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BOB POTTER: The cases of nine people convicted for the role they played during the Wounded Knee occupation came before the Eighth District Court of Appeals today. The Court is sitting in Saint Paul this week. Represented by eight attorneys, the cases were heard in a consolidated appeal. Reporter Martin Bunzl was on hand in the federal courthouse and has joined us now in the studio. Martin, what was the basis for the appeal in these cases?

MARTIN BUNZL: Bob, there were two major lines of attack taken in the appeal of these cases. Last year, Judge Warren K. Urbom took testimony on whether or not the United States had jurisdiction to try these cases. The jurisdictional issue was raised in a special two-week hearing held in Lincoln, Nebraska. The defense argued that the 1868 treaty guaranteed the sovereign rights of the Lakota people and that, pursuant to the provisions of that treaty, the United States did not have the right to try these cases because they fell within the purview of the tribal court system.

The prosecution argued that the United States had jurisdiction in the cases, and they argued that it did so for two reasons. First, the United States had already assumed by mutual agreement jurisdiction before the signing of the 1868 Fort Laramie treaty. And second, that the Congress abrogated provisions of the 1868 treaty by later acts. In dismissing the defense motion, Judge Urbom sided with the prosecution on these two lines of reasoning.

In court today, Attorneys John Thorne and Vine Deloria argued that Judge Urbom had ruled incorrectly. They claimed that the United States never assumed jurisdiction before 1868, and they challenged Prosecutor Whitey Nelson to show where and how the United States had done so. Quote, "It's difficult to say," he told the Court. Following 19th century Supreme Court rulings that might makes right, he said, quote, "Perhaps it's not terribly moral, but the fact is that South Dakota is part of the United States, and it is useless to speculate if it is good or bad," close quote.

Pushed by the Court, Nelson cited a federal general statute of 1817 in which the government unilaterally assumed jurisdiction in what it called Indian Country. But the Court pointed to a problem with this line of reasoning. If the government had adopted jurisdiction on the basis of the 1817 general statute, and if it had done so on the basis of mutual agreements with the Indians, then following accepted principle, such an agreement must be interpreted as the Indians understood them.

BOB POTTER: Why does it make any difference whether the Indians understood it or not?

MARTIN BUNZL: Well, what hangs on this is that even if you make the claim that this general statute was the outcome of some tacit agreement, you have to show that the Indians understood it in the way that is being claimed. Ignoring the question of whether the statute was the product of some unstated agreement or whether it was a unilateral action on the part of the United states, the question is, did the tribes across the country know what was understood by, quote, Indian Country? As Vine Deloria put it outside the court, why should the Sioux, 2,000 miles from Washington, have assumed that this statute applied to them?

BOB POTTER: Well, how about the other claim of the government, the claim that later acts of Congress abrogated provisions of the treaty?

MARTIN BUNZL: Well, Deloria and Thorne took the position that the government does not have the power to abrogate provisions of a treaty unilaterally. While European nations might be able to, with the traditions of international law that govern those nations, such a course of action was quite alien to the Sioux, they argued. They argued that promises cannot be broken in the Sioux tradition.

At this point, the Court attempted to narrow the issue down. Let's suppose the United States does have the power to abrogate provisions of treaties. Under what circumstances can it do so? the Court asked Vine Deloria. Can the argument be made that the Congress must specifically cite the treaty that it is abrogating? the Court asked.

Deloria proffered the view that, indeed, it would have to do so and that it had not done so in laws enacted after the signing of the 1868 treaty. Well, it may well be that it didn't, argued Prosecutor Nelson, but the intent of later laws was clearly to limit the sovereign power of the Indian tribes. That may well be, agreed the Court. But the question is, is that enough? Given that we interpret the laws as the Indians understood them, don't they have to explicitly state that they are abrogating former treaties?

BOB POTTER: It doesn't sound like the Court was as impartial as one thinks of courts. Sounds like they're leaning rather heavily in favor of the defendants.

MARTIN BUNZL: Well, I think appearances can be misleading. As the appellants, the defendants were given every opportunity to state their case. And the Court was very willing to probe different avenues of attack in an atmosphere that was strikingly relaxed when compared to a trial court. But remember, they were just collecting arguments here. Now they'll go to consider them carefully, and it will be two and a half months before they hand down the decision.

BOB POTTER: The treaty was one line of attack used by the defense. What about the other one?

MARTIN BUNZL: Well, the other involved Doug Durham. Doug Durham was a paid FBI informer who was assigned to infiltrate AIM. The defense contended today that he had infiltrated the camps of the persons convicted in these cases and that the conviction should be overturned on the basis of government misconduct.

There were two issues here. By everyone's admission, Durham had been close to the defense here in Saint Paul. He was the chief of security for AIM, helped run the defense office, and made frequent trips to Attorney Ken Tilson's office.

In the original case, Judge Urbom ruled that there was no evidence that Durham had transmitted defense strategy to the government. Even though the trials of these people took place in Lincoln, and Durham was here in Saint Paul, the defense argued that Durham invaded their camp by being in Tilson's office because Tilson's office was the center of a coordinated defense for all of the Wounded Knee cases. Files were kept there, and strategy was discussed there. Furthermore, the defense alleged direct interference by Durham in these cases.

During the trials, prosecutors and defense began negotiating dismissals of many of the Wounded Knee cases in exchange for nolo contendere pleas from a small number of the defendants. Those negotiations failed, and no one knew why. Both defense and prosecutors denied ending them.

Now, the defense claims that the FBI intervened to end the negotiations because it was angry at the prospects of the cases being dropped. This latter fact is documented in a letter from the head of the FBI to the attorney general. Today, the defense claimed that Doug Durham engineered that intervention by counseling defendants to refuse to go along with the bargain.

BOB POTTER: Rather weighty issues, are they not? Is the defense optimistic about its chances with the Appeals Court?

MARTIN BUNZL: Well, Bob, seasoned attorneys who've worked on many of the Wounded Knee cases doubt that the Court will act on the treaty issue. They think that they are more likely to duck it and that it will go up to the Supreme Court to decide if it wants to hear the case. I think, though, the defense would like the Court to rule either way on the issue rather than ducking it.

As Vine Deloria told the Court, for too many years, the government has treated Indian tribes as sovereign some of the time and as wards of the state at other times. Right now, he would like an unambiguous statement, an unambiguous ruling on what the relationship is. And this has direct implications for the situation on Pine Ridge. If they are sovereign, then the FBI ought to get off the reservation, so Vine Deloria would argue. But if they are wards of the government, then he would argue, the government ought to intervene and make a serious effort to end corruption on that reservation.

BOB POTTER: And how about the Doug Durham issue? What about the Appeals Court ruling on that?

MARTIN BUNZL: Well, I think the attorneys are a little more optimistic about that. That raises much more traditional issues, issues that come up in many other kinds of cases. And the Court was indeed very worried about the use of informers in that case. Incidentally, we were told after the press conference that Doug Durham is now on a speaking tour of Nebraska and South Dakota, being sponsored by the John Birch Society.

BOB POTTER: And a ruling in the case would be expected when?

MARTIN BUNZL: In about two and a half months.

BOB POTTER: Thank you, Martin Bunzl.