Wounded Knee 122 Years Later

[Peter Lemkin]

In the Spirit of Crazy Horse is a book by author Peter Matthiesen chronicling the tumultuous history between the Sioux and the United States government, with emphasis on contemporary events on the Sioux reservations of South Dakota. He focused on the events of the 1970s on the Pine Ridge Indian Reservation. This included the Wounded Knee Incident, a 71-day, armed stand-off between federal and state agents, and members of the American Indian Movement (AIM), an activist group, and their Oglala Lakota supporters at Wounded Knee. Two Native Americans were killed and a Federal Bureau of Investigation (FBI) agent seriously wounded. Matthiessen features the AIM activist Leonard Peltier, through his involvement in the 1975 "Pine Ridge Shootout," in which two FBI agents were killed; his later trial and conviction; and the controversies surrounding the case.

Bill Janklow, the former Republican state attorney general and governor of South Dakota, and David Price, an agent with the FBI, filed libel suits against Viking Press for contents of the book. Janklow also filed a suit against the author Matthiessen. In an unusual action, he filed a suit against three South Dakota booksellers for selling copies of the book. Viking Press filed a countersuit against Janklow, which in part alleged he had interfered with the company's constitutional rights to publish and distribute the book. The lawsuits prevented the book from being published in paperback for eight years. The rulings supported the author's and publisher's rights of free speech under the First Amendment to the Constitution, and the booksellers' rights to sell books.

The book was critically well received. Most scholars praised Matthiessen's veracity and accuracy,and the author's support of Peltier, AIM, and the Oglala Sioux were acknowledged and appreciated by those parties.

The book was finally published in paperback in 1992 after the libel suits were dismissed by the various courts and their respective decisions affirmed upon appeal. The lawsuits and their attendant rulings have become important and oft-cited cases in the area of Media law and freedom of speech. Due to the intense publicity generated by the lawsuits, the paperback version of the book became a bestseller.

Lawsuits

After publication of the book, two plaintiffs filed libel suits against Viking Press. Bill Janklow, the former Republican governor of South Dakota, filed a $24 million lawsuit in South Dakota. He also sued three booksellers in South Dakota who had sold hardcover copies of the book. This case was watched because of its repressive aspects related to bookselling.

Janklow's suit was based upon one paragraph in the book: it has statements by the AIM leader Dennis Banks referring to the rape allegations made against Janklow by Jacinta Eagle Deer, a young Brulé Lakota on the Rosebud Indian Reservation. Banks also noted Janklow's arrest for driving drunk and nude on the Crow Creek Reservation in South Dakota in 1973.[1]

Janklow filed a separate lawsuit against Newsweek magazine (Janklow v. Newsweek, 788 F2d 1300) for an article that contained the disputed passage.[1] In his complaint, referring to the statement by Banks about rape, Janklow "cited a 1975 letter from Philip Buchen, head of the Office of Counsel to the President of the United States, to the Senate Committee on Labor and Public Welfare, saying that three Federal investigations found the allegations against him 'simply unfounded.' The Senate committee was considering Mr. Janklow's nomination as a director of the Legal Services Corporation..."[1]

Viking Press filed a countersuit against Janklow in the Southern District of New York; in part it alleged that Janklow had interfered with the company's constitutional rights to publish and distribute the book.[1] A South Dakota circuit court ruled that the book was not defamatory and terminated Janklow's lawsuit in 1984; upon Janklow's appeal of the ruling, the South Dakota State Supreme Court reinstated the case in 1985.

David Price, an FBI agent who was at the Wounded Knee incident, filed two identical lawsuits against Viking: one in South Dakota state court (Price v. Viking Press, Inc., Civ. No. 84-448) and an identical suit (Price v. Viking Press, Inc., 625 F. Supp. 641) in federal court, seeking $25 million in United States District Court for the District of South Dakota. The case was transferred to a federal court in Minnesota.

The lawyers representing both Matthiesen and Viking Press in the federal suit in Minnesota were noted First Amendment lawyer Martin Garbus of Frankfurt, Garbus, Klein & Selz, New York City with Barbara F.L. Penn, St. Paul, Minnesota.

In the Minnesota case, Federal District Court Judge Diana E. Murphy dismissed the Price suit. Her 33-page ruling noted: "Viking recognized that responsible publishing companies owe some duty to the public to undertake difficult but important works." Janklow's case in South Dakota was similarly dismissed. In both cases both the author and publisher were deemed to have been protected by the free speech clause of the First Amendment of the United States Constitution.