DLN Issues : South Dakota Government -- Racism
Before Kill and Run, Was There Rape and Run?
Documents Show the FBI Gave Janklow a Pass
CounterPunch, December 16-31, 2003
http://www.counterpunch.org>
By Stephen Hendricks
On December 8 South Dakota’s at-large representative, Republican
Bill Janklow, was convicted of manslaughter in the second degree.
For speeding through a stop sign and killing a motorcyclist, he
could receive up to a decade in a prison that for two decades he
had overseen as governor and attorney general.
This is not the first felony of which Janklow has been accused,
only the first of which he has been convicted. In 1967 he was
alleged to have raped a Lakota girl on South Dakota’s Rosebud
Indian Reservation. This much has been known for years. But newly
found papers show what Indians have long suspected but never been
able to prove: The FBI cleared Janklow of the rape in three
investigations that were more charitable than rigorous. The story
goes to the heart of the FBI’s curious Indian history, a history
that swerved between casual neglect and pathological subversion.
But first Janklow. When he was accused of rape in 1967, police with
the Bureau of Indian Affairs investigated, with results not made
public, then passed the case to the FBI. (Under federal law, tribal
cops may make only token investigations of most felony complaints.
Final investigative authority, in a nice bit of colonial panache,
lies with the FBI.) The results of the FBI’s inquiry were also
unknown, but based on them the U.S. attorney declined to prosecute.
Six years later prosecutor Janklow famously won riot convictions of
leaders of the American Indian Movement. On the strength of this,
he stumped for state attorney general in 1974. A month before the
election, AIM resurrected the rape charge in the court of the
Rosebud Sioux Nation. The court ordered the BIA and FBI, both of
which were covertly and overtly sabotaging AIM, to surrender their
investigative files. They did not. The court ordered Janklow to
appear for a hearing. He did not. The court took testimony
nonetheless and concluded it was “satisfied that the rape
allegations against Janklow are properly proven for the purposes of
the hearing held today.” But tribal dominion over non-Indians is
slight, and the judge could do no more than expel Janklow from the
tribal bar. A week later, two of three South Dakota voters elected
Janklow attorney general.
In 1975 President Ford nominated Janklow to the board that oversees
federal legal aid programs. Before his confirmation hearing, the
White House asked the FBI to vet him. The Bureau found him clean.
But at his hearing, AIM again cried rape, and Janklow abruptly left
the Senate committee room moments before he was to testify. Puzzled
staff searched for him for hours before discovering he was on a
plane back to Pierre. Days later Janklow reconsidered, the Senate
asked the FBI to make a third investigation, and again he was
cleared. In committee Alan Cranston, the liberal Californian,
agreed there was “absolutely no substantiation in any way for any
one of the charges,” a phrase Janklow is given to quoting.
But early this year, when Janklow was seated for his first term in
the House, Indian Country Today columnist Suzan Shown Harjo
(prompted by activists Hank Adams and David Harris) suggested the
rape allegation had not been adequately scrutinized. Soon
thereafter I suggested to Janklow’s spokesman that since the FBI
files exonerated Janklow, releasing them could put the matter to
rest. He agreed and promised copies but reneged after conferring
with the Congressman. My requests to the FBI, BIA, and U.S.
attorney also proved barren: All deny having the files.
I found the files anyway in 20-year-old court records involving
Janklow. In them, Jancita Eagle Deer said that on a Saturday night
Janklow drove her four miles outside the town of Mission, raped her
in his car, then drove her back. The drive lasted 50 minutes.
Confronted, Janklow agreed with the eighth-grader’s story, minus
the rape. But a day later, without explanation, Janklow said the
drive was only 15 minutes, enough to get to and from the darkened
field but too short for rape. Three witnesses bolstered his alibi,
yet two claimed to be with Eagle Deer, in different places, during
the alleged rape. (The third witness was a teenage sister of one of
the others.)
There is no sign the FBI noticed the conflicting alibis, much less
asked Janklow or his witnesses about them. John Penrod, the agent
on the case, now retired, told me it would have been standard to
note such contradictions in writing. He didn’t. Nor did he collect
physical evidence, like clothes; search the car; or look for tire
tracks, important because Janklow said he merely U-turned at
field’s edge while Eagle Deer said he drove farther in and parked.
Penrod explained that the U.S. attorney opposed such legwork:
“You’d wait to see if he wanted to prosecute, then gather that kind
of evidence.” But a decision to prosecute could take weeks, by
which time any evidence that could still be found would be tainted.
(The assistant U.S. attorney on the case, Ronald Clabaugh, denied
Penrod’s claim, but Penrod worked the reservation for nine years
and was adamant.)
Wesley Swearingen, a 25-year FBI agent from that era and author of
the whistleblowing FBI Secrets, said he “can’t imagine” any agent
not collecting physical evidence immediately. But he adds, “If the
U.S. attorney isn’t hot on prosecuting rape on a reservation, the
agent could feel he’s wasting his time.” Swearingen compared his
work investigating bank robberies, where “a squad would go
immediately to the bank, two agents would do nothing but dust for
prints and look for fibers, others would interview witnesses, and
another would work outside.” It would not surprise most Indians
that the FBI valued deposits more than their lives.
It gets worse. Eagle Deer raised her complaint the Sunday after the
Saturday drive, but she wasn’t taken to a doctor till Monday. Much
of the Indian Health Service was (and to a lesser but still
troublesome degree is) peopled by doctors who were inexperienced or
unable to get jobs elsewhere. The young doctor who saw Eagle Deer
was fresh from med school. He had to find a book on how to do a
rape exam. Even after his cramming, he didn’t know that a 36-hour
lapse between sex and exam would sharply cut the odds of finding
semen, that rape could occur absent semen, that he should swab for
semen outside the vagina, or that he should look for foreign pubic
hairs. When Eagle Deer complained of a tender thigh, he didn’t see
a possible connection with sexual assault. And because he never
looked for bruises or scratches beyond the pubic area, he
completely missed the nickel-sized hickey on her breast (visible in
investigative photos), which she credited to Janklow. There was no
semen, the doctor said, hence no rape. Penrod and assistant U.S.
attorney Clabaugh agreed and closed the 1967 file.
Andrea Smith, a Tsalagi (Cherokee) professor of Native American and
women’s studies at the University of Michigan, finds the attorney’s
decision depressingly par. Her attempts to study rape prosecutions
in Indian Country have been frustrated because “not one U.S.
attorney will tell me the number of rape complaints they receive or
prosecute.” When Smith researched one southwestern reservation, she
found no rape prosecutions for 2000, and she says she will never
forget the Justice Department official in the late Clinton years
who said only two U.S. attorneys nationwide would prosecute
reservation rapes. “If it’s this bad today,” Smith says, “imagine
what it must have been back then.”
* * *
There is nothing in the 1967 investigation to suggest the FBI or
U.S. attorney gave favorable treatment to Janklow per se. He
appears to have benefited “merely” from an attitude that alleged
crimes against Indians -- perhaps particularly when the accused
were white -- were nothing to exert oneself over. But the 1975
investigations, before Janklow’s Senate confirmation, smell of
something worse. By then South Dakota had become the most important
theatre in the war between the American Indian Movement and federal
and state governments. The FBI, for its part, infiltrated and
illegally wiretapped AIM. It gave armor-piercing bullets to
right-wing squads that beat and killed AIM members, then
half-heartedly investigated the violence. Under its auspices, AIM
was framed with crimes large and small, witnesses were intimidated
into giving false testimony, exculpatory evidence was withheld. In
much of this, US attorneys were complicit. More than one federal
judge would eventually characterize the federal tactics as
“arrogant,” “deliberate misconduct,” “in bad faith,” and “to be
condemned.” Janklow, who once said the way to deal with AIM leaders
was “to put a bullet in their head,” worked in step with the feds.
The peak of the struggle came in mid-1975, neatly coinciding with
Janklow’s confirmation. If the Bureau could look the other way on
political murders, why couldn’t it do likewise for a mere rape
charge against a political ally?
The FBI’s motive will probably never be discovered, but the new
documents make clear the FBI gave Janklow a pass. It could do so
with impunity because the White House and Senate, after letting
themselves be snookered, vouched for the FBI’s work. The
President’s counsel, citing “45 interviews in several different
states, comprising some 375 FBI agent hours,” called the 1975
investigations “extensive.” Senator Cranston called them “fair and
thorough … complete.” Liberal Republican Senator Jacob Javits said
they “vindicated [Janklow] completely.” But in truth the FBI files
are very thin. At least 28 of the 45 interviews were of the “Is the
nominee a Communist?” type, standard to background checks of the
period and irrelevant to the alleged rape. Of the remaining 17, it
is not clear how many dealt with the rape (the files are heavily
redacted). But it is plain the interviews were brief, their content
minimal. Of the few witnesses from 1967 who were reinterviewed, no
new ground was covered. Most damningly, there is no record that the
FBI spoke with any of the original fact-finders: Neither agent
Penrod, then still in the FBI’s employ; assistant U.S. attorney
Clabaugh; the young doctor; nor the BIA cop (who, incidentally,
believed Eagle Deer) recalled visits from the FBI in 1975. Nor is
there any sign that the obvious screamers in the case, like
Janklow’s shortened drive, the shoddy rape exam, or the lack of
physical evidence, were explored.
Jonathan Steinberg and Donald Elisburg reviewed the investigation
for the Democrat-controlled Senate committee. Steinberg, now a
federal judge, claimed (dubiously) that it would be improper for a
jurist to discuss such past work. Elisburg, hazy on details, was
certain the charge was taken seriously. “But it would also be fair
to say,” he allowed, “that the level of intensity of scrutiny was
definitely not where it is now. It was much more, not casual, but
collegial in dealing with nominations.”
During the 1975 reinvestigations, speeding joyriders ran over Eagle
Deer on a rural Nebraska highway. She was supposed to have been
traveling by car from South Dakota to Iowa, but she died on foot
one hundred miles off route. Her ride was never found. Contemporary
reports put her shortly before her death with a man matching the
description of Douglass Durham, the most notorious of the FBI’s
infiltrators of AIM. In a 2000 report, the Bureau said it didn’t
investigate Eagle Deer’s death because Nebraska police had
jurisdiction (in fact, the Bureau has jurisdiction over both
possible kidnappings and the acts of its informers), and the
Nebraska investigation found Jancita Eagle Deer was the victim of
an unfortunate vehicular accident. Twenty-eight years later,
Indians may be forgiven for finding irony in the undoing of Janklow
by a similar accident.
Stephen Hendricks is writing a book on the struggle between Indians
and the federal government, forthcoming from Four Walls Eight
Windows. He lives in Helena, Montana.
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