Chapter 8 – Informers, Infiltrators, Agents Provocateurs (pp. 223-233)
[NOTE: These are the last several paragraphs of Chapter 8, summing up the coverage of FBI “informers, infiltrators, and agents provocateurs,” of whom Douglass Durham was one of the most damaging and effective. Durham gained Dennis Bank’s friendship and trust, became his personal bodyguard, AIM’s security director, became privy to the innermost workings of the AIM organization, and was designated coordinator of Banks and Russell Means’ defense committee in the “Wounded Knee Leadership Trial.” With access to AIM (American Indian Movement) and WKLDOC (Wounded Knee Legal Defense/Offense Committee) bank accounts, he is estimated to have stolen as much as $100,000 from these accounts. He is also implicated in turning members against other members through bad-jacketing, spreading of rumors, and, directly or indirectly, in the murder of various AIM activists.]
One Aim member concludes that:
“I can’t think of any one person who did more damage to AIM than Doug Durham. The kind of pressure the feds were putting on the leadership after Wounded Knee was already causing problems. Some people were beginning to unwrap, Russ and Dennis were continuously tied up in trials, so there wasn’t a lot they could do about it. Durham just absolutely destroyed the trust inside the organization when he turned out to be a pig…especially when it turned out that there were others as well. Nobody could be sure how far it went…This wasn’t a joke. The feds were trying to put people in prison on totally bogus charges, remember. And this was for heavy time, like 90 years, or 150 years or more than 200 years in a couple of cases. And people were getting killed right and left. So, nobody could afford to be real trusting, if you catch my drift. They were really trying to do us in…The game had become as serious as it gets. The thing with Harvey Major proved that, and the thing with Anna Mae [Aquash], no doubt. And then there was Skyhorse and Mohawk, and the thing with Jancita Eagle Deer, and it just kept comin’ down. All of that was Doug Durham. And that’s not even to mention all the lies and misrepresentations he put out as an ‘official AIM spokesman,’ or the speeches he made for the Birchers, or that bullshit he said to Congress, which got AIM labeled as a ‘terrorist organization.’”
“You could say that a lot of the spirit went out of the movement around what Durham did. Oh, it wasn’t just him. The FBI was doin’ a lot of other stuff which contributed too. And AIM made its own mistakes. But Dennis [Banks] was never the same after he got taken in. And a whole lot of that early feeling, the openness of AIM disappeared. It got to be small groups who already knew each other real well, who couldn’t give up the resistance, but who were thinking more in terms of survival than anything else. That’s what AIM was by 1975. And that’s what happened at Oglala in the summer of ’75 [see Chapter 9]; some feds finally ran into one of these groups which they’d forced into being, and they finally got back what they’d been puttin’ out. They took it on the chin for what Doug Durham and the whole damned FBI had been doing to people.”
– An AIM member
Finally, an elder of the Colorado AIM chapter, Vivian Locust (an Oglala), frames the matter at another, perhaps more important level:
“That Durham, he showed us what we were really dealing with. We was trying to act like human beings, reaching out to other human beings, the way Indians always do. But that Durham, he didn’t act like no human being. And I’m not sure what to say he did act like. No conscience. No guilt. No remorse. No human emotion at all. I’d say he acted like a snake, but that’s not fair to snakes. Snakes aren’t that cold. He was more like some kind of machine, a robot…and then we figured out there was a lot more just like him: that [SA David] Price was one, and that [SA William] Wood was another. And there was that [SA Norman] Zigrossi, and [SAC Joseph] Trimbach, and on and on. None of ’em acted human at all. We Indians don’t have any way to cope with people like this.”
– Vivian Locust, an Oglala elder of the Colorado AIM chapter
Chapter 12 – Other Political Abuses of the Judicial System (pp. 343ff)
The Case of Dennis Banks, et. al.
The central prominence accorded by the FBI to Dennis Banks as a founder and perhaps the pivotal leader of AIM in the mid-1970s leaves little question as to why the Bureau might have targeted him for especially tenacious pursuit. According to Ken Baka, “The [Banks] case has already been one of the longest-running in U.S. history.” It has garnered the dubious distinction of becoming the most sustained attempt at a federal prosecution in the history of American jurisprudence. This longevity does much to support the observation, offered by Banks’ Brooklyn, N.Y. attorney, Ken Stern, that the matter is “a continuation of a campaign of gross harassment against American Indian Movement activists” begun more than a decade ago. To summarize:
“On July 26, [1975], Banks had been convicted in Custer [S.D.] on charges based on the courthouse riots of 1973 [see Chapter 5]; Banks skipped bail and went underground, advising those who had forfeited his bond that he feared for his life while in state custody…[He] gave as a reason [then South Dakota Attorney General, later Governor] William Janklow’s statement about ‘putting a bullet through the heads of AIM leaders.’”
From South Dakota, Banks went to Colorado where he was hidden by local AIM members and Chicano leader Corky Gonzalez’s Crusade for Justice organization for a considerable period of time.
[ENDNOTE #77: AIM member Nilak Butler is quoted in (Matthiessen, Peter, In the Spirit of Crazy Horse, Viking Press, New York, 1984), pp. 224-5: “In Colorado, we had the support of the Chicano community, which provided safe housing all over the state,” in addition to the similar support provided by the area AIM chapter. She and her husband Dino, Bob Robideau, Mike Anderson, Norman Brown, Anna Mae Aquash, Carter Camp, Leonard Peltier and Dennis Banks are among those who benefitted from this alliance before “some of [the] Chicano volunteers got killed in a big fight…among themselves.” After that, the AIM fugitives scattered.]
[NOTE: For more on the support provided by Colorado’s Chicano community to the American Indian Movement, and for a detailed discussion of the events leading to Colorado Chicano volunteers getting killed, see Ernesto B. Vigil, The Crusade for Justice: Chicano Militancy and the Government’s War on Dissent, University of Wisconsin Press, 1999. See my “Crusade for Justice” page for excerpts.]
Then on February 14, 1976:
“…a state police officer stopped a station wagon and a motor home [belonging to actor Marlon Brando, a highly vocal AIM supporter] near…Ontario, Oregon, a town of 8,000 people located on the Idaho-Oregon border…two men fled the vehicles, police said. One ran into a field and fired at the officer, said police…The two men were thought to be Dennis Banks and Leonard Peltier. Both men were wanted: Banks in South Dakota for sentencing for the Feb. 6, 1973 melee at the Custer County Courthouse, and Peltier in Milwaukee, Wis., in connection with a murder [sic; Peltier was wanted in Milwaukee on a charge of attempted murder. The charge was proved to have been fabricated. Peltier was later acquitted after the former girlfriend of the alleged victim, an off-duty Milwaukee policeman name Hlavinka, testified that around the time of the incident he had shown her a photograph of Peltier and boasted his intention of ‘catching a big one for the FBI’]…Police arrested Banks’ wife Kamook, then known as Darlene Nichols; Kenneth Loud Hawk, then of Pine Ridge, now of Bozeman, Mont.; Russell Redner [Shoshone], then of Eureka, Calif. and now of Oglala; and the late Anna Mae Aquash, of Nova Scotia, whose body was found in 1976…Federal authorities said they found ammunition and seven cases of dynamite in the vehicles.”
[ENDNOTE #78: Baka, (Ken, "Oregon Banks case frustrates prosecutor," in the Rapid City Journal, July 24, 1986); the information on the Milwaukee attempted murder charge against Peltier which — in addition to the Myrtle Poor Bear affidavit on the RESMURS matter — was used to obtain his fraudulent extradition from Canada, derives from Mathiessen, (Peter, In the Spirit of Crazy Horse, Viking Press, New York, 1984), pp. 56-58.]
Those arrested were charged with interstate transportation of explosives and illegal possession of firearms. “Kamook Banks had [originally] been charged in the Custer Courthouse Battle in 1973, but charges were dropped [in April 1976]…Her bail in Oregon had first been $100,000, then $50,000, then $20,000 and on February 23 [1976], she was released in third-party custody.” Redner and Loud Hawk had also been
“…charged by the State of Oregon with ‘possession of a dangerous weapon with intent to use.’ The evidence against Russ [Redner] was a Buck knife of the folding variety found in a leather sheath on his belt. Kenny [Loud Hawk] also carried a Buck knife of the folding variety in his pocket, but was not charged for it. Instead, he was charged for a handgun found under the rear seat of the station wagon they were traveling in…Nita Bellows, the Ontario, Oregon, Justice of the Peace, set bail at $50,000 each [the usual Oregon bail in a Class C felony matter being $1,500]…Bill Williams, PR man for the FBI’s Portland [Ore.] office [had] ‘no comment’ on how Bellows arrived at such a figure…Redner and Loud Hawk were held in isolation in Vale [Oregon, the jail from which Anna Mae Aquash was removed back to South Dakota by the FBI, and subsequently murdered; see Chapter 11]…the prisoners were taken to Portland via Boise to face federal charges…Riding in the car with Ken Loud Hawk was an FBI agent from Rapid City, South Dakota [thought to have been either SA David Price or SA J. Gary Adams]. He thought Ken might know something about the two FBI agents [Coler and Williams] killed on the Pine Ridge Reservation…‘If you tell me who did it,’ he said, ‘we could make a deal. Transportation of firearms is a very serious charge.’”
As all this was going on, the FBI “identified” Dennis Banks as having been one of the two men who had reportedly fled the scene, firing on police as they went. The evidence was exceedingly flimsy:
“…the government claims Banks was there because Kamook was there, because Banks’ briefcase was in the motorhome and because Banks’ fingerprints were found on a pickle jar [in the vehicle]…Banks [in hiding, was subsequently] arrested in San Francisco. In April, 1976, Banks [and Kamook, Redner and Loudhawk] appeared in a Portland court and pleaded innocent of five counts of illegal possession and transportation of destructive devices and firearms.”
At the trial, the Bureau contended that the dynamite allegedly seized in the Brando motor home had been destroyed; the prosecution attempted to submit polaroid photos of small puffs of smoke in an open field which, it claimed, were evidence of the dynamite being detonated by police demolition experts. The arms undergirding the government’s various weapons charges had also been “mislaid.” Under such circumstances:
“It took the U.S. District Judge [Belloni] exactly eighteen minutes and 55 seconds on May 12, [1976] to dismiss firearms and explosives charges against [the] four American Indian Movement activists…At the trial, Judge Belloni asked the U.S. to proceed with the prosecution. The prosecutor said he wasn’t ready. The defense moved for dismissal, and the motion was granted.”
However, “U.S. Attorney Sid Lezak, obviously feeling the pressure of this decisive defeat, vowed he would appeal Belloni’s decision to the Ninth Circuit Court of Appeals. Loud Hawk and Redner still face[d] state charges [which were later dropped].” Dennis Banks was returned to California, where a series of hearings were being held concerning a move by the State of South Dakota to extradite him (a federal “fugitive from justice” warrant had been issued) in connection with his conviction in the Custer Courthouse case.
Governor Jerry Brown of California intervened in the judicial proceedings to announce that he would sign no order forcing Banks to return for sentencing and imprisonment, due to William Janklow’s several public death threats against the AIM leader. Brown was undoubtedly aided in arriving at this position by receipt of a petition signed by some 150,000 of his constituents urging him to block extradition on this basis, and a second petition with “another half-million signatures from around the U.S.” South Dakota Attorney General Janklow, trapped by his own inflammatory rhetoric, was reduced to fuming that Brown’s decision was “absolutely absurd” and evidence of “preferential treatment” of Banks. Janklow, elected Governor of South Dakota in 1978, “countered” Brown’s all-but-unprecedented granting of political asylum to Banks by an even “more” novel expedient. In 1981, he ordered that parole of South Dakota’s more prominent felons be conditioned upon their “deportation” to California. “If Jerry likes our felons,” the South Dakota Governor said, “he can have them all.”
Banks settled in California to engage in such dangerous pursuits as serving as chancellor of D-Q University, an Indian-run institution established on a former military site near San Francisco in the wake of the Alcatraz occupation in the early ’70s (see Chapter 4), and which had drawn heavily on AIM principles in its structure and curriculum. He also remained a solid activist, speaking and fundraising on tours of the state with celebrities such as Cree singer, Buffy Sainte-Marie, working on AIM’s “Longest Walk” in 1978, [ENDNOTE #90: The Longest Walk was undertaken during the spring of 1978, beginning in San Francisco with a group of about 150 marchers setting out to march all the way across the U.S., ending up in Washington, D.C. All along the way, speaking engagements were scheduled at which the walk’s purpose — to dramatize American Indian grievances — would be explained. Additional marchers were recruited at many of these speeches and rallies. Thus, by the time the marchers arrived at the nation’s capital in late October (having covered a nearly 3,000 mile route) the ranks had swelled to about 500. The Longest Walk received considerable favorable publicity and might be considered one of AIM’s more successful public information efforts of the late 1970’s. For further information see the documentary film, The Longest Walk, American Indian Information Society, Bismarck, North Dakota, 1979.] and organizing a tribunal to consider evidence of U.S. human rights violations against indigenous populations — Alaskan and Hawaiian natives as well as American Indians — during September of 1982. The publicity attendant to all of this made him a less than welcome guest to California conservatives. When Republican gubernatorial candidate George Deukmejian compaigned during 1982, one of his positions — loudly voiced — was a promise to “return Dennis Banks to justice in South Dakota.”
With Deukmejian’s election in November of 1982, Banks immediately went underground, surfacing just after the first of the year at the tiny Onondaga Reservation in upstate New York, invited by and under the sovereign protection of the traditional Onondaga chiefs. The latter promised to offer active resistance to any effort on the part of New York state or federal police to forcibly remove Banks from their sanctuary, and a period of negotiation ensued. After approximately a year and one half, acceptable assurances concerning his safety were obtained from Janklow’s office and:
“In September 1984, Dennis Banks left New York to surrender in South Dakota, trying to put behind him the Custer riot and assault conviction although many regarded the trial as having involved fraud by the prosecution. He was sentenced by the South Dakota court to two concurrent sentences of three years. He…served 14 months in prison [mostly at the South Dakota State Penitentiary in Sioux Falls].”
Prior to his surrender, Banks’ conviction had been appealed to the South Dakota Supreme Court, which upheld it on May 2, 1986, and Banks declined to pursue the matter to the U.S. Supreme Court (largely on the basis of that estimable body’s sterling performance on the Peltier matter; see Chapter 11). His parole ended in January of 1987, by which time he had announced his “retirement” as an AIM leader, and had settled into his wife’s home community of Oglala, where he busied himself trying to establish an employment program and putting on a weekly county music program for the local (AIM-initiated) FM radio station, KILI, near Porcupine. [ENDNOTE #95: Banks headquartered his effort in the Loneman School, in Oglala. Although several companies were involved, he seems to have been primarily concerned with attracting an electronic components assembly contract from the Honeywell Corporation in Minneapolis. Interestingly, Banks contends — and Honeywell has done nothing to deny it — that he was employed by Honeywell as a “community relations specialist” during the period when he helped found AIM in Minneapolis (1968), and that he was carried on the payroll through mid-1973. This is to say, in effect, that the Honeywell Corporation paid a salary to a major AIM leader during the time he engaged in some of his most “radical” activities (e.g. The Trail of Broken Treaties, the Custer Courthouse confrontation, and the Siege of Wounded Knee). Such a circumstance does much to corroborate Banks’ contention, consistently voiced, that — contrary to the “new Che Guevara” image manufactured for him by Douglass Durham — his own agenda was always essentially liberal, to see existing laws covering American Indian rights actually enforced. “We in AIM were never perfect,” says Banks, “but the whole idea of us pursuing violent tactics, or attempting to bring about some sort of violent revolution is completely false. The violence in which AIM as an organization was involved was entirely imposed by the federal government, by the FBI and other agencies, because of the federal government’s absolute refusal to abide by its own laws.” Russell Means, among others, has publicly agreed: “One of the most important things AIM has always tried to do is to help the United States government live up to its own constitution, and its own treaty obligations, which it has always refused to do, and still refuses to do. I find it to be the ultimate irony that we Indians have been getting killed for upholding the U.S. Constitution, by the very government which is supposedly based on it.”]
For much of the period during which all this was going on, little happened with the federal weapons and explosives case in Oregon. Then, in March 1980, the Ninth Circuit Court of Appeals reversed Judge Belloni’s 1976 dismissal of the charges on delayed appeal by U.S. Attorney Charles Turner, who had replaced Sidney Lezak as chief prosecutor. Judge Shirley Hufstedler, in a dissenting opinion, accused the majority of “contorting legal logic” in reinstating the government’s case, but the matter was sent back to the District Court in Portland for trial in January of 1983. In May 1983, Dennis and Kamook Banks, Ken Loud Hawk, and Russell Redner appeared before U.S. District Judge James Redden; their attorneys entered a motion for dismissal based on the argument that the defendants’ sixth amendment right to a speedy trial had been violated by the government’s long hiatus, the judge agreed, and the charges were once again dismissed.
U.S. Attorney Turner again appealed the dismissal to the Ninth Circuit. This time, the appeals court agreed with Judge Hufstedler, and the government’s appeal was denied. Still not willing to let the matter rest and having infinite financial resources, Turner appealed to the U.S. Supreme Court and, on January 21, 1986, was rewarded with a decision to reverse the dismissal once again, despite the fact that some ninety months had elapsed since the original dismissal on the basis of the prosecution’s unreadiness to proceed with the trial.
Justice Lewis F. Powell, writing for the majority, determined that the “problem” which resulted in the government’s inability to go to trial in the first place had to do with successful defense challenges to the admissibility of supposed federal evidence. Hence, the exercise of the fundamental rights of the accused to mount a defence was somehow construed as “doing everything in their power to delay going to trial” and a de facto waiver of sixth amendment rights. [ENDNOTE #99: This concrete example, far more than any abstract analysis, demonstrates the extreme peril in which we are all placed by the mentality of the “conservative” (i.e., neo-fascist) Reagan appointees to the Supreme Court. The recent and narrowly averted attempt to seat Robert Bork on the high court would have spelled the final dissolution of even token legal protections of human rights within the U.S. With regard to Bork, it is worth noting that after Judge Fred Nichol’s dismissal of charges in the “Wounded Knee leadership” trial for gross governmental misconduct, it was then Solicitor General Robert Bork who ordered the U.S. Attorneys in the case to appeal the dismissal.] Such “reasoning” was strongly dissented from by Justices Thurgood Marshall, William J. Brennan, Harry A. Blackmun and John Paul Stevens. The matter was once again sent back to the District Court in Portland, as a result of a decision which former WKLDOC attorney Lynn Parkinson described as “intellectually dishonest and vindictive.”
For once, the lower courts appear to have come to share fully such a “radical” opinion. On July 14, 1986, Judge Redden wrote that — in his court, at least — although the high court had reversed orders that the charges should be dismissed on sixth amendment grounds, those dismissals would stand “because the government has also violated the defendants’ due process rights in other regards.” The government immediately launched yet another appeal of this, the third consecutive dismissal of its fabricated charges. As of this writing (mid-January 1988), it appears that the case will come before the district court for yet a fourth time in 12 years, although U.S. Attorney Turner has openly admitted that he “may be losing [his] objectivity” in the matter.
In November 1987, Judge Fred Nichol, now retired, was asked his opinion of discovery motions filed in this case by attorney Ken Stern. He responded,
“…I ended [the Wounded Knee Leadership] case with the firm conviction that the Government would go to any end…in order to convict Mr. Banks…[T]he total disregard of truth and fairness in the Government’s attempt to ‘get’ Dennis Banks ‘by hook or crook’ did not stop at the doorstep of the FBI. The U.S. Attorney’s office was an active participant. The Court was intentionally deceived…The fact that both the FBI and the U.S. Attorney’s office were active participants in this pollution of justice convinced me there was a systemic, in addition to an individual, desire to convict Mr. Banks by means well beyond those which were ethical and fair. After all, in other cases in my district I had both FBI agents and these attorneys before me regularly. But the willingness to lie and fabricate and withhold evidence was only exhibited against Mr. Banks and his AIM co-defendent. And it was exhibited with a vengence…If my experience has taught me anything, it is that the past is a good indication of the future. The broad and pervasive nature of the FBI and prosecutors’ misconduct in 1973 and 1974 reflected patterns and beliefs that were deeply held. I doubt they would be easily abandoned.”
– Letter from The Honorable Fred Nichol to Kenneth S. Stern, November 17, 1987.
Indeed, the seeds of the FBI’s anti-AIM campaign of the mid-1970s have continued to sprout, well into the second half of the 1980s.