United States v. Banks, CR73-5034

• Citation: 383 F. Supp. 368
• Decision Date: 20 August 1974
• Docket Number: CR73-5035 and CR73-5063.,CR73-5062,No. CR73-5034,CR73-5034
• Parties: UNITED STATES of America, Plaintiff, v. Dennis BANKS, Defendant. UNITED STATES of America, Plaintiff, v. Russell MEANS, Defendant.
• Court: United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota

383 F. Supp. 368

UNITED STATES of America, Plaintiff, v. Dennis BANKS, Defendant.

UNITED STATES of America, Plaintiff, v. Russell MEANS, Defendant.

Nos. CR73-5034, CR73-5062, CR73-5035 and CR73-5063.

United States District Court, D. South Dakota, W. D.

August 20, 1974.

COPYRIGHT MATERIAL OMITTED

William F. Clayton, U. S. Dist. Atty., D. S. D., and R. D. Hurd and David R. Gienapp, Asst. U. S. Attys., Sioux Falls, S. D., and Earl Kaplan, Dept. of Justice, Washington, D. C., for plaintiff.

Mark Lane, St. Paul, Minn., Douglas Hall and Larry B. Leventhal, Minneapolis, Minn., for defendant Banks.

William M. Kunstler, New York City, and Kenneth E. Tilsen, St. Paul, Minn., for defendant Means.

MEMORANDUM DECISION

NICHOL, Chief Judge.

In this case arising from events which took place at Wounded Knee, South Dakota, during the 71 day period from February 27, 1973, to May 8, 1973, at the close of the government's case, the defendants Means and Banks have moved for judgment of acquittal as to all eight counts of indictments XX-XXXX-X and the two counts of indictments XX-XXXX-X. This trial is a consolidation of two of the Wounded Knee Occupation leadership cases. The two defendants, Means and Banks, were identically charged in the first two indictments, as follows: Count I, with burglary of the Wounded Knee Trading Post; Count II, with larceny of certain contents of the Trading Post; Count III, with assault on Joanne Pierce, a Special Agent of the Federal Bureau of Investigation; Count IV, with preparation and location of bunkers and trenches at Wounded Knee, which obstructed, impeded or interfered with law enforcement officers; Count V, with the placement of a road block, manned by persons armed with guns, on a road leading into Wounded Knee, which obstructed, impeded, or interfered with law enforcement officers; Count VI has previously been dismissed by this Court; Count VII, with possession of unregistered firearms (molotov cocktails); Count VIII, with theft of an automobile; Count IX, with a conspiracy to commit criminal acts including the previous substantive Counts. Subsequent to the return of the two indictments just summarized, two additional indictments, CR73-5062 and CR73-5063, charged Banks and Means respectively under Count I (hereinafter for convenience referred to as Count X) with assaulting Curtis Fitzgerald, a Special Agent of the Federal Bureau of Investigation; Count II (hereinafter for convenience referred to as Count XI) alleged an assault on Lloyd Grimm, United States Marshal for the District of Nebraska.

Briefs on motion for judgment of acquittal as to all ten counts were filed with this Court by the moving party and by the government. Oral argument on the motion was conducted on August 7, 1974. At the conclusion of the argument, the motion for judgment of acquittal was granted as to Counts I, VII and VIII. The motion was denied as to Counts II and IX. Judgment was reserved by this Court as to Counts II, IV, V, X and XI, pending an evidentiary hearing on the question of the alleged illegality of the government's law enforcement efforts at Wounded Knee during the occupation. That hearing commenced on August 7, 1974, and was completed on August 9, 1974. In addition to the evidence introduced by way of testimony and exhibit at that hearing, portions of the transcript from a trial conducted by Judge Warren Urbom in Lincoln, Nebraska, in connection with another case arising out of the Wounded Knee Occupation, were admitted in evidence by way of stipulation. At the conclusion of the evidentiary hearing, this Court granted the motion for judgment of acquittal as to Counts IV and V, and denied the motion as to Counts II, X and XI. The Court reserved the right to file a written opinion.

In the pages that follow, consideration will be directed first to certain contentions raised by the defendants in the motion for judgment of acquittal which relate to all of the Counts. Succeeding parts of this Memorandum Decision will deal with the specific Counts.

PART I

A. The Sioux Treaty of 1868

The defendants in their motion and brief assert that this Court lacks jurisdiction under the Sioux Treaty of 1868, 15 Stat. 635. This claim is applied to all of the Counts. The crux of the defendants' argument is based in the first instance on Article I of the Treaty, which provides that the Indians will, "upon proof made to the agent ...," deliver-up to the United States, Indians accused of violating the laws of the United States.

The Oglala Sioux Tribal Code, Chapter I, Section I, in essence provides that the Tribal Court "shall have jurisdiction over all offenses when committed by a member of the Tribe, and non-member Indians ...." Further, the defendants argue that Chapter I, Section 1.1, Part 1, of the Tribal Code establishes the Tribal Court as the "agent" referred to in Article I of the Treaty. The defense then asserts that as there is no record of proof having been made to the Tribal Court as to these defendants, the United States lacks jurisdiction.

This Court is unable to accept the analysis suggested by the defense. Congress has, since 1868, enacted statutes which have either amended or abrogated the terms of the Sioux Treaty. See, e. g., The Major Crimes Act, 18 U.S.C. Sec. 1153. That Congress has the power to so amend or abrogate the Treaties made with the Indians is established. Choate v. Trapp, 224 U.S. 665, 32 S.Ct. 565, 56 L.Ed. 941 (1912).

The Tribes have been regarded as dependent nations, and treaties with them have been looked upon not as contracts, but as public laws which could be abrogated at the will of the United States. Choate, supra, at 670-671, 32 S.Ct. at 567.

See also United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1868). The following language from United States v. Blackfeet Tribe, 364 F.Supp. 192 (D.Mont.1973), is instructive:

The defendants urge that the Blackfeet Tribe is sovereign and that the jurisdiction of the tribal court flows directly from that sovereignty. ... The blunt fact, however, is that an Indian tribe is sovereign to the extent that the United States permits it to be sovereign — neither more nor less. While for many years the United States recognized some elements of sovereignty in the Indian tribes and dealt with them by treaty, Congress by Act of March 3, 1871 (16 Stat. 566, 25 U.S.C. § 71) prohibited the further recognition of Indian tribes as independent nations. Thereafter the Indians and the Indian tribes were regulated by acts of Congress. The power of Congress to govern by statute rather than treaty has been sustained. Blackfeet, supra, at 194 (citations omitted).

It is clear to this Court that Congress intended, in enacting the Major Crimes Act, 18 U.S.C. Sec. 1153, for this Court to have jurisdiction of those Counts based on that statute. Those Counts based on statutes other than the Major Crimes Act have previously been the subject of a motion to dismiss on jurisdictional grounds. This Court in its Memorandum Decision decided at that time that jurisdiction existed, and accordingly denied the motion.

The motion for judgment of acquittal as to all Counts on the grounds of lack of jurisdiction under the Sioux Treaty of 1868 is denied.

B. Discriminatory Prosecution and Bad Faith Prosecution

The Court adheres to its formal ruling in United States v. Banks, 368 F.Supp. 1245 (D.S.D.1973). Evidence presented since the decision in Banks, supra, fails to persuade this Court that a reasonable doubt exists as to the prosecutor's purpose. The motion for judgment of acquittal as to all the Counts, on the grounds of discriminatory prosecution and bad faith prosecution is hereby denied.

PART II

COUNT IX — CONSPIRACY

Count IX charged the defendants with entering and engaging in a criminal conspiracy, in violation of 18 U.S.C. Sec. 371. The defendants, by their motion for judgment of acquittal and supporting brief and argument, have contended vigorously that the evidence as to Count IX is insufficient to justify submission of the Count to the jury. Their argument focuses primarily on the lack of any direct evidence of an agreement. It is of course elementary that for there to be a conspiracy, there must be an agreement among the coconspirators. The agreement need not be express or formal. United States v. Hutchinson, 488 F.2d 484 (8th Cir. 1973). It is equally elementary that the offense of criminal conspiracy requires the commission of at least one overt act, by one of the coconspirators, in furtherance of the conspiracy. United States v. Skillman, 442 F.2d 542 (8th Cir.), cert. den. 404 U.S. 833, 92 S.Ct. 82, 30 L.Ed.2d 63 (1971).

The defendants are perhaps correct when they state in their brief that there is no direct evidence of the existence of an agreement among the coconspirators. However, the law in this circuit is clear. No direct evidence need be produced to support the submission of a conspiracy charge to a jury. "The agreement ... may be established by circumstantial evidence." Hutchinson, supra, 488 F.2d at 490. In Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the United States Supreme Court stated that, "Participation in a criminal conspiracy need not be proved by direct evidence; a common purpose and plan may be inferred from a `development and collocation of circumstances.'" Glasser, supra, at 80, 62 S.Ct. at 469.

The record in this case is replete with testimony from which the existence of an agreement may be inferred. The jury could well find beyond a reasonable doubt that the events surrounding the occupation of Wounded Knee constituted a "development and collocation of circumstances" evidencing the existence of a criminal conspiracy. This Court finds that there is sufficient evidence to submit Count IX to the jury, and therefore the motion for judgment of acquittal as to Count IX is denied.

PART III

COUNT I — BURGLARY OF THE TRADING POST

COUNT II — LARCENY OF THE TRADING POST

Count I...