Vol. 7 No. 11 (November 1997) pp. 531-534.

GHOST DANCING THE LAW: THE WOUNDED KNEE TRIALS
by John William Sayer. Cambridge: Harvard University Press, 1997. 310 pp. Cloth $29.95. ISBN 0-674-35433-8

Reviewed by David E. Wilkins, Department of Political Science & American Indian Studies, The University of Arizona

Across the globe--from the tribal and First nations of the Americas, the Aborigines of Australia, the Maori of New Zealand, the Siam of Norway, Sweden, and Finland, the Ainu of Japan, etc.,--indigenous peoples, constituting what has come to be called the Fourth World, are making their voices heard in domestic (nation-state) and international (UN) forums. They are demanding in a respectful manner that their historically deprived rights to inherent sovereignty, cultural autonomy, political self-determination, and economic self-sufficiency finally be accorded a recognized measure of respect.

Indigenous activism and resistance to colonizing European states and their derivative settler-states has been ongoing since their homelands were first invaded half a millennium ago. However, beginning in the 1960s, an ad hoc and unpredicted confluence of historic events (e.g., civil rights concerns, new social consciousness), key indigenous and non-indigenous personalities, environmental concerns, good timing, etc., fueled a surge of aboriginal activism that enabled indigenous nations to, in some cases, begin to (re)gain access to lands, (re)claim some measure of ownership of natural resources, (re)assert their distinctive treaty rights, and partake of other benefits and privileges long denied to them by their host states.

John Sayer's book powerfully articulates this unfolding indigenous activism in the United States by examining in significant detail the political/legal history of the trials of the key Indian players, particularly the conspiracy trial of American Indian Movement (AIM) leaders Dennis Banks and Russell Means, who were involved in the 1973 takeover of the small hamlet of Wounded Knee, on the Pine Ridge Reservation of South Dakota, home of the Oglala Lakota Nation. This study contains much more than crisp legal history, however.

It is an outstanding multi-disciplinary and thoroughly researched account which clearly explains the intersection and overlapping of the important forces that shaped events leading to the Wounded Knee trials, the trial deliberations, and the complicated developments in the wake of the trials. The forces emphasized by Sayer include

the dominance of the western legal paradigm in the hands of federal lawmakers in constructing identities, cultures, and histories;
the media's portrayal/manipulation of the ambivalent images Americans have of indigenous peoples ("bronzed" and "noble" peoples or "masculine" and "militant" radicals);
his efforts "to confront the dual question of what constitutes history and what makes it relevant to the understanding and lives of those who did not live it;"
the genesis, evolution, and slow asphyxiation of social movements deemed to radical by the federal government--movements also focused upon by the initial and manipulative glare but gradual loss of attention by the media; and finally
the veracity of what George P. Castile has termed "reflective policy" (Castile 1992). That is, changes in federal Indian policy are sometimes "simply the reflections of larger events" (p. 171), which, in the case of the Wounded Knee trials, would include the anti-Vietnam protests, the Watergate fiasco, and the efforts by various federal agencies to discredit any movement deemed a threat to social and political stability.

In fact, the Wounded Knee Legal Defense/Offense Committee (WKLDOC) had subpoenaed the White House for tapes involving conversations about Wounded Knee. The White House refused to comply, and there was some speculation, after President Nixon resigned on August 8, 1974 "about the possibility of calling the ex-President to the stand" (p. 147).

Sayer methodically mined a plethora of primary and secondary data to craft his captivating account (I caught myself laughing at loud on several occasions when reading some of the trial discourse between the lawyers and Judge Nichols; but I also openly grimaced at times upon reading about some of the government's misconduct in acquiring evidence against the Indian defendants). Sayer used trial transcripts, defense committee records, legal motions and briefs, jury studies, newspaper and magazine stories, information drawn from the FBI's files regarding the American Indian Movement and Wounded Knee occupation, and interviews with thirty of the trial participants.

The interviews (of most of the major Indian and non-Indian players) were particularly effective because they enabled Sayer to draw a more comprehensive and nuanced picture of the vibrancy of the trial's proceedings. While Sayer interviewed virtually all the major players on both sides, notably absent from the list of individuals he interviewed, without explanation, was the name of Russell Means, one of the two co-defendants.

One also gets an intense sense of the emotional dynamics involved in not only the trial, but more importantly, a good sense of the larger and ongoing struggle of what it has meant to live as an Indian in the United States. This was particularly evident regarding the contrary views of the Indian defendants and the federal prosecutors on the subject of Indian treaty rights.

For Indians, the treaties form the historical and contemporary basis of their distinctive political relationship with the U.S., despite the fact that the federal government has only spasmodically enforced the provisions of the treaties. For the U.S., the prosecutors attempted to minimize the importance of the treaties. Their goal was to keep the judge's and the media's focus on the criminal trial alone.

Another of Sayer's strengths was his emphasis on the complexities of history. The historical record, he noted, was contradictory and conflicting.

The narrative that weaves these conflicting stories together is not intended to provide a single truth, or the definitive history of the trials. What I hope to do is amplify voices from the past and identify the structures and procedures that altered or silenced those voices, both as the events unfolded and over the course of time (p. 8). The interested reader will come away from this study with a good sense of why various agencies of the federal government were almost maniacally intent--even to the extent of violating their own laws--on prosecuting the leadership of the AIM for the Wounded Knee occupation. The Indian activists at Wounded Knee and the progeny of pride and "Red Power" generated as a result of this event was viewed by the federal government as posing an unnerving and frontal challenge to the United States cultural, legal, and political hegemony by showing that indigenous peoples still exercised a core of inherent sovereignty that had not been homogenized into the American cultural tapestry as a result of the federal government's assimilative campaign.

As powerful and moving as the study is, it could have been strengthened, ironically, with some additional history of Indian policy in general and Lakota history in particular. I say "ironically" because one of Sayer's main contentions is that "the struggle for history is the struggle for political power, for documentation of the silenced voices" (p. 230). Yet in establishing the historical context for the Indian social and political eruptions of the 1960s and early 1970s, Sayer could have paid more attention to the key federal Indian policies of the late 1800s and 1900s, and particularly to the historical narrative in the wake of the 1868 Sioux treaty. His discussion of Sioux history from 1868 through the 1880s--especially the illegality of the federal government's action in not enforcing the provisions of the treaty--lacks the critical analysis of his contemporary legal research.

As part of his uncritical read of Sioux history he stated on p. 17 that "the commission sent to Fort Laramie in 1868 [to negotiate the treaty with the Sioux] was yet another attempt to solve the problem of the Sioux." But as his own introduction and conclusion brought out, it was not the Sioux who were the "problem." Rather it was the federal government, the railroads, and Anglo settlers who were the "problem" since they were the one's invading the lands of the Sioux in direct violation of the 1868 treaty.

Aside from these critical remarks, I noted a few other factual, grammatical, or stylistic mistakes. For example, he states on p. 97 that the National Congress of American Indians (NCAI) recommended that the Bureau of Indian Affairs (BIA) be investigated "as far back as 1936." The NCAI, however, was not officially formed until 1944. In Chapter 5 he says that the Major Crimes Act gave the U.S. jurisdiction over 13 specific offenses committed on reservations. Actually, this Act, first enacted in 1885, gave the federal government jurisdiction over only 7 crimes. Today, the number has increased to 16 offenses.

Finally, as solid as the book is, it could have been reinforced with a few choice maps and appropriate photographs. The book cover, for example, a montage of a map of the Pine Ridge Reservation, a contemporary photo of a sign advertising the site of the Wounded Knee massacre, and a picture of a portion of the 1868 treaty, is evidence of some of the graphic material that would have made an already compelling book that much more difficult to put down. Since the media occupied such a central role in the book, both as an influential actor and as a source of information, it is a slight disappointment that Sayer chose not to use any photos in the body of the text.

These quibbles aside, GHOST DANCING THE LAW is a richly textured and subtle account of one of the most important criminal trials in the later part of the twentieth century. It explains in lively prose how resourceful and resistant indigenous peoples are (for example, although various Indian "images" were manipulated by the media, the Indian activists engaged in their share of manipulation of the media) and how prominent a role the media plays in public perceptions of indigenous peoples. It also describes how during the turbulent 1960s and early 1970s the U.S. government went to extraordinary, extraconstitutional lengths in an effort to quell what it perceived as direct threats to the hegemony of the American state, resorting to illegal use of the military in a civil disorder and repeated negligence and misconduct--.

I strongly recommend the book.

REFERENCE

Castile, George Pierre. 1992. "Indian Sign: Hegemony and Symbolism in Federal Indian Policy." In STATE & RESERVATION: NEW PERSPECTIVES ON FEDERAL INDIAN POLICY, eds. George Pierre Castile and Robert L. Bee.