.

SPEAKER: OK, Roger. We're getting a white flag ready now and there'll be one person going down there. We'll run down and check it out.

There'll be no weapons taken down there. And I'm trying to tell all our people around here not to open fire, but some of the people are out in fields. And I can't guarantee that somebody on the other side of the perimeter might not get pinned down, opened fire over there. But there won't be any fire from this direction down here in that area.

SPEAKER: Well, be advised, if there's any fire, they're going to open up fire. While one man unarmed to move that party out, over.

SPEAKER: You mean that if somebody opened fire over on the RB 6 that we're out of contact with it, they'll shoot this guy walking in the road?

SPEAKER: Today, if any firing coming from that area, any firing coming from that area, there'll be open fire. We're not going to tell our men to hold fire. You got 10 minutes starting now, one man unarmed with a white flag, to move that party out, over.

SPEAKER: Roger, I'm telling our people here. Little Bighorn, Little Bighorn, and Sonata, and Hawkeye, and Little California, hold your fire. Last Stand also hold your fire.

We got our man under a white flag that's going to go down and try and see if the medic has been hit. It's been down here on the road for a long time. Do not open your fire.

We have 10 minutes with one man under a white flag. If anyone opens fire, this man's dead. So hold your fire.

SPEAKER: Hawkeye, [INAUDIBLE] over.

SPEAKER: Ceasefire acknowledged, over.

SPEAKER: Looks like [INAUDIBLE] to me.

SPEAKER: There's three or four of them out there now.

SPEAKER: It is now approximately 10 to 2:00 in the afternoon. Two people are still injured out at the Little Bighorn bunker. Radio communications are broken with them.

We just heard that about one hour after firing started this morning, one man was shot and killed out at Last Stand, which is the Manderson Road bunker. He was going into the house to get something and he was shot while he was doing it. He died immediately.

KEVIN MCKIERNAN: The man was Buddy LaMonte, a 31-year-old Oglala Sioux, at one time an employee of the Bureau of Indian Affairs in Pine Ridge. Today, hundreds are expected at his grave site in Wounded Knee. For National Public Radio, this is Kevin McKiernan.

By various estimates, the 10-week occupation in 1973 cost the taxpayers between $5 and $7 million. The cost of the trial of Banks and Means was estimated by the chief prosecutor at three quarters of $1 million. But public opinion seemed to lay with the Indians during both the occupation and the trial. An April 1973 Harris Poll showed that over half of those surveys sided with the Indians against the federal police who surrounded Wounded Knee. Press coverage in the Twin Cities, where the case was moved after a venue change from South Dakota, was generally favorable as well.

National press coverage was limited during the trial. Television networks, smarting from heavy criticism they suffered for making the occupation, quote, "a staged media event," unquote, covered little but opening and closing arguments. Wire-service coverage was regionalized except for sensational aspects like the jailing of two defense lawyers and the courtroom fight between US marshals and spectators, both of which occurred late in the trial.

The end of the trial was covered nationally as well as regionally. Network reporters who had not been here since mid-winter were on hand to cover what ultimately came to be Judge Nichol's dismissal of all the charges. The jury's deliberation, had the case gone to verdict, might have been difficult, especially in view of the number of witnesses and trial exhibits to be considered.

Almost 150 exhibits, ranging from scraps of paper and photographs to an automobile dashboard and an FBI automatic rifle, went into evidence. Millions of words of testimony filled thousands of pages of court transcript. 135 witnesses appeared in the frequently stormy trial, which saw both government and defense lawyers often take the stand themselves. Government attorneys throughout the eight months argued that a bunch of "hoodlums," quote, unquote, took over Wounded Knee and, quote, "put a gun to the head of the United States," unquote to extort concessions. Defense attorneys argued that the prosecutions were political efforts to neutralize a social movement striving to restore the dignity of the American Indian.

To the American Indian Movement, when the dismissal verdict came, it was as symbolic as it was actual for the defendants themselves. Banks called it, quote, "a justification for the takeover of Wounded Knee," unquote. Means said it was, quote, "a vindication of my treaty rights," unquote. And it was clear to observers that AIM, whose membership had been decimated by state and federal prosecutions over the last 18 months, now would be revitalized.

Over 130 persons have been indicted for the Wounded Knee incident alone, but federal prosecutors have been nearly shut out in 33 non-leadership cases decided to date in Sioux Falls, South Dakota and Lincoln, Nebraska. Except for one nolo contendere plea, all defendants have been acquitted or the government has asked dismissal. The Wounded Knee verdict in Saint Paul is likely to influence the outcome of the remainder of the cases to be tried.

The government's case against Banks and Means in Saint Paul lasted six and a half months. The defense took four days calling only five witnesses, three Pine Ridge Indian Reservation residents, and two authors Vine Deloria and Dee Brown. Banks and Means never took the witness stand in their own defense, but they did act as co-counselors in cross-examination of government witnesses along with their attorneys who included Chicago Seven lawyer William Kunstler and Mark Lane, author of the JFK assassination book Rush to Judgment.

There were frequent outbursts in the courtroom. Kunstler, Lane, and a third defense attorney, Ken Tilsen, were ejected from the courtroom by US marshals on February 12, the day of opening arguments. On a later occasion, Lane was jailed briefly for contempt while questioning a government informer. Both Lane and Kunstler jailed overnight in late August in an argument during which a fistfight, Mace-spraying melee broke out in the courtroom in the spectator gallery between marshals and Indian supporters of the Wounded Knee defendants.

No permanent contempt citations against the attorneys remain for many of the trial incidents. Throughout both the government and defense arguments, the name Richard Wilson often appeared. Wilson, the tribal chairman of the Oglala Sioux with headquarters in the village of Pine Ridge, about 16 miles from Wounded Knee, was and is an arch foe of the American Indian Movement. His name and that of his so-called goon squad are mentioned hundreds of times in the district court transcript.

Early in the trial, Wilson's first term as tribal chairman expired. He sought re-election. The reservation was still polarized over the Wounded Knee occupation the year before.

The fact then that defendant Russell Means ran against Wilson only clarified the battle lines. Means outpolled Wilson in the primary in late January. In early February before the general election, I spoke with Wilson in Pine Ridge.

Several months ago, perhaps last summer, the tribal council here under your administration banned the activities of the American Indian Movement on the reservation. If you are re-elected tribal chairman, will that ban be reinstituted?

RICHARD WILSON: If I remember right, it's still in effect. And if I'm reelected, you better know it's going to be reinstituted if it's not already. Because I won't tolerate them and I won't call in the marshals this time either.

We'll handle them ourselves. We have one of the finest BIA police forces in the country. And when we put them together, they'll be able to take care of whatever needs to be taken care of.

KEVIN MCKIERNAN: Was that ban by the tribal court here overturned by a federal judge in South Dakota? And if so, could that happen again Mr. Wilson?

RICHARD WILSON: No, the only thing that the federal judge has done was allow the people of Wounded Knee the legal counseling that they needed. And of course, the way our ban was written, it meant all non-residents off of here. So we had to concede to that and allow the lawyers to come in.

KEVIN MCKIERNAN: Those who were gathering evidence for the Wounded Knee defendants, some of whom are now on trial?

RICHARD WILSON: Yes, mm-hm.

KEVIN MCKIERNAN: But if you are re-elected, you are saying that the American Indian Movement will be outlawed.

RICHARD WILSON: Yeah. As far as I'm concerned, yes. They're not even recognized by this tribe as a legally-constituted group.

All they are is rabble rousers. We don't have time for them. There's a lot of constructive things that we as the council would like to be doing other than having to defend ourselves constantly from outside threats.

KEVIN MCKIERNAN: Is the Wounded Knee occupation still a very divisive factor here among the people?

RICHARD WILSON: I think that can better be answered on February 7 when I win.

KEVIN MCKIERNAN: Indian religion and a return to a traditional spiritual way of life, is that an issue in the coming election here?

RICHARD WILSON: Yeah, I think it's going to be because the churches, the organized churches are supporting AIM.

KEVIN MCKIERNAN: Means and others have said they want to turn away from Christianity, that they want to turn back to the old religion of their forefathers of the medicine men, of the sweat lodges, of the Indian spiritual ceremonies, and so forth.

RICHARD WILSON: Well, that's their prerogative. They ought to go back to their city jungles and do it.

KEVIN MCKIERNAN: Do you feel there's anything that you'd like to say about the coming election, which I haven't covered?

RICHARD WILSON: Yes, I'm going to beat him something terrible.

WILLIAM KUNSTLER: Are you going to make any prediction at this time?

RICHARD WILSON: Yeah, I look to get about 1,500 votes, maybe a little better. And I figured him for about seven.

KEVIN MCKIERNAN: Do you anticipate any violence on the reservation surrounding that election?

RICHARD WILSON: No. As long as we keep the news media away from the polling places, and the hippies, and potheads, and dope fiends, and what have you, no, I don't expect no violence.

KEVIN MCKIERNAN: Do you put the news media in the same category with those?

RICHARD WILSON: Well,

[CHUCKLES]

You being one can speak for yourself.

KEVIN MCKIERNAN: The electoral turnout for the February 7 election was listed at 3,200. When the votes were tallied, Wilson had polled 1,700, Means 1,500. A surprise to some observers who had viewed the Wounded Knee incident as an outside agitation thrust upon unwilling Oglalas.

Subsequently, a suit was brought on behalf of Means in South Dakota federal court. It charged voter fraud and other irregularities. Surprisingly, the United States Justice Department filed a friend of the court brief, recommending that the election be reviewed for some of the same reasons. The outcome of that election challenge is still pending.

In late July of this year, the government rested its case against Means and Banks in Saint Paul. Between then and the opening of defense argument came a recess in which the Sioux Sun Dance took place on the Rosebud Reservation in South Dakota. The defendants had asked Judge Nichol to adjourn the trial for this religious observance. As it turned out, the Sun Dance fell in the natural recess between government and defense presentation. Here's a report.

To get there, you head west and south out of Rosebud Village, the tribal headquarters of the Brule Sioux. Running parallel on a line 25 miles above the Nebraska border where the reservation stops, you twist downwards through the draws and gulches on a rutted two-lane blacktop past Ghost Hawk Park where the road becomes a gravel washboard. Then west into the hot afternoon sun along the curving Little White River, you cross the Two Strike Bridge.

Above you on the right is a steep pine-studded hill. At the top, from a wooden tree pole, a solid red flag flies in the wind at the grave site of Frank Clearwater, the 47-year-old Cherokee killed last year at Wounded Knee, 90 miles to the west. He was brought here to Crow Dogs when the government refused to allow his burial in that occupied village.

Down the hill across the road is Crow Dog's Paradise, 160 acres, now an Indian village of over 1,000, 1,000 camped in preparation for the sacred Sun Dance. You pull your car into line for registration under a mammoth log tepee, which straddles the dirt driveway. The sign next to it says, "All vehicles subject to search. Alcohol, drugs, weapons cameras and recorders will be confiscated."

You sign a red registration card. If you're not Indian, it's $25 a person collected by the six-man security force, the young braves with clipboards who operate the swinging barricade gate. Tourists aren't encouraged. In fact, there was somewhat of a bitter division among Indians as to allowing whites to attend the annual religious rites. But old Henry Crow Dog, on whose land it is, wanted it open. Only the spirit matters he said.

Still there are few whites here. Hundreds of cars and trucks, Indian people here from as far away as Vermont and California, whole families here for four days of singing, dancing, and eating. The tepees and tents stretch hundreds of yards from the road back to the shallow, fast-flowing Little White River behind. They circle the log cabin and tar paper shacks in the center where Crow Dogs, generations of medicine men, live year round.

On the eve of the start of the Sun Dance last night, the campfires burned and the powwow drums beat late into the evening. Cows were butchered, Indian fry bread cooked, coffee beans roasted. You awake at sunrise in a bedroll under cottonwood trees by the river. It's the first day.

The sweat lodges at dawn, many of them skins and tarps pulled tight over the bound branches which form the round skeletons of the low-slung huts. 8 or 10 naked people huddled on the earth inside each one. Water ladled into a dugout pit in the middle filled with fiery rocks which have been cooking for hours outside in a bonfire. Pipe smoking and prayers in the hot steamy darkness.

And then afterwards outside, your lungs bursting in the cold morning, feeling your breathing pure oxygen through every open pore. And then breakfast, but not for the Sun Dancers. No food or water for four days if you dance.

You fast and you pray. This is your own calling. No one forced you here.

This year, there are 38 male dancers, 19 female. At 7:00 AM, they begin dancing. East of Crow Dog's house there's a giant arena 75 to 100 yards in diameter.

The dancing begins. The women in heavy-fringed leather, the men in colored skirts. Everyone barefoot, they all wear anklets, bracelets, and crowns of woven sage, two eagle feathers atop their heads, an eagle bone whistle clenched in their teeth. They inhale and exhale flute-like sounds in rhythm to the pounding drum.

All day they dance in the circle. They are broken into four groups. At the south end, there are two sticks bearing white flags.

On the east, two yellow flags for the sun. On the west, black for darkness. On the North, red for Indians came from the north.

Between the black flags on the west is an Indian altar, a Buffalo head, herbs, medicines, and pipes. In the center of the large circle is a tall poplar tree stuck deep in the ground and festooned with a dozen solid-colored flags. The four races of man-- black, yellow, white, and red plus a blue flag to represent the sky, a green one to symbolize the earth.

By afternoon, the temperature is in the high 80s and the dancers are covered with sweat. Their arms are outstretched toward the sun, feathers, ringlets of sage, or sacred pipes in their hands. Many of the pipes were held by their grandfathers when they danced here.

Around the circumference is a circular arbor of shade provided by a log canopy filled with pine needles. Underneath are the spectators and the old men who take turns singing and playing the omnipresent drum chants. It's even hot in the shade, but the onlookers have water jugs.

The dance stops and begins again, many familiar faces in the dance. American Indian Movement leader Dennis Banks, his third year. Clyde Bellecourt is here, his naked stomach a mass of surgical railroad tracks from a gunshot wound on this reservation last summer.

Russell Means is not here. He was jumped by Mission, South Dakota police in Valentine, Nebraska, a border town, two nights ago, an apparent retaliation for beating up of two officers in the Mission Golf Club in June. He and some supporters are recuperating now in a Rapid City hospital. The master of ceremonies talks on the loudspeaker to the Sun Dancers asking prayers for Means so that he'll be well enough to dance for the remaining three days beginning tomorrow. It's Means's fourth and final year.

The dancers are called back into the hot, dusty circle in front of the drum. The drum has stopped. The old men say they can't go on until first they eat. They hold up food and cool water in front of the fasting dancers taunting them.

Medicine man Lame Deer, seeker of visions, walks among the groups divided in the arena in front of the four wind directions. His salt and pepper hair is tied off in long braids. He kicks up dust in his calf-high moccasins, brushes some of the dancers with a red and black eagle feather.

They begin to dance. The drum, the bone whistles, the chants start from the surrounding shade. Lame Deer is an old man pretending to be absent minded as he chews and savors a piece of golden fry bread on his crisscross walk through the arena.

The Sun Dance Was started by a fellow named Spread out in the Black Hills thousands of years ago. It was outlawed in 1889 after a man died of the chest piercing on the last day of the ritual. It was started up again briefly in 1928. And then Frank Fools Crow, the 80-year-old chief who sits here under the pine needles canopy by the drum, revived it again in 1958, promising the government that the chest incisions would be shallower.

The old master of ceremonies, Matthew King, tells the dancers that in the old days, they had to dance for four days and four nights for the sun vision. He taunts them. Nowadays, you must fast and dance only for four days, he says. But away from the microphone, King tells me that each year since 1958, the chest cuts are deeper and deeper. Each year, he says, the Indians want them deeper in their skin.

75-year-old, toothless Henry Crow Dog who opened his land for a staging area for guns, ammunition, and food lifts during the Wounded Knee siege takes the microphone. You must be humble for the Great Spirit to hear your prayers, he says. The outstretched arms of the tired dancers reach for the burning sun. You must be humbled to get on the good side of the great spirit.

Everyone listens to Crow Dog talk. It's the Hebrews in Egypt under the pharaoh. We are the chosen people, he says.

We are the chosen people of the Western Hemisphere. We will survive. He says it in Lakota-like cadence of his staccato English.

And then from last night, you remember Matthew King who is also Chief Fools Crows interpreter. The old man King talking. The dancers, he said, make a commitment a year before the dance to dance four years in a row. Some vision they ask for. They pray every morning and every evening.

They ask for wisdom, wisdom to know themselves, to be whole persons. They prepare themselves. They ask for strength and guidance.

No one tells them to do this thing. No one makes them dance. You have to want to do this sacrifice. You pray for God's help for your life.

We have always been at the bottom, he said, but we are going to win. This is our land, our country. You have to have faith.

You have to believe from the top of your head to the tips of your feet. Then watch the sky, watch the sky for signs. The eagles who fly there, they approve. They carry the prayers to the Great Spirit.

Tomorrow, the Sun Dancers begin the three-day piercing ceremonies. Their chests are cut open, a length of bone or wood is slipped through two slits of skin. Around the length is fastened rawhide tongs, which are strapped to a 20-foot cord, which in turn is tied to the flag-draped poplar tree in the center of the arena.

The fasting dancer cannot touch the wound or cord. He must dance away from the tree, pulling the cord tight until, even if this lasts all day, it succeeds in ripping the flesh from his chest and freeing him from the pierce. No one can help him. No one can help him even if he falls unconscious.

It is, says Matthew King, his struggle. He seeks his own vision alone. At the Sioux Sun Dance near Crow Dog's Paradise on the Rosebud Indian Reservation, this is Kevin McKiernan.

On September 11, one day before the Wounded Knee jury got the Banks-Means case, these stations aired an interview with Chief trial prosecutor RD Hurd. Hurd spoke among other things about the role he played in the long trial.

RD HURD: A prosecutor's job is not to get convictions. A prosecutor's job is to prosecute the case, to put in the evidence to represent society or the public, and to try to get all of the evidence that is fair and honest before the jury. Sometimes you succeed and sometimes you fail.

But that's your job. You don't convict anybody. And so once I have finished arguing, once the court has instructed, once the jury has begun its deliberation except for some minor bookkeeping problems that may arise during their deliberations, my job is essentially over with and it's their job. And as long as I can say I have done my job, then I'm not going to worry about whether or not the jury does theirs.

KEVIN MCKIERNAN: On September 13, the day after the jury got the case and the day of one of the jurors illness, the illness which interrupted and later canceled deliberations, I spoke again with Prosecutor Hurd. Are you in favor of a mistrial at this point?

RD HURD: Well, I'm leaving my options open on that until the decision has to be made and I've had an opportunity to fully confer with people in Washington, the Department of Justice on it. But my inclination is, yes, I think probably a mistrial rather than going with only 11 jurors because I do feel that this juror is a good juror for the government.

KEVIN MCKIERNAN: Would your suggestion on that regard also be based upon the public statements made by the three alternates who indicated they were for acquittal?

RD HURD: Well, to a certain degree, yes, because that indicates to me that our chances of getting a conviction are not very good. And of course, that's always if I thought we could get a conviction for sure with 11, I would have a different attitude. Because I have some grave doubts about the ability to get a conviction on at least one count with them, my inclination is to go the other way.

KEVIN MCKIERNAN: Might the decision finally, ultimately come from Attorney General Saxbe himself?

RD HURD: Well, it'd be very unusual for an attorney general to decide whether or not you should or should not agree to an 11-man jury. Those aren't the kind of decisions that attorney generals normally make. I would be very surprised if the attorney general himself would be involved in that kind of decision.

KEVIN MCKIERNAN: Except if that decision does in fact bear so strongly on the outcome of the case.

RD HURD: Well, but that decision would bear strongly on the outcome of every case. I've had to make similar decisions on other cases. I've never called the attorney general and said, hey, attorney general, what should I do? I would be very surprised if the attorney general personally became involved in that kind of decision.

KEVIN MCKIERNAN: But isn't there more in your mind riding on this case than whether or not Banks and Means go to prison? Won't it have a tremendous symbolic effect on other cases, all the other perhaps even 100 Wounded Knee cases?

RD HURD: I think this case is significant in that I think it's important to obtain a conviction in this case and more so perhaps than in other cases because of the effect that it's going to have on other trials, on other defendants, and on perhaps a basic question as to what methods and means are available to people seeking redress. So it is an important case. But at the same time, the attorney general's job would-- he's not really in a position to determine whether or not the chances of getting a conviction would be better, or less better, or whether or not the costs and to evaluate these things than he would be in other cases.

And I just doubt very much if the decision would come from him. It could. And it may be that people in Washington that I've talked to have or will talk to the attorney general.

KEVIN MCKIERNAN: RD Hurd, chief trial prosecutor on September 13. On September 17, the outcome of the entire case was settled as the following report to National Public Radio indicates.

SPEAKER: Yesterday saw the end of the trial of two American Indian leaders on charges stemming from last year's occupation of Wounded Knee South Dakota. Kevin McKiernan of member station KSJN in Saint Paul, Minnesota has been following the trial for All Things Considered for the past eight months. And today, he has a final report.

KEVIN MCKIERNAN: "It's been a bad year for justice in this country, a bad year for justice." With these words, Federal Judge Fred Nichol announced his decision to drop all remaining felony charges against Wounded Knee occupation leaders Dennis Banks and Russell Means. The decision was prompted by a judgment for acquittal motion brought by attorneys for the Indian leaders. It followed the government's refusal to agree on an 11-person jury, when after the full panel had deliberated the case for eight hours, a 55-year-old juror suffered a heart attack and could not continue.

Banks and Means were originally charged in a 10-count conspiracy indictment. Five charges were dismissed in July when the government rested its case, dismissed mainly for reasons of legal insufficiency. The five dismissed yesterday, conspiracy in the Wounded Knee seizure, larceny of the village's trading post, and three counts of assaulting federal officers were dropped because of government misconduct.

Federal statute provides automatic mistrial in a case of a juror's inability to continue after deliberations have commenced if both prosecution and defense lawyers won't stipulate to an abbreviated jury panel. The defense was willing, the prosecution unwilling. And the final refusal came from high levels in the Justice Department in Washington after alternate jurors here, released from their oath before the heart attack occurrence, indicated the other jurors would probably acquit the AIM leaders.

And Judge Nichol was incensed. In dismissing the charges, he delivered a blistering 75-minute attack on assistant US attorney RD Hurd, the prosecutor and upon the FBI. Nichol said Hurd was more interested in conviction than in justice. He implied that Hurd had not acted as a servant of the law and then the judge moved to a trial occurrence of last month for his harshest words.

Nichol accused the prosecutor of collaborating with the FBI to quash an August rape investigation of the government's star witness. Nichol said Hurd had lied to the court and that FBI agents were guilty of misconduct in, quote, "stooping to such a low state," unquote. The US attorney said Nichol, quoting from another decision, "may strike hard blows, but he is not at liberty to strike foul ones."

Judge Nichol also dismissed the charges on what he ruled was the illegal participation of the United States military at Wounded Knee. The Pentagon had covertly supplied more than $300,000 in arms, personnel, and assistance to federal agents during last year's 71-day siege at that Pine Ridge Reservation village. Quote, "We don't want the military running the civil affairs in this country or having anything to do with the execution of laws," unquote. But it was clear that the misconduct of the prosecutor, and especially the FBI, which Nichol said had caused dismissal of another AIM trial he presided over, the Twin Cities Naval Air Station take over four years ago, was chiefly responsible for the outcome of the Wounded Knee decision.

FRED NICHOL: I think the worst corruption that's probably taken place of the FBI has been the result of the Nixon administration.

KEVIN MCKIERNAN: You don't seem to think that the Ford administration is going to make any difference.

FRED NICHOL: Well, I certainly had great hopes of the Ford administration until the pardon by President Ford of ex-President Nixon. I think that's turned me off and I think it's turned an awful lot of other people off.

KEVIN MCKIERNAN: The defendants treated the dismissal as an acquittal. Dennis Banks was jubilant.

DENNIS BANKS: I feel fantastic.

[LAUGHTER]

SPEAKER: How do you feel?

DENNIS BANKS: Fantastic!

KEVIN MCKIERNAN: Russell Means said the dismissal was a vindication of his treaty rights.

RUSSELL MEANS: It shows that people can stand up for this. It shows Indian people all over the country that we can stand up for our rights and people will recognize it.

KEVIN MCKIERNAN: So the Wounded Knee trial, which began here last January 8 is over. After more than eight months of evidence, 22,000 pages of transcript, 5 million words of testimony, and a cost to the American taxpayers, according to Prosecutor Hurd, of over three quarters of $1 million. And the outcome may affect the fate of over 100 other Wounded Knee cases now pending. For, as Judge Nichol in his decision yesterday analogized to the President Ford ex-President Nixon pardon, quote, "Is it fair for the Wounded Knee non-leaders to be guilty if Dennis Banks and Russell Means go free?" unquote.

It was generally a bad case for the FBI. Throughout the trial, the defense charged the government with bad faith prosecution and compared the conduct of the FBI and other federal agencies to the Watergate scandals. Six evidentiary hearings interrupted testimony in the trial. Most were the result of defense allegations of government misbehavior.

The hearings logged hundreds of hours and saw the witness stand appearance of dozens of FBI agents. During one, which accounted for almost a five-month interruption last spring, Judge Fred Nichol ruled the FBI had, quote, "obliterated," unquote a piece of trial evidence. For this and other reasons, he ordered the FBI's entire file on Wounded Knee impounded by the court, a precedent-setting action.

It was then discovered that the FBI had 315,000 separate file classifications on Wounded Knee. This revelation caused the judge to remark, if this government ever falls, it won't be because of outside subversion. It will topple over under the sheer weight of its own paperwork.

Charges against the FBI during the trial seemed almost ceaseless. When three agents visited the news editors of the Saint Paul Dispatch and Pioneer Press early in the trial, the defense alleged intimidation of the media. The judge ruled against a hearing for that matter.

But later, when an initial two-day hearing on the FBI wiretap at Wounded Knee stretched out beyond a month, the judge said his opinion of the bureau had changed. Quote, "I used to think the FBI was one of the best organizations ever to come down the pike, but now I think it's deteriorated, deteriorated badly."

When Joseph Trimbach, the special agent in charge of a three-state area centralized in a Minneapolis office, told the judge he knew nothing of the Wounded Knee wiretap. The defense then produced a wiretap application and affidavits in Trimbach's name. Nichol angrily rebuked Trimbach. The judge indicated out of court that that agent in charge had perjured himself.

Later, when one of the agents who actually did some of the phone monitoring at Wounded Knee admitted that on the stand, defendant's Means and Banks tried to make a citizen's arrest of that man in front of the jury. Judge Nichol told the defendants he could not permit an arrest in his courtroom. Means and Banks and their supporters then chased the agent through the streets of downtown Saint Paul. The man wasn't caught, but this and other such incidents in the trial often prompted reporters to ask, just who is on trial here?

Later in the case, in the midst of a hearing to determine whether a seven-count rape complaint against the government's star witness had been quashed by the FBI, an incident occurred which Judge Nichol was to call bizarre. During the testimony of a sequestered FBI witness, two other agents were uncovered as they eavesdropped from a door behind the jury box. Judge Nichol abruptly recessed court. He called the agents into his chambers for a tongue lashing. And so it went seemingly until the final dismissal.

Now that the Wounded Knee case of Dennis Banks and Russell Means is over, one wants to ask, now what does it all mean? And I'm prompted personally to respond, don't ask me. I was there, there in the midst of an incredibly long, sometimes exciting, sometimes boring, often confusing eight months.

But to Indian people, I think it's clear at least that the trial represented a vehicle for airing of complaints and acted as an attention-getting device for many years of outright neglect. And I think that seems to go even for Indians who don't consider Banks and Means their friends or even their spokesmen. People often expect more of those who are seen as revolutionaries than they do of themselves. History is funny, the confluence of people, and events, and then the changes which make symbols out of people. It's clear, though, that a Wounded Knee was bound to happen sometime, somewhere as even trial Judge Fred Nichol would seem to indicate.

FRED NICHOL: That Indian problem is something like the Black problem. Look at the historic decisions that the United States Supreme Court, for example, had to make on the Black situation before they finally brought some semblance of dignity to the Black man. I think the Black man, really when you come right down to it, the Black man has been accorded more justice in this country. And even with the discrimination that he obviously has, there's been less discrimination against the Black man as a result of what has happened since Martin Luther King started his movement.

There's been less discrimination now than there is against the Indians. Now, I will admit that I come from a state like South Dakota where you see more Indians. And I really think that in many ways, the Indians are worse off than the Black man.

KEVIN MCKIERNAN: So this may in fact, have been a very historic decision that you made September 16, 1974.

FRED NICHOL: Well, it may have been.

KEVIN MCKIERNAN: The words Wounded Knee are known today in Europe, Asia, Africa, South America, and all around the world. The words are known. Perhaps some of the details of what happened in that tiny village in South Dakota last year will be forgotten, but the symbol remains.

At least three Indians died during the 71-day siege of Wounded Knee. A dozen more, as well as two lawmen were wounded. Wounded Knee was not a candlelight vigil.

It was an open rebellion and it will probably not be the last. Perhaps it will be remembered as a time in the 20th century when a people made their bid for freedom, perhaps a turning point. Whether they make it or not remains to be seen.

When the victory party after the dismissal September 16 was held at the Saint Paul Holiday Inn, no longer was it premature. And perhaps what happened to one young woman there represents what's been gained so far, at least by some. I recall a heavy-set, reserved, usually somber Indian girl who went around through the hundreds of celebrators alternately laughing and crying for joy.

She said, I feel so good. I feel so happy. It's so good to be Indian. And maybe that's what it's all been about.

[RHYTHMIC MUSIC]