In February 1973, leaders and members of the American Indian Movement (AIM) and others occupied the town of Wounded Knee, South Dakota to protest the administration of a tribal chairman and the alleged U.S. failure to honor its treaties with the American Indian nations. They controlled the town for 71 days while U.S. government law enforcement, including FBI agents, surrounded the town. The two sides exchanged gunfire daily, and people on both sides were killed.[1]
In May 1973, AIM leaders invited Rev. Paul Boe of the American Lutheran Church (ALC) to visit them at Wounded Knee for religious counseling.[2] Boe had an established relationship with them as a result of the ALC’s ministry to American Indians under his leadership. Indeed, AIM had been formed with ALC financial assistance at Rev. Boe’s urging; he then was the Executive Director of its Division of Social Services.[3]
Thereafter a South Dakota grand jury conducted an investigation as to what happened during the siege. Rev. Boe was subpoenaed by the grand jury. He was not asked to divulge any confessions he received at Wounded Knee, but he was asked about what he saw. He answered those questions he deemed did not violate any confidences. But he refused to answer questions as to whom he saw carrying guns on the ground that it would require him to betray confidential communications.[4]
As a result, the federal district court held Rev. Boe in civil contempt of court and ordered him to be confined in jail until he decided to answer the questions. The latter order was stayed or postponed while he appealed the contempt finding to the U.S. Court of Appeals for the Eighth Circuit.[5]
This is where I entered the drama with David E. Engdahl[6] as the lawyers to prepare an amici curiae (friends of the court) brief supporting Rev. Boe’s appeal of the contempt citation. The 11 amici were the ALC, the National Council of Churches of Christ in the U.S.A., the United States Catholic Conference, the Lutheran Church in America, the United Presbyterian Church in the U.S.A., the Right Rev. John E. Hines (Presiding Bishop of the Episcopal Church), the Center for Social Action of the United Church of Christ, the Board of Church and Society of the United Methodist Church, Msgr. John Egan (Executive Director of the Catholic Committee on Urban Ministry), the Department of Church and Society of the Division of Homeland Ministries of The Christian Church (Disciples of Christ) and the Lutheran Church-Missouri Synod.[7]
The Amici Brief asserted two arguments. First, the U.S. Constitution’s First Amendment religion clauses fobid compelling a clergyman to answer questions concerning communications and incident observations which his church requires him to keep confidential. Second, a clergyman has a federal common law privilege to refuse to disclose to a federal grand jury his confidential professional communications with his others and his observations incident thereto.[8]
On January 16, 1974, the Eighth Circuit reversed the judgment of contempt on the ground that Rev. Boe was denied due process requirements of notice and a meaningful opportunity to present his defense. The court said nothing about the issues raised by the amici curiae.[9]
Afterward two AIM leaders, Dennis Banks and Russell Means, were indicted on charges related to the events, but their 1974 case was dismissed by the federal court for prosecutorial misconduct, a decision upheld on appeal.[10]
[1] Wikipedia, Wounded Knee Incident, http://en.wikipedia.org/wiki/Wounded_Knee_incident.
[2] Reverend Boe (1915-1990) was a social activist who was instrumental in opening discussion about Native American issues in the ALC and with the American public. Boe’s position regarding AIM made him an unpopular figure in the ALC, and he resigned from the church in 1974 and traveled the country with his “Why Wounded Knee?” lecture series. (Center for Western Studies, Paul Boe Collection, http://www.augie.edu/cws/PaulBoespeech.html.
[3] Brief of the ALC, et al., Amici Curiae at 14-15, U.S. v. Boe (8th Cir. Jan. 9, 1974)[“Amici Brief”].
[4] Kelley, Tell All or Go to Jail: A Dilemma for the Clergy, Christian Century at 96 (Jan. 30, 1974).
[5] Id.
[6] At the time Mr. Engdahl was a professor at the University of Colorado Law School. Now he is a professor at Seattle University School of Law. (Seattle Univ. School of Law, David Engdahl, http://www.law.seattleu.edu/Faculty/Faculty_Profiles/David_Engdahl.xml.)
[7] Amici Brief.
[8] Id. at 10-38.
[9] U.S. v. Boe, 491 F.2d 970 (8th Cir. 1974).
[10] Wikipedia, Wounded Knee Incident, http://en.wikipedia.org/wiki/Wounded_Knee_incident.
