Partial Transcript: Judge Urbom, I would like to have you give some of your personal background if you would.
Segment Synopsis: Judge Urbom gives a quick summary of his past leading up to his position as the United States District Judge.
Keywords: Arapahoe, Nebraska; Army; Atlanta, Nebraska; Balyor, Evnen, Baylor; Nebraska Wesleyan University; Nixon; United States District Judge; University of Michigan
Partial Transcript: I understand that you officiated with several of the trials...
Segment Synopsis: Judge Urbom explains how he got involved in the Wounded Knee trials and why the trails were moved to Lincoln.
Keywords: Dismiss; Eighth Circuit Court of Appeals; Guilty; Judge Andrew Bogue; Judge Haine; Lincoln, Nebraska; Sioux Falls, South Dakota; South Dakota; United States Government; Wounded Knee; nolo contendere
Partial Transcript: Do you recall exactly how many of the hundred were actually convicted?
Segment Synopsis: Judge Urbom explains the appeals process during the Wounded Knee cases and explains how the process works.
Keywords: 1868 Treaty; Alan Cooper; Appeal; Convicted; Court of Jurisdiction; Defendant; Eighth Circuit Court of Appeals; Guilty; Judge; Plead; Record; Supreme Court
Partial Transcript: There are various Indian movements and organizations which were involved...
Segment Synopsis: Judge Urbom explains why he needs to reserve any feelings or statements of "good or bad" but he does share some of the impressions he received from the trails.
Keywords: American Indian Movement; Bureau of Indian Affairs; Department of Interior; Occupation; Opinion; Wounded Knee
Partial Transcript: I wonder if you could make any comment about the Indians claim that...
Segment Synopsis: Judge Urbom talks about letting the defendants pick attorney's. The attorneys were not allowed a fee except for the travel expense that was covered by the United States Government.
Keywords: Appointment; Community; Counsel; Court; Expense; Fee; Justification; Lawyer; Police; Treatment; Wounded Knee
Partial Transcript: In your opinion, what do you think the future of the Indian/white...
Segment Synopsis: Judge Urbom gives a history and background of the 1868 Treaty with the Sioux.
Keywords: 1868 Treaty; Annuities; Army; Black Hills; Buffalo; Bureau of Indian Affairs; California; Citizen; Congress; Culture; Disease; Fail; Fort Laramie; Gold; Government; Impose; President Grant; Railroad; Red Cloud's War; Reservation; Sioux; South Dakota; Supreme Court; Treaties; War
Partial Transcript: Could I interject something here?
Segment Synopsis: Judge Urbom explains how a treaty is binding until Congress decides it's not.
Keywords: 1868 Treaty; Case; Civilization; Civilized; Congress; Constitution of the United States; European; History; Justice John Marshall; Law; Legal; Religion; Supreme Court
Partial Transcript: During a short break here, we were talking about the Constitution...
Segment Synopsis: Judge Urbom explains the differences that the Constitution holds for the Native American versus the average US citizen.
Keywords: 14th Amendment; Amendments; American Indian; Congress; Constitution; Federal Government; First; Indian Bill of Rights; Liberty; Section 8 Article 1; State; Tribal Law; Tribe
-E. Ann Kalthoff (EK): Nebraska
Omaha History of American Indians,
Dr. Michael Tate, Instructor.
I am in the office of Judge Warren K. Urbom,
United States District Court in Lincoln, Nebraska,
April 21st, 1977.
Judge Urbom, I would like to have you give
some of your personal background if you would?
-Judge Urbom (JU): I was born in Atlanta, Nebraska.
I was raised essentially in Arapahoe, Nebraska.
I graduated from high school there in 1942.
I was in the Army for two years,
then went to Nebraska Wesleyan University,
where I was graduated in 1950.
I went to the University of Michigan to Law School.
I was graduated in 1953,00:01:00
then began practicing law in Lincoln
with a firm then known as Balyor, Evnen, Baylor.
I practiced there
civil trial work.
My particular interest
was in the trial of cases in the courtroom.
I tried many of them,
but most of them were civil cases
as opposed to criminal.
Then I was appointed to the bench
in 1970 by President Nixon,
and have been
the United States District Judge since that time.
-EK: I understand that you officiated
with several of the trials
for the Wounded Knee incidents?
-JU: Yes, that's true.
-EK: Would you care to tell me how you became
involved in these trials?00:02:00
In early 1974,
Judge Andrew Bogue,
who is the United States District Judge
for the Western District of South Dakota
telephoned me saying that
130 criminal cases
arising out of the Wounded Knee incident,
and he felt
that he probably should not try them,
and was asking other judges to come in to help try them.
His plan, which by the time he talked with me
I think it had been approved by a panel
of the Eighth Circuit Court of Appeals,
was to have two or three trials running simultaneously
in different cities in South Dakota.00:03:00
So he asked if I would come
trying one of the cases,
and said he had other judges
who were available to come in,
and that he might ask me to come back again,
but that at least at the outset,
it would be only a one-week trial.
I agreed to that,
went for the first trial
to Sioux Falls, South Dakota
on February 11th, 1974.
At the end
of a month,
because we were not able to finish that trial in a week,
it took about two weeks to dispose of that case,
then there was another case00:04:00
that followed on the heels of it
involving the same basic incident.
So it was suggested that I might
resolve it as well,
since I had heard a good deal of testimony
about that incident already.
and at the end of
a month of service there on those two cases,
the lawyers involved,
both on the defense and the prosecution
approached me and asked if I would be willing
to assume responsibility for all the nonleadership
Wounded Knee cases.
Their argument was that if I would stay on
and handle all of them,
rather than having a variety of judges handle them,
they could all be disposed of more expeditiously00:05:00
because they believed if I would try them,
many of the defendants
would be willing
to be tried without a jury.
Nonjury trials go a little faster anyway,
but they would go faster in this instance,
especially because it was believed
that much of the testimony that would be given
in some of the trials
would also be applicable to other trials.
You see, if you have to change a jury each time,
then they must hear all of the evidence again,
whereas if a single judge hears it,
he can remember the testimony that he had earlier heard,
or can read a transcript of it.
We were making a transcript of all the testimonies
that would be available to me.
They said that therefore will save a great amount of time,
and they had already been in touch
with many of the defendants who agreed00:06:00
that they would
probably waive a jury trial
if I would stay on and be the presiding judge.
Their conviction was that
all of the cases could be resolved
in not more than nine months
under that kind of plan,
whereas if they were tried before other judges,
the necessity would be for using juries
in every instance and they believed
that would take upward of three years to finish them.
I was not terribly optimistic
that it could be done in nine months,
realizing that much of
the success of such a plan
would depend upon what other people would decide to do,
and they could make a decision at any time,
which would obliterate the plan.
if a defendant00:07:00
would not agree to waive a jury trial,
we'd have to have a jury trial,
and that would be a slow under this plan
as under the plan that Judge Bogue had already outlined.
It could be
that they might waive a jury trial
for the first trial or two or three,
but later everybody
would decide to insist upon a jury trial.
So at any time they could scuttle the plan.
The same would be true with the government.
If the government chose to have a jury trial,
the government was entitled to a jury trial as well,
so there had to be agreement
on every trial by every defendant
and the United States Government.
Well at any point along the line,
if any of them did not agree,
then the plan really would go down the drain,
so it was really very optimistic to think that we
could do it that rapidly.
Another part of the plan00:08:00
there would be
some pleas of guilty
or of nolo contendere,
which amounts to a plea of guilty,
and there would be some dismissals
by the government of cases,
and it was believed that
take care of quite a few of the cases,
although neither side at that point knew,
or could even estimate
how many of
the defendants would plead guilty
or how many cases the government would dismiss.
I was willing to do that
on some conditions.
One condition was that the Eighth Circuit Court of Appeals
would agree to
one or more00:09:00
United States District Judges available for service here
in Lincoln to handle my regular docket,
because I felt that nine months of service by me
on Wounded Knee would mean that my regular docket
would be a shamble unless someone else handled it.
who was the principal judge
of a three-judge committee,
appointed by the Eighth Circuit Court of Appeals
to shepherd the Wounded Knee case
agreed that he would
make all the efforts he could to have some other judge
come into Lincoln and handle my regular docket.
Another condition that I imposed was
that I would move the trials
as soon as reasonably could be done to Lincoln,
because it seemed to me00:10:00
I was willing to commit my time to Wounded Knee,
I could not really expect
my family to do so
it would almost mean
that I had to move to Sioux Falls,
or I had to commute
weekly to and from Sioux Falls,
which is what I did for about three months,
but I preferred not to do that for nine months.
I preferred not to move my family there,
because I had all four children in school,
and I preferred not to have them
although it would involve an uprooting I think of only two,
but one of them,
they both were in junior high I believe at the time,
junior high or grade school.00:11:00
That seemed to me unwise to do,
particularly in view of the fact that it seemed to me
that the defendants
would not be particularly
disadvantaged by coming to Lincoln.
Most of the defendants were from states other than Nebraska,
states other than South Dakota also.
Some of them were from South Dakota,
but most of those were
from the very western end of South Dakota,
and the trials would be
at the very eastern end of South Dakota.
It was not much more inconvenient for them
to come Lincoln than to go to Sioux Falls, South Dakota.
The lawyers that were representing these defendants
were by in large from places other than South Dakota.
They were from a little bit of country
that had ultimately developed,
but the convenience to them
was no greater in Sioux Falls than in Lincoln.
The United States00:12:00
had no quarrel
with the idea of moving to Lincoln.
who would be representing the United States
were not from Lincoln,
but neither were they from Sioux Falls,
so that there seemed to be little reason
not to move them to Lincoln.
Additionally, after looking at the situation,
and doing quite a lot of
checking and talking with persons here
in Lincoln who were in a position to help us,
it developed that we had facilities here,
both for the court
and for the defendants and their families,
that were probably superior to Sioux Falls,
I don't think in every detail,
but I mean overall,
it probably was a better arrangement to try them here.
But that's essentially the background00:13:00
for how I got involved and how the trials got to Lincoln.
-EK: How many trials did you,
or how many cases did you try in all?
- It's hard to say,
the definition of the word trial
is open to interpretation.
Many of the cases
were dismissed outright by the government.
Some of the cases were disposed of on the motion.
For example, a defendant or a series of defendants
file a motion saying,
because we think the evidence is so slender,
we propose that you require the government
to make a statement about what this evidence will be,
and then you take that evidence
and accept it all as being truth,
and if you think that that evidence if at all were true,00:14:00
would not be enough
to make a prime efficacy case against these defendants,
then we ask you to dismiss the cases.
I did that, with the governments assent
on quite a number of them,
and dismissed many of them that way.
I did not dismiss some of them on that kind of motion.
Other cases were disposed of on motions to suppress.
the first case
that I handled in Sioux Falls
was disposed of that way.
We had a two-week hearing
to decide whether some evidence
that the government had obtained from an automobile
in which the defendants were riding,
was obtained legally or illegally.
At the end of that hearing I held,
it had been obtained illegally,
and therefore could not be used against these defendants.
The government then said,00:15:00
since that's our key evidence,
and we can't use it,
there's no point in going forward with this trial.
So that case was disposed of on a motion to suppress.
There were others that were disposed of in a similar way.
Now there were other cases that were tried
from the beginning up to the end of the government's case,
and I dismissed them at that point,
without requiring the defendants to put on any evidence.
There were others that we tried all the way through,
and I rendered a verdict just as a jury would.
There were some that were tried to a jury,
and a jury resolved.
So taking all
of disposing of a case
and lumping them altogether
and calling them cases tried,
there were almost a hundred that were disposed of.
-EK: I had wondered when,
if there weren't,
whether the United States Government
or any of the defendants had chosen a jury trial?00:16:00
In one instance, the government did.
In I think as I remember it,
I'm not sure this is accurate but,
as I remember it,
there were two trials in which a jury made a decision
at the defendant's request,
but I believe we had only three,
and it may have been only two
in which there were jury trials.
there were only about
six or seven full trials.
that went all the way
through to a verdict by someone,
either by me
but we disposed of most all the cases by some means
than a full trial.
-EK: Do you recall exactly how many of the hundred
were actually convicted?
- I know approximately.00:17:00
there were two who pleaded
either guilty or nolo contendere,
and there were
who were convicted
by a jury or by me.
I believe there were only six.
-EK: Have any of these been appealed?
The four who were convicted
by me appealed,
and the Eighth Circuit Court of Appeals
reversed their convictions
in so far as a conspiracy count is concerned,
and three of those defendants
as a result were found not guilty.
One of the defendant's was found guilty on another charge.00:18:00
He remains guilty on that,
at least that's the interpretation
I give to the Eighth Circuit Court of Appeals' opinion.
That's a little bit uncertain at this moment.
I've not checked the record
to make sure that the defendant appealed that count,
and one of the attorney's representing him,
whom I saw recently
is not clear either
to what the status is of that one count,
but I think that as of this moment,
he stands guilty of one count,
but then the other three that were found not guilty
by the Eighth Circuit Court of Appeals.
-EK: I wonder if you could tell me exactly
how the appeals process works?
As soon as a decision is made by me,
which ends the case,
the defendant then may appeal.
Now in most situations,
the government cannot appeal if it loses.
It tried on one occasion to appeal,00:19:00
but the Eighth Circuit held that it did not
have a right to appeal.
But if a defendant is found guilty,
he may appeal to the Eighth Circuit Court of Appeals
as a matter of right.
The four who were found guilty by me did appeal,
then Alan Cooper, who had pleaded nolo contendere
and then was found guilty,
not his conviction,
but to assert
that the court
had no jurisdiction
over him because of the 1868 Treaty.
It was understood when he entered his plea
of nolo contendere that he was reserving that right
so that he was not admitting
to that the 1868 Treaty
was ineffective to deprive the Court of Jurisdiction,
so he appealed that,00:20:00
and in sort of those cases,
Mr. Cooper's case,
and the four that had been convicted were appealed.
The Eighth Circuit Court of Appeals
then has a panel of three judges
who reads the record that is made of these trials,
and resolves them.
That's all over with now.
The last decision I made
in any of the cases
was I believe in
February of 1975,
and we had deliberately designed the whole scheme
so that all appeals would be taken at the same time,
rather than having them go against me.
Shortly after that,
then they were appealed,
and the Eighth Circuit Court of Appeals
made its decision in,00:21:00
I believe April of 1976.
Then there was a motion before
the Eighth Circuit Court of Appeals for a reconsideration.
It denied that in July of 1976.
who had been challenging
the jurisdiction of the court
on the basis of the 1868 Treaty,
asked the Supreme Court of the United States
to take that issue and it recently,
I mean, I think
March of 1977
refused to do that.
So the matter is now concluded.
-EK: Could you tell me what precedents were used for the cases?
-JU: Well, many.
The law as it relates to Indians00:22:00
well not altogether,
but it was substantially different
from the law as it relates to most other people.
The reason for that is that most of the law
of special congressional legislation,
geared directly to Indians or Indian Reservations,
or in some instances what we call Federal Enclaves
which include Indian Reservations,
but also include other installations of government.
For example, this Federal building right here,
if a crime were committed in it,
there would be a special set of congressional laws
that apply to it.
The same is true with Indian Reservations.
Well, many Federal Courts,
including the Supreme Court of the United States,
have interpreted those laws,
but they've not been interpreted
nearly as extensively as most other laws.
That meant that a lot of the things00:23:00
we were doing were not first impression necessarily,
but at least without a great deal of guidance,
which made it
more interesting and challenging than other laws.
Then of course as to the 1868 Treaty,
there really was no precedent on that,
although I mean directly on the 1868 Treaty,
but there was precedent
in international law
and in the Supreme Court of the United States'
opinions about other treaties,
and about relationships with Indians
which was very helpful.
-EK: There are various Indian movements and organizations
which were involved in the Wounded Knee takeover.
I wonder if you would care to comment on the,
some of the organizations,
such as the Bureau of Indian Affairs,
American Indian Movement,
Civil Rights Organization,00:24:00
or the National Council of Churches
and their involvement at Wounded Knee?
-JU: I can't really give you
very much information about some of them.
The Bureau of Indian Affairs
is a part of the Department of Interior,
and has the responsibility
of the relationships
between the federal government and Indian Tribes,
particularly those on reservations.
The American Indian Movement as I was able to understand it,
was a group of Indian persons who
associated themselves with various announced goals.
Its involvement in Wounded Knee
insofar as I became aware,00:25:00
which was only through the testimony received at the trials,
seemed to indicate that it was one organization of Indians,
and some non-Indians I think also belonged to it,
dedicated to improvement of the Indians in their,
in many of their activities.
I think I must not express any opinion
about their efficacy or their validity,
or their effectiveness,
because I must not be in a position
I think of having made some announcement,
which amounts to a prejudgment
in the event of some future lawsuit,00:26:00
either civil or criminal,
involving some member of the American Indian Movement
that might come before me.
Every judge has to be extradordinarally circumspect
about things like that,
because if I made some declaration either favorable
or unfavorable to the organization as a whole,
that might indicate that I either had a prepossession for
or a prejudice against the organization or the people in it,
and if a dispute would come about in the future
involving the organization or members of it,
one of the other side could claim that I not only
had made a declaration about being either for or against
the persons or organizations, but that would indicate
that in fact I could not be independent.
I think that's true you see.00:27:00
If a judge makes up his mind
that a certain bunch of people
are either good or bad, that he no longer can really be fair
about them, so I must not only speak no opinion,
but I must really have no opinion about people.
- Would you be willing to express any of
your personal feelings as to the major cause or causes
of the Wounded Knee complication?
- I can do that in part.
It has to be sketchy if you understand,
and I will not point fingers at persons
other than in a kind of general way.
But I'm willing to do a little of it,
so to this extent.
There is no doubt that the Indians00:28:00
have felt themselves dreadfully abused.
At least those Indians which I heard at the trial.
Now we must understand that the ones I heard at the trial
I'm sure are not totally representative
of the Indian community.
I don't even know that they represent among the majority.
I only know that those from whom I heard
were confident that the Bureau of Indian Affairs
and other branches of the United States Government
had refused to talk with them,
and refused to consider their plight,
both social, economic, and religious,
and that the United States was preferential00:29:00
in its treatment of some Indians as opposed to others,
and was unsympathetic generally
to many of the concerns of the Indians.
They said that they had tried in many ways
to bring those complaints to the government officials,
but without success.
They maintained that
the leadership that then was in power on the reservation,
I mean Indian leadership was unsympathetic
also to many of the Indian complaints others had.00:30:00
Now they said that they felt
no way of genuinely being heard,
other than by some dramatic move
such as the occupation of this town.
I pass no judgment on whether that was necessary,
whether in fact the government was not
being sensitive to it, or whether the in-power
group of Indians was being insensitive.
I'm only saying the impression I received
from the trials was that, what I have described
was the feeling of one segment, not the Indian population.
So they felt no way of getting redress,
except by something like this.00:31:00
-EK: I wonder if you could make any comment about
the Indians claim that in certain cases or most cases,
the white man is treated differently in the courts or by
the police department, as opposed to the Indian population?
-JU: I know there's that feeling among
many of the Indian population at least.
I can't comment about whether
they're treated differently by the police.
I don't know anything about it.
I don't know to what extent
they are treated differently in the courts.
I suppose as most people do I guess,
that there's some likelihood00:32:00
that there is some justification
for their feeling of being treated differently.
One of the claims made to me
when I began my Wounded Knee service work
was that there really was no confidence
in the Indian community of any hope
of getting justice in the white man's court.
It was for that reason for example,
that the Indians ask for an appointment of lawyers
other than those lawyers who would normally be appointed
from the Districts of South Dakota
or the District of Nebraska.
They wanted persons who were from some other area
who were genuinely devoted to the Indian cause,
and that was a major point with them.
We worked that out so that they got00:33:00
appointment of lawyers whom they wanted.
The United States I think in every instance
provided counsel, appointed counsel,
and I appointed those counsel
whom the Indians or the defendants.
Some of the defendants were not Indians,
but the defendants wanted.
There was a group of persons,
some lawyers, some not lawyers,
who were a committee
working on behalf of all the defendants.
That committee headed from time to time
by a different lawyer would reach lawyers
from around the country and ask if they would come
and represent a particular set of defendants
in a particular trial.
So we had lawyers from really all over the country,
and remarkably astute, skillful,00:34:00
experienced criminal lawyers in most instances.
I appointed them in every instance at the request,
as requested by the defendants, but told them
that I could not allow any fee
for it seemed to me,
and I started this immediately upon my going to Sioux Falls
and stood by it to the end,
I think in only one or two instances
did I allow any fee at all.
I told them that I would appoint whom they wanted,
but whenever I did that,
it would be without allowance of fee,
although there would be an allowance for expenses,
so that the person could come to Lincoln
at the expense of the government and could stay here
at the expense of the government.
Although the allowance for living expenses00:35:00
was controlled, I think I allowed $25 a day only
in every instance,
so that all of the lawyers,
I believe it's true that all of the lawyers
served without fee,
except for one, who had done
an extraordinary amount of work on a particular venture,
so I allowed him a fee, although not very much.
My conviction there was that
if I were going to allow a fee,
it would have to be through someone
who I knew and could appoint,
because I had confidence in that person.
Now as it turned out,
all the lawyers who came were splendid lawyers,
and I would have felt no compunction
about having them pay the fee, but I could not think
that I rightly could appoint in advance a lawyer00:36:00
without even knowing him,
and provide for the allowance of a fee.
So I said, if I am to allow a fee,
I appoint whom I choose,
and I'd allow him a fee,
but if you choose him,
you'll have no fee.
In every instance,
they chose ones that were selected by them
rather than by me.
-EK: Do you have any opinion or any comment
about why the confrontation was at Pine Ridge Reservation
as opposed to some other place in the country?
-JU: Not really.
I know nothing about the other
ills that were brewing
around the country about the same time.
By that I mean I know nothing more00:37:00
than what I read in the newspapers,
to the effect that there were others.
I know there was one at Custer.
I know that sometime not too long afterward
there was one in Wisconsin,
and no doubt,
there were others brewing at the same time.
Why this one flared more than the others,
at least, well, I guess it didn't flare any more
than Custer did, but why this one developed
as opposed to some others, I don't know.
This one was festering,
and an occasion apparently was presented
when the Indian people were together
and felt particularly put upon, and so they reacted.
I think another feature which caused this one to erupt
was that Wounded Knee itself
was a historic place of the Indian people.00:38:00
It was the scene really of the last confrontation
between United States troops and Indian people in 1890,
and so it had a kind of
extraordinary importance to the Indian people
and they may have chosen it deliberately therefore.
-EK In your opinion,
what do you think the future of the Indian/white relations?
Do you think that there's a possibilility
of doing away with the present Bureau of Indian Affairs
and getting this out of the Department of Interior
and possibly having an Indian Affairs Group
out of the Executive Department?
-JU: Oh yes, I think most anything is possible.00:39:00
Over the last century or two,
the government has tried many different things,
and so it's likely to try many different things
in the future.
Whether there's any particular merit
to changing they system, I don't know.
That's really a political decision that is not for me
to decide, and I can't do anything more
than speculate on it.
All I can say is that the government,
despite claims that it's been very insensitive,
has put forth some remarkably strong efforts
to bring about harmonious relationships.
Now it's failed in almost every instance,
and it may fail in every one in the future,
but it's not for lack of trying.
It really has done a lot of things,
so have the Indian people.
But it's simply an enormous, complicated problem,00:40:00
and so we can't fault anybody for saying,
why haven't you solved it?
My prediction is that there will be more agony
that arises out of the white/Indian relationships
than there already has been
to the black/white relationships,
and it will take longer to resolve because of the depth
of the feelings, the chasm,
the breadth of the chasm that's between the two cultures,
and there is no strong desire
on the part of either the whites or the Indians
to change their own cultures in order to accommodate,
and that's what's required
to really bring about an accommodation.
One or the other or both are gonna have to change
their basic notions about what culture is.
That doesn't come easy.00:41:00
-EK: I understand that you have done considerable research
into the Indian treaties.
I wonder if you would care to comment on them?
The treaties themselves, what you have found as far as
them being legally binding today?
Can portions of these be lived up to?
-JU: I have done research on the 1868 Treaty,
but it really is the only one.
So my comments would about have to limited to it.
I'm generally aware of a lot of other treaties,
but there are many, many treaties
with American Indians,
and each one is unique, I suspect,
although many of them have lost the common features,
but let me really talk about the 1868 Treaty.00:42:00
I can do that in as much or little detail as you want.
I can talk for a long time about it.
let me spend a few minutes at it if I may
to give you some feel for the breadth
of the 1868 Treaty and what went on behind it.
The 1868 Treaty grew out of
an effort to control hostilities
that had grown up between the United States
and the Indians in the central part of the United States
in the middle of the 19th century.
There was a long history that grew out of it,00:43:00
but perhaps I can just give this kind of summary.
In 1849, when the whites discovered gold in California,
an enormous number of other whites wanted to move
from the eastern part of the United States
to the western part of the United States to get to the gold.
Now that's not the only reason whites wanted to go west,
but it was a telling reason for large numbers to go.
The Sioux occupied in a roving manner,
a huge geographical area in the middle of the United States.
As these whites would go to California,
they would necessarily pass through the Sioux country.
Friction almost was almost inevitable,
but some of the particularly irking features to the Indians00:44:00
were that the whites would massacre
huge numbers of buffalo,
which were the mainstay of the existence
of the Sioux Indians.
The whites also would bring with them diseases
which the Indians were not prepared to cope with.
The whites wanted to build railroads
across the land which the Indians resented,
and in 1854,
an incident occurred near Fort Laramie,
at which time a group of Indians was killed,
no, a group of soldiers were killed,
when they attempted to arrest an Indian
who had been accused of killing a cow.00:45:00
That started Red Cloud's War,
which lasted until the 1868 Treaty brought it to a halt.
The treaty provided essentially these things:
number one, that the Sioux would now
restrict themselves geographically to an area
roughly comprising the western half,
which now is the state of South Dakota.
They would also have hunting rights down in Nebraska,
as far south as the Platte River, westward into Wyoming
northward up into Montana and into North Dakota.
But aside from hunting rights,
they would restrict themselves to that half of South Dakota.
Secondly, the United States00:46:00
was to make certain payments to them.
Yearly annuities, in terms of money and they would provide
a physician, a teacher, and a blacksmith shop.
Thirdly, the Indians were to withdraw their
resistance to putting railroads through the territory.
Fourthly, the United States was to assure
by the use of force if necessary, that the western half
of South Dakota would be reserved exclusively
for the Indians.
No one else was to be permitted there.
Fifthly, there was to be no war ever again
between the Sioux Nation and the United States.
Then lastly, although I don't know that00:47:00
I've ticked off all of the provisions of the treaty,
but these are the ones at least with which
I've been most concerned.
There was provision made for what would happen
to what they called bad men among the whites,
and bad men among the Indians, which I think meant,
what do you do about people who commit crimes
either on the reservation or persons
who live on the reservation off the reservation?
Now those are the,
was the provisions of the treaty.
gold was discovered in the Black Hills.
Of course the Black Hills was within that region
reserved for the Indians.
The whites of course again wanted that gold,
so they began moving in.
The Indians were not very successful
in keeping them off.
The American Army kept them,00:48:00
well it tried to keep them out to a limited degree,
President Grant withdrew them all together,
and didn't any longer make any effort to keep them
out of the Black Hills.
The United States then tried to buy the Black Hills
from the Indians, but was unable to strike a bargain.
Eventually, Congress simply unilaterally declared
that the Black Hills were no longer part of the land
reserved to the Indians
and were now lands of the United States.
did some other things that directly affected
the land reserved to the Indians.
It declared that no longer
would the entire western half,
excluding even the Black Hills belong to the Indians,00:49:00
but the reserved land would be broken up
into smaller reservations, and only those small reservations
would be now reserved to the Indians.
Later, Congress declared the Indians to be citizens
of the United States, and then even later declared
that the Indians on the reservations might form governments
of their own to handle
certain internal governmental matters.
Now, it's this kind of legislative encroachment
that took place after the 1868 Treaty
that became significant in the question of
whether the 1868 Treaty
bars the United States from enforcing any
of its laws on the reserved land for the Indians.
The basic claim of the defendants,00:50:00
well I don't mean by basic as being the most critical,
but the one that was common to all the defendants was
that in the Wounded Knee cases,
was that the United States simply had no right to impose
its law on the reservation
because the 1868 Treaty acknowledged that that land
was for the Indians exclusively,
and gave the United States only limited right
to punish persons who were found to have committed crimes
on the reservation.
There's no doubt that it did give the United States
some right under these provisions
having to do with the bad men among the whites,
the bad men among the Indians, but it was limited,
and the basic argument of the defendants was that
the United States was one nation,
the Sioux nation was another nation, and the 1868 Treaty00:51:00
acknowledged that the Sioux was a sovereign nation,
and there have never been a treaty that had declared
anything different from that, therefore,
the United States had really no more right
to impose its laws on the reserved lands
than the United States had to impose its laws on France
or Mexico or Spain, or any other foreign country.
Now the basic problem
with that position was the Supreme Court for a long time
has said that that just isn't true,
that when you're dealing with Indians,
the Congress is at liberty to revoke a treaty
anytime that it wants to, and that the Congress00:52:00
can change a treaty by unilateral action.
-EK: Could I interject something here?
-EK: One of the articles in the 1868 Treaty does say that,
let's see if I could quote this here.
No treaty for the session of any portion
or part of the reservation herein described
which may be held in common shall be of any validity
or force as against the said Indians,
unless executed and signed by at least three-fourths
of all the adult male Indians
occupying or interested in the same.
-JU: Yes, and in 1876,
when the United States was trying to buy the Black Hills,
they were trying to meet that provision
by buying it and making a treaty with them,
but they were not able to get that many Indians
to agree to it.
Consequently there was unquestionably no treaty
which altered that provision received by international law,00:53:00
and now adopted by the Supreme Court of the United States
by Congress, by the Executive.
declaration that you just read is not the final word.
Congress can change that if it chooses to do so,
and it's chosen to do so.
-EK: And they have all the legal rights to do that?
You see, you don't need to find that so stunning,
that's true to my knowledge with every civilized nation
in the world, and probably every uncivilized nation.
Internationally, there's no such thing
as a binding agreement.
If one of the nations to a treaty chooses
to ignore the treaty, it proceeds to do so.
If it chooses to alter it, it proceeds to do so.00:54:00
If the other doesn't like it,
the other reacts in any way it wants to,
but it still admits that each side has a right
to back out of or alter a treaty as it wants to.
Now that may be a little broader than is actually accurate,
but essentially that's true,
and that's the way it is with Indian treaties.
If Congress declares that it is now altering a treaty,
it has the power to do so.
-EK: According to this way or manner of
dealing with treaties,
it would seem to me that there would actually be no use
in making a treaty.
-JU: Oh, no.
There is use in making a treaty in that as long
as both sides are satisfied with it,
both sides will live up to it.
-EK: Until they're not.
-JU: Until everyone is not satisfied.
-EK: And they refuse to recognize it.00:55:00
-JU: You see, we don't have a world government.
If we had some super government that could enforce
agreements between nations, that would be one thing,
but we don't have any such thing, so we have to
leave it up to each nation to enforce its own commitments,
and that means that it enforces it as it chooses.
Now you see,
a prime argument in the 1868 Treaty hearing
was that the basis of that law
that I just stated for you,
as it applies to Indians,
is unethical, immoral, and untrue factually,
and therefore ought to be changed.
Much of the testimony that I heard at the trial
regarding this 1868 Treaty,00:56:00
was by anthropologists, and historians,
and traditional Indians who outlined a long
American Indian history beginning with 15,000 years ago,
and working through to the present
designed to persuade me that the Indian culture,
which has been here for 15,000 years,
is not an uncivilized heathenistic,
that is deserving of being crushed.
Mr. Justice John Marshall in 1823
announced the basis for the law which in essence says,
that Indian treaties can be undone unilaterally.00:57:00
He said that it began at least as early as 1596
when England commissioned the Cabots to go out
and explore new lands and take them over
in the name of the Monarch.
The idea accepted not only by England then,
but by the other European nations
was that any of those nations
under the banner of being a Christian nation
was entitled to find heathen lands
and as soon as anyone set foot on that heathen land,
title to the land immediately vested in the sovereign
on whose behalf the explorer was acting.
More than that, sovereign immediately got the right
to occupy the land in any manner
to which its people would permit it.
Now the justification for it was,00:58:00
that these people were heathen people,
uncivilized, and that they should be willing to give up
their independence in return
for Christianity and civilization.
Now the argument of the 1868 Treaty
was this culture and really many cultures,
but the Indian,
the Indians at large,
were a deeply religious people,
a deeply adaptable people who had built
many different kinds of civilization geared to the needs
they had, and the particular geography in which they were,
and their way of doing things was as sensible
as those Europeans who in arrogance came over00:59:00
and decided that they had a right to take over them
in any way, in the name of Christianity and civilization.
So they were saying,
you can see Judge
how wrong this law is.
Its basis, that is,
that the Europeans
were superior in civilization and in religion.
It's simply false,
therefore, when the basis of a law is false,
the law itself has to fall,
so you should ignore the law,
even though the Supreme Court of the United States
has declared it since at least 1823 and repeatedly since.
It's, you know, it's an appealing argument,
and compelling in many ways.
I felt that compulsion of the testimony.
The difficulty is that,
that I am not empowered to change
the Constitution of the United States in the first place,01:00:00
nor the decisions of the Supreme Court
of the United States in the second place.
The Constitution of the United States
says that it is the Executive, that is the President,
and the Congress who have responsibility for,
sole responsibility for relationships for the Indians.
It has not given the judiciary any capacity
to decide that the rules that prevail in our relationships
can be different from what they are.
The second thing is that if it is the courts
that decide these things, the Supreme Court
of the United States has already decided it,
and therefore, they must go to the Supreme Court
and ask the Supreme Court to change it, and cannot ask me,
because I am simply bound
by what the Supreme Court has said.
Now I tried very hard to permit the defendants
to make a Wounded Knee trials a full record01:01:00
of the whole history of leading up to the 1868 Treaty
that they wanted to make so that the Supreme Court
of the United States could have a full record
from which to work.
So as far as anybody can tell,
that had never before been done,
and so defendants were hopeful,
as I was hopeful that the Supreme Court
would take the case and
if they thought they had the capacity
to make a different law, that they would be in a position
to do so if they wanted to do so,
at least have a record from which they could do it.
Now allegedly, the Supreme Court has chosen not to do that,
and so be it.
That's the kind of fundamental,
moralistic argument that was made in opposition.
You asked whether there are any parts
of the 1868 Treaty that are in effect?
And the answer to that in my judgment is yes.01:02:00
In my opinion on that,
my written opinion on the subject,
I did not hold that the 1868 Treaty
was ineffective or invalid.
I simply held that in some regards
that Congress has superseded it.
To the degree that Congress has superseded it,
it no longer is in effect.
But there are areas in which the Congress
has not superseded it.
Those are thoroughly in effect.
A treaty is binding until
and to the degree that it remains,
well, let me start that again.
A treaty is valid until it is altered by one of the parties,
and it is altered only to the extent that it is altered.
In other words,
parts of it indeed do relate to the law.
-EK: I think that one of the questions I would have on that
is the legality of Congress01:03:00
taking some of the land
that they have already given the Indians?
-JU: Well, you see when you talk about legality,
legality is determined by the law,
and the law is whatever those who have the power
to make the law say it is, you see?
If the people of the United States were to vote
by its Constitution that you had no right to be anywhere,
you have no right to exist.
Now you can say, well, that's not legal.
Of course it's legal to people
to its Constitution have voted it so.
That's true with every organized society.
Law is what those who are given the power say it is,
and in this instance,
the question of how we deal with Indians01:04:00
has been given by the people of the United States
to its Constitution to the President and to the Congress.
They, therefore can say whatever they want to say.
-EK: During a short break here,
we were talking about the Constitution of the United States
and how it applies to the people of the United States,
and how it applies to the American Indian.
Could you relate how it applies differently
to the American Indian as opposed to
the rest of the people of the United States?
-JU: Yes, I can offer this explanation,
which I think is accurate, although it doesn't,
it's not a full declaration of wherein
the Constitution is different.01:05:00
In the first place,
it does single the Indians out in the Constitution,
and that's unique I think.
I'm confident no other group of people is singled out.
Section eight of Article one
commits the Congress to regulate commerce
with Indian tribes.
Well, no other group is similarly
singled out for special treatment.
Now, in a sense, that's not special treatment
because also included within the same clause
are foreign nations, but I'm saying that it is different
in that any group of people who are considered
to be a part of the United States,
citizens of the United States,01:06:00
are here treated differently
from any other group of people
called citizens of the United States.
Now when this Constitution was written,
they were not considered citizens,
but they now are,
and thus that makes the Constitution a peculiar,
as far as the Indians are concerned.
Now there's another feature about it,
and that is that in the amendments to the Constitution,
well the first 10 amendments particularly on the 14th,
which have to do with our personal liberties.
That's different insofar as Indians are concerned in some,
in some important ways.
For example, the first amendment
declares that Congress shall make no law
concerning certain things,
such as free speech, and religion, and the press.
The 14th amendment says that the states01:07:00
shall make no law
that deprives any person of the due process,
and that it has been held,
means among other things,
restrictions on free speech and religion.
Nevertheless, it is only the United States
and the states which cannot
or which must follow those amendments.
The Indian tribes are not required to do so.
The Constitution in no instance says that an Indian tribe
has to enforce any personal guarantee of liberty
for any of its people.
Sometimes that becomes important because
there are some areas of reservation life particularly,01:08:00
which are governed by the local tribes.
They pass their own laws,
and nothing in the Constitution requires those laws
to preserve any of the liberties that our Constitution
declares for other people.
Now a state cannot discriminate against an Indian,
the federal government cannot,
but the tribes can,
as far as the Constitution is concerned.
Now, sometime back the Congress decided that
that was not a good state of affairs,
that Indian people should be protected
from their own governments,
as well as from the United States and the state government,
and Congress passed what is called
the Indian Bill of Rights, which largely tracks
the first 10 amendments and the 14th of the Constitution01:09:00
of the United States, not precisely, but largely.
But that's because of Congressional actions,
not because of the Constitution.
-EK: Now does this apply to Indians who are
on the reservations, and if these same Indians would move
into the cities, then there would be no separation
as far as treatment?
-JU: Well, I think that's true because I believe
that the only tribal laws
that govern to the displacement
of any federal or state laws is on an Indian Reservation,
so that if they're not on the Indian Reservations,
the tribal laws would not apply to them.
And thus, the state laws would and the federal government,
the federal laws wouldn't, and thus they would be
under the same umbrella as the Constitution
of the state laws as anybody else and no other.01:10:00
-EK: Were there any other comments that you care to make as,
in regard to the 1868 Treaty?
-JU: I don't think so.
It's a treaty which still has some effect,
and is a treaty which probably like many other treaties,
has in some measure been overcome
by Congressional declarations,
and that is one of the great sources
of irritation for the Indian community.
They think that it is grossly unfair
that the United States would make a treaty
and then proceed to exacerbate or to diminish it01:11:00
by eliminating parts of it.
They say that simple fairness would require
that we ought to make an agreement with them
and that we weren't gonna change the treaty
after having once made an agreement.
I don't suppose that many people
would quarrel with the idea.
It has a generality,
but when you get down to specifics,
the law has never been thus,
and it still is not as far as I can see.
-EK: Okay, I would like to thank you for your willingness
to participate in this interview.
-JU: You're very welcome.
I'm happy to do it.
-EK: This concludes the interview
done by E Kolthoff, student,
University of Nebraska at Omaha,
History of American Indians Class,
Dr. Michael Tate, Instructor.
Interview with Judge Warren K. Urbom,
United States District Court, Lincoln, Nebraska,01:12:00
April 21st, 1977.