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KEVIN MCKIERNAN: Jury selection is moving slowly in the Wounded Knee trials of Dennis Banks and Russell Means here at the St. Paul federal courthouse. Banks and Means, leaders of the American Indian Movement are charged with 10 felony indictments stemming from the spring 1973 takeover of the small village of Wounded Knee in Western South Dakota. They face a possible 80 years for their role in that 71-day occupation.

Several jurors have been excused from duty for reasons of the potential hardship involved in what well may be a three to four-month jury duty in this trial. One of these was an expectant mother. Several other jurors have been dismissed for cause, that is, some reason which would prevent their rendering a fair verdict against the Indian defendants.

One of these was a police chief with 14 years in law enforcement. The chief had indicated that courtroom testimony of US Marshals from Wounded Knee would carry more weight with him than testimony of, for example, defense witnesses.

Federal judge Fred Nichol is closely examining prospective jurors with respect to their attitudes toward American Indians, toward American Indian history, and toward the sometimes stereotyping of the Indian image. Thus far, seven prospective jurors have been passed for cause, that is, at this point, they are unchallenged for prejudice.

When that number reaches 38, prosecution and defense lawyers will exercise a combined total of 26 peremptory challenges to reduce the panel to 12 jurors. It is anticipated now that this process could take as long as 10 more trial days.

So far, the seven prospective jurors are all Caucasian. And this has prompted lawyers for the accused Indians to threaten a motion to invalidate the jury selection procedure, unless the coming days produce some minority representation on the jury panel.

In related developments in this, the first of the Wounded Knee trials, United States Attorney William Clayton has issued a press statement responding to the January 9 dismissal motion brought by the defense. That motion filed in federal court charged the government with, quote, "bad faith prosecution," unquote, and detailed complaints of police wiretapping, informant infiltration, and harassment of Wounded Knee legal workers.

In addition, it charged the government with complicity last October in the shotgun death of Pedro Bissonette, one of the Indian leaders who was to have stood trial here in St Paul. The motion calls for dismissal of Means and Banks and dismissal of the 130 other cases related to Wounded Knee.

Mr. Clayton said that he will reserve a full response to the motion until a later date but emphasized at this time that the government's motive in the Wounded Knee cases was not to discriminate against any specific individuals but a motive prompted by the desire to protect society from dangerous and illegal activities.

In another response, Chief Trial Judge Fred Nichol said that, quote, "the decision to prosecute these defendants was undertaken by the United States Attorney's Office in good faith for the purpose of attempting to bring to justice those who have violated the law," unquote.

In still another development, the White House has issued a response to the bill of particulars submitted at last fall regarding the 1868 Sioux Treaty. It is this treaty granting the Sioux, the western half of South Dakota, including the land where Wounded Knee is located, that the defense of Dennis Banks and Russell Means is based.

In a letter to Chief Fools Crow, one of the traditional chiefs and headmen of the Oglala Sioux, Leonard Garment, special assistant to President Nixon, stated the following. "You are also aware, of course," he said, "that your communication to the president is not the official position of the Oglala Sioux. That can come only from the elected tribal council and tribal officers of the Oglala Sioux.

We respect your right to differ with the tribal council and to send us your views. In fact, the five White House representatives who spent two days with you and your colleagues last May came especially to receive those views and to hear you and your associates who spoke to them.

But as in any Democratic society where there is contention and differing opinions, the proper court of last resort is the ballot box. Fortunately, the Oglala Sioux people are about to have the opportunity to express their views and to give their governing mandate to candidates of their choice shortly in an election on the Pine Ridge Reservation," unquote.

With respect to documents enclosed with Garment's letter, the presidential assistant stated, quote, "what these answers say, in sum, is that the 1868 treaty is still a valid legal document, with its obligations still in force, except insofar as any of them have been changed by Congress by the parties satisfied by litigation or expired. And that has happened in several specified instances," unquote.

Garment's White House letter, dated January 8, 1974, was attached to these detailed responses and to specific questions posed by Chief Fools Crow. And while the White House stated that the 1868 treaty is still valid, one of the attached responses made it clear that the United States has, quote, "general jurisdiction over Indian tribes," unquote. And this would include the Sioux. According to a 1941 case, Sioux tribe versus the United States, a case cited by the White House, the government has, quote, "complied both in fact and effect with the 1868 treaty."

And as an example of this compliance, Garment contends that the dispatching of federal marshals to Wounded Knee and to the Pine Ridge Reservation last spring was not, as Fools Crow and the American Indian Movement argue, a violation of the 1868 treaty but rather a performance of the pledge to, quote, "preserve the peace," unquote, as promised by agents of the United States when the treaty was signed. This is Kevin McKiernan in St. Paul.