Protest, Scale, and Publicity:
The FBI and the H Rap Brown Act
Bruce D’Arcus
Department of Geography, Miami University, Oxford, OH, USA;
[email protected]
This paper deals with issues of political dissent and the geography of state power through the lens
of a particular law and its deployment by the US state in the context of the 1973 occupation of
Wounded Knee, South Dakota by American Indian Movement activists and local residents. I
explore how the state responded to the highly mediated nature of the Wounded Knee occupation
through tactics that minimized the visibility of its efforts to contain the protest. These efforts, I
argue, also constituted a broader politics of scale. I begin with a theoretical discussion of the intersection of protest, scale and publicity. I then use the empirical example of the H Rap Brown Act
to show how these dynamics were being reworked in the US during the late 1960s and early 1970s.
In particular, I place the emergence of the H Rap Brown Act within a context of changing
geographies of race and state power, more specifically as they were articulated around the unrest
that was engulfing American cities. I then analyze how the law was deployed by the state during
the 1973 occupation of Wounded Knee. Finally, I conclude with a discussion of what the case of the
H Rap Brown Act has to tell us more broadly about our theoretical understandings of the geographies of public protest.
[T]he most serious domestic crisis facing America today is the
ominous threat of riots and mob violence that hangs like a pall over
many of our cities. We believe that the vast majority of the people
share this opinion.… The majority of the committee has responded
to this crisis by ordering reported a bill which will give added protection to roving fomenters of violence, such as Stokely Carmichael
and H Rap Brown.1 (US Senators James Eastland and Strom
Thurmond in US Senate 1967:15)
The enactment of this bill would cramp the style and make subject to
criminal prosecution the Stokely Carmichaels, the Martin Luther
Kings, the Floyd McKissicks, and others of their kind who preach
anarchy and disobedience to the law. (Congressman O C Fisher,
quoted in Remington 1973)
On 27 February 1973, approximately 200 American Indian Movement
(AIM) activists and local residents began an occupation of the hamlet
of Wounded Knee, located within the boundaries of the Pine Ridge
Reservation in South Dakota (Figure 1). These activists used the
occupation, which ultimately lasted 71 days, to dramatize a variety of
issues of particular concern for Native America. The occupiers demanded
© 2003 Editorial Board of Antipode.
Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street,
Malden, MA 02148, USA
Protest, Scale, and Publicity
719
Figure 1: Wounded Knee Site and surrounding area
that three US Senate committees be convened. The Foreign Relations
Committee was to address the subject of “treaties made with American
Indian Nations and ratified by the Congress of the US” (Anderson et
al 1974:34). With an international perspective, this committee was to
seriously consider the question of sovereignty with respect to Native
America—to ascertain the status and nature of the boundaries that
defined Indian nations. The second committee was to focus at the
national scale and to address the way that the quasisovereign spaces
of the reservations were managed by the state. Specifically, the committee was to investigate the Bureau of Indian Affairs (BIA). Finally,
AIM demanded that a third committee conduct an investigation of
“all Sioux reservations in South Dakota” (Anderson et al 1974:35).
This last was meant to investigate alleged corruption among tribal
governments like that of Pine Ridge. All of these demands, the occupiers
made clear, were based on the provisions of the 1868 Sioux Treaty.
The Wounded Knee occupation was noted for its spectacular
symbolic politics, in which issues of treaty rights and the sovereignty
claims for which they stood were articulated, in quite dramatic fashion,
on a global media stage. Wounded Knee itself, the site of a massacre
of approximately 300 Indians at the hands of the US military in 1890,
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was a particularly charged symbol for the American public, Indian
and non-Indian alike (Brown 1971). With dramatic images of Indians
defending this site against federal forces, the story of the Wounded
Knee occupation was covered on the pages of national and even international newspapers, and on the evening news of all the major television
networks (see eg Newsweek 1973a, b; Time 1973).
In the case of Wounded Knee, we see an example of an historic
moment at which protest was transformed, what a TV Guide report
later described as an early “test-tube case of confrontation politics and
its symbiosis with the media” (Hickey 1 December 1973:8). The relatively new phenomenon of the televised protest allowed the dramatic
expansion of the publics that could be engaged through the occupation of public spaces. The clearest evidence of this emerging power,
perhaps, was the slogan chanted by protesters at the Democratic
national convention in Chicago in 1968: “The whole world is watching.” But if the world could be brought together on the streets of
Chicago, the corollary of this is equally true: that the expanded reach
of the new media spaces made it possible for protest to be enacted in
spaces quite far removed from the urban spaces of traditional protest.
Wounded Knee is one of the first dramatic examples of this fact.
By making use of these new media spaces, Wounded Knee occupiers
were able to effectively jump scales and draw attention and support
from far and wide. Such spectacular symbolic politics were all about
image, about visibility before wider publics. Likewise, the barricades,
bunkers, perimeters, and so on that constituted the more concrete
efforts to control the space of the occupation were also primarily
distinguished by their visibility—by the fact that they both materially
and discursively marked out a space of conflict. Put simply, Wounded
Knee was an instant spectacle.
Less noted, however, was the more covert, less public means by which
the state worked to contain the conflict. Particularly significant was
the use of the federal anti-riot act as a means to manage the nationwide
support that developed for the occupation. Through the Federal
Bureau of Investigation (FBI), the US Department of Justice used
the act to limit the flow of support to Wounded Knee by arresting
people en route at points far removed from the occupation site. In
turn, the FBI showed a characteristic concern for not just the what
and where of support for the occupation, but also the whom. This was
framed in explicitly racial terms, so much so that the anti-riot act also
became known as the H Rap Brown Act.
In this paper, I examine one particularly significant way in which the
Wounded Knee occupation was shaped, not by what was highly public
and visible, but by what was less than public. In particular, I explore
how the state responded to the highly mediated nature of the Wounded
Knee occupation through tactics that minimized the visibility of its
Protest, Scale, and Publicity
721
efforts to contain the protest. These efforts, I argue, also constituted
a broader politics of scale. I begin with a theoretical discussion of the
intersection of protest, scale and publicity. I then use the empirical
example of the H Rap Brown Act to show how these dynamics were
being reworked in the US during the late 1960s and early 1970s. In
particular, I place the emergence of the H Rap Brown Act within a
context of changing geographies of race and state power, more specifically as they were articulated around the unrest that was engulfing
American cities. I then analyze how the law was deployed by the state
during the 1973 occupation of Wounded Knee. Finally, I conclude
with a discussion of what the case of the H Rap Brown Act has to
tell us more broadly about our theoretical understandings of the
geographies of public protest.
Protest, Scale and Publicity
In a whole series of events in the past few decades, political protests
have placed national identity and state authority in radical question.
From Tiananmen Square in 1989 to the jungles of Southern Mexico in
1994 to the streets of Seattle in 1999 or of Québec City in 2001, activists
have used the time- and space-collapsing qualities of contemporary
media and communications technologies to greatly enhance the visibility of their political claims. By claiming and reworking important
public spaces, and by doing so before national and even international
audiences, contemporary protests occasionally shift relations of
power. In turn, states have been prompted to respond in sometimes
novel ways to these visibly public expressions of dissent. Such protests
thus shed light on the larger geographical dynamics of nation-states.
To critically assess these issues, I make use of two primary concepts.
The first, scale, provides a language to describe how spaces are differentiated and to understand the geography of power by analyzing how
different actors are able to gain access to wider spaces—or not (Adams
1996; Agnew 1993; Herod 1991, 1997; Marston 2000; Mitchell 1998;
Ruddick 1996; Smith 1992a, b, 1993). As Neil Smith (1992a:64) argues,
“[The] continual production and reproduction of scale expresses
the social as much as geographical contest to establish boundaries
between different places, locations, and sites of experience.” The
history of public protest involves just this dynamic of scale, in which
protesters attempt to claim key public spaces in order to be more
widely visible and influential. States, by contrast, work to contain such
dissent—both ideologically and geographically—as marginal and local.
The second key concept is publicity, which allows us to differentiate
among different kinds of space and spatial practices and to better
understand how issues of identity and representation are bound up in
protest. As with work on scale, current geographical interest in issues
of public space focuses on the social construction of another type of
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boundary: the public/private divide. What are the normative frameworks, these studies ask, attached to the relationships between public
and private spaces (Bell and Valentine 1995; Duncan 1996; Hubbard
1998; Mitchell 1995; Staeheli 1996)? How are such frameworks and
the boundaries that regulate them normalized, transgressed, or renegotiated? And how are public concerns—those taken on by the state, for
instance—related to the private spaces of the home, the bedroom,
or even the body—or how should they be? Central to this work is the
perspective that the microgeographies of the public street or the private
home are tied up in larger social and spatial processes. Public protests of
the sort I analyze in this paper are one explicit expression of this fact.
Public Space and Protest
Contemporary mass-mediated protests fundamentally involve issues
of publicity, public space, and scale (Miller 1994; Routledge 1993,
1998; Slater 1997). According to Hartley (1992), the first of these,
publicity, has always been associated with both the political status
of citizenship and with visibility. The origins of the English word
“public,” he (1992:35) explains, are rooted in a Greek word for “adult
male,” the significance of which lies in the fact that within ancient
Greek democracy, it was free adult males who alone held the status of
citizens within the polity. In turn, the conduct of the political affairs of
the state took place in the agora, the public space at the center of the
city/state. “Aristotle himself,” Hartley explains, “grounded politics
upon the faculty of looking, limiting the ideal size of the state to the
largest number of citizens who could assemble together and still ‘be
taken in at a single view.’”
In turn, Ruddick (1996) suggests, the importance of public space
lies in the mismatch between the material scale in which a larger
ideological scale is invoked. “[T]here is,” she (1996:140) argues, “no
necessary connection between the physical scale at which a public
space is constituted and the scope of its public realm. Attempts to
control this scope, to limit or expand it, are integral to the processes
through which social identities are constructed, contested, or maintained.” Mitchell (1995:115) also highlights the importance of this
scalar mismatch in his definition of public space as “an unconstrained
space within which political movements can organize and expand into
wider arenas.”2 As he (1995:115) suggests, efforts to materially control
and create public space are often efforts by excluded groups to represent themselves—to make themselves politically visible—as a part of
“the public”: “[P]ublic space is a place within which a political movement can stake out the space that allows it to be seen. In public space,
political organizations can represent themselves to a larger population.
By claiming space in public, by creating public spaces, social groups
themselves become public.”
Protest, Scale, and Publicity
723
In other words, public space is a medium through which a complex
set of relationships is worked out, including relationships across scale.3
By taking control of particular spaces and making use of them for
quite different ends than they are otherwise intended to serve, protests
are transgressive: they momentarily shatter the bounds of normality of
particular places (Cresswell 1996; Sibley 1995). In this sense, protests
constitute a kind of discursive moment in which such transgressive
acts are aimed at making critical arguments about the existing state of
things visible to a wider group of people—namely, a “public.” Protests
establish a relationship between the micro and the macro, the specific
space of protest and elsewhere. By definition, then, a protest establishes a particular relationship to both its object—whether the state,
an abortion clinic, or a private firm—and a wider public.
Public Order, Law and State Power
If public space mediates the relationship between the micro and the
macroscales, public space also—both its very character and its relationship to other spaces—is itself mediated through other relationships.
“As a legal entity, a political theory, and a material space,” Mitchell
(1996:155) argues, “public space is constructed through a dialectic of
inclusion and exclusion, order and disorder, rationality and irrationality, violence and peaceful dissent.” Public space is that complexly
interwoven medium in which the relationship between citizen and
state, power and resistance, come together in and through space in
particularly visible ways. Normatively, public space is where legitimate
citizens take part in legitimately and visibly public activities and, in so
doing, reaffirm their relationship to a state that defines those very
boundaries: between the legitimate and the illegitimate, the public
and private.
In this sense, the regulation of public space is bound up in the
regulation of the nation-state as a whole. This is particularly apparent
when considering the relationship between law and public space.
Because “Law-making is power-making,” as Benjamin (1978:295) put
it, it is “an immediate manifestation of violence.” Citing Benjamin,
Mitchell (1996:155) argues that “Law-making … may be an immediate
manifestation of violence … [but it] is also a means for dominant
interests to avoid violence by maintaining social order and control”
(emphasis in original). Put differently, power always involves a
dialectic between visible and invisible, latent and active violence. As a
crystallization of power, law itself embodies this dialectic.
Mitchell’s argument, however, suggests that this dialectic of
violence is itself bound up in a dialectic of scale. If, as he shows, laws
always have specific histories and geographies, Law—as a generalized
abstraction that embodies the state—is, by definition, universalizing, because it “seeks to enact a set of codes that are placeless and
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timeless, that are, in the name of justice, free from the variability of
local contingency.” Law, put simply, “must be transferable from one
context to another” (Mitchell 1996:172). It is an abstraction that seeks
to regularize the bounds of proper and improper behavior across an
expanse of space. In this sense, law is essential to the ongoing production and reproduction of the nation-state (Blomley 1994; Delaney
1998). Along with a whole series of other mechanisms, then, law is a
spatial medium that regulates public space at the same time that it
regulates the modern state.4
Together, the two concepts of scale and publicity provide a useful
framework for understanding the complex geographical dynamics of
power and identity that are characteristic of contemporary protest.
How is “the public” constituted in the context of protests—who is
public and visible, on what terms, in relation to what publics? How
are these social distinctions of publicity “mapped” onto the spatial
distinctions of public space and scale? More generally, what different kinds of boundaries are transgressed, erected, or reinforced
when national identity and/or state authority are placed in question
in the context of significant mass-mediated protests? And, in the
more explicit focus of this paper, how do states respond to such
events in the interests of preserving “public order” and domestic
tranquility?
In the remainder of this paper, I focus attention on these issues to
ask how state power, protest, and publicity were codified in the H Rap
Brown Act. How was this legal intervention discursively framed in
relation to the identity politics of publicity? How did the US state use
the H Rap Brown Act during the course of the Wounded Knee occupation to contain the ideological scope and the material support that
the event created? Finally, and more broadly, what are the implications of this particular confluence of scale politics and publicity to
issues of democratic practice and state power?
Containing Dissent
Placing the Emergence of the H Rap Brown Act
American cities, according to Monkkonen, have historically been
characterized “as violent, noisy, chaotic, and disorderly.” Such notions
of disorder, he (1981:539) points out, have in turn been linked to
understandings of specifically urban public spaces: urban because
cities “are characterized by relatively intensive use of public space by
people of all classes,” and public because it is only in public that such
disorder is made visible—as he says, “open to observation”—by the
public. But if there is a general history of viewing the city as a site of
disorder, there is a more specific history—and, indeed, geography—
by which particular cities are understood in specific times as
disorderly in variable ways. The reemergence of the city as a site (and
Protest, Scale, and Publicity
725
sign) of disorder in the 1960s was particularly intense. But it also took
on a particular form in which unrest in particular cities was
understood by many to be symptomatic of a larger national problem.
In turn, this national problem also raised concerns about a larger and
more sinister geopolitical problem.
Wounded Knee took place at the tail end of the civil-rights era,
a time at which citizenship was being dramatically challenged in a
variety of venues, including on city streets. No issue better crystallized
how power, identity, and space came together in complex and contentious ways during this time period than the so-called race
riots that swept American cities. In 1968, these riots were a common topic of discussion in American magazines, newspapers, and
television shows. The sheer volume of coverage of this issue in news
reporting, commentary, and letters to editors suggests that, as a
phenomenon that was taken to represent a larger national problem
or threat, the riot as a marker of urban disorder was troubling for
many.5
The concern about urban riots led many—politicians, academics,
the public (or, more precisely, a public)—to demand answers. The
question of how different actors understood the broader significance
and root causes of the riots is important enough. Even more important, however, is how those assessments shaped the concrete actions of
various state officials, particularly the congressmen who crafted laws
that attempted to criminalize a particular kind of political activity and
the government officials charged with implementing those laws. In
response to broad concern about riots, President Lyndon Johnson
established a National Advisory Commission on Civil Disorders, the
task of which was both to understand the “origins of the recent
major civil disorders in our cities” and, more importantly, to make
recommendations on “methods and techniques of averting or controlling such disorders” in the future (US Senate Select Committee
1976:491).
To this end, FBI Director J Edgar Hoover appeared before the
commission to discuss the role of a new kind of radical in these disorders, what he referred to as “rabble-rousers.” As Hoover explained
to the commission, these individuals represented a new, highly
mobile threat. By taking advantage of contemporary communications
and transportation technologies, these rabble-rousers—who, as he put
it, “initiate action and then disappear”—were largely responsible for
the unrest plaguing American cities. To keep close tabs on just such
“subversives,” Hoover had established the Rabble Rouser Index in
1967, a list that specified who these people were and where they lived.
Hoover understood these subversives in explicitly racial terms: as
“racial agitators and individuals who have demonstrated a propensity
for fomenting racial discord.” Moreover, FBI instructions specified
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that “only individuals … of national interest be included on this
index” and that “[p]articular consideration should be given to … those
… who travel extensively” (US Senate Select Committee 1976:511).
From this perspective, Hoover placed the problem of the nation’ cities
at the foot of a new kind of individual: mobile and unattached to particular locales, these outsiders freely moved across state boundaries,
stirring up trouble where it had not previously been. Hoover resurrected the mobile criminal—like the public bandits of the Depression
years—as requiring state intervention in the interest of protecting the
public.6
While Hoover’s Rabble Rouser Index certainly facilitated such
state intervention, my interest in this paper is with another product of
1968’s concern with urban riots and the geographies of race they were
taken to make visible. Specifically, I am interested in untangling the
historical geography of a law: the Federal Anti-Riot Act. The act,
introduced in 1968 as a rider attached to a federal housing bill, was
designed—as the author himself, Strom Thurmond, explained on the
floor of the Senate—“to deal firmly and actively with those harbingers
of anarchy who undoubtedly contributed to the tragedies of our cities”
(quoted in Fishlow 1973:11). For the sponsors of the bill, likely
drawing on Hoover’s analysis, these “harbingers of anarchy” were
understood in explicitly racial terms—so much so, in fact, that the
Federal Anti-Riot Act also became known by a more telling name:
the H Rap Brown Act.
The act targeted anyone “who travels in interstate or foreign
commerce or uses any facility of interstate or foreign commerce,
including, but not limited to, the mail, telegraph, radio, or television,
with intent” to incite, organize, participate in, or in any way contribute
to a riot (Anti-Riot Act 1968). Riot was defined in the act as “a public
disturbance” involving either acts of violence or threats of violence by
“persons part of an assemblage of three or more persons” that “would
constitute a clear and present danger of … damage or injury to the
property of any other person.” The act, then, applied to explicitly
public and collective expressions of either real or threatened violence.
It applied to that realm of politics in which the legitimate “protest”
was marked off from the illegitimate “riot.” And it worked its legal
leverage precisely by blurring the distinction (itself blurred in reality),
not between just the legitimate protest and the illegitimate riot, but
between actual bodily travel and the “facility of” such travel—the less
tangible spaces of connection created by the television and radio
signal and the telephone line.7
The H Rap Brown Act was thus borne of a particular historicalgeographical moment, one that put the nation-state itself—at least in
the perception of many—at some peril. Such larger peril, in turn,
was based on concern about a variety of people forcefully putting
Protest, Scale, and Publicity
727
themselves in places they did not belong. The H Rap Brown Act was
thus a legal and spatial tool to control the public spaces of urban
America. In more specific terms, the law, both in design and practice,
was used to control dissent by New Left groups precisely by regulating
the spatial field in which they moved. In introducing the rider,
Thurmond proved himself an astute, if reactionary, interpreter of the
spatial politics of the day: if a bunch of rabble-rousing communists
and anarchists were striking at the very heart of the nation through
their appropriations of public spaces, and if those actions depended
on much wider nets of connection, the state should use federal
authority—its command of national space—to cut those connections,
and thus circumscribe the realm of protest politics. The hope of
such a policy was that protest itself would wither away.
In practice, the Justice Department first used the H Rap Brown Act
in US v. Dellinger et al (1968) to prosecute individuals involved in one
of the more significant protest events of the 1960s: that which took
place outside of the Democratic National Convention in Chicago in
1968. By targeting high-profile New Left leaders—in this case, the
group that became known as the Chicago Seven—the government
hoped to deter future unrest. The legal brief submitted by the defense
team for its appeal of the eventual conviction included an analysis of
the dynamics of scale and protest and of the manner in which the
H Rap Brown Act attempted to intervene in these dynamics. “[A]t no
time in the history of the nation.” the defense team argued, “has
legislation been enacted so bluntly and directly for the overt purpose
of limiting freedom of speech and belief unhampered by concern for
constitutional limitation.” (Kinoy, Schwartz, and Peterson 1971:41).
In particular, this argument examined the essential spatiality of that
fundamental precept of democratic society, freedom of expression.
“The nexus between the right to travel and freedom of expression,”
the defense team argued, “lies in the very nature of expression
itself” (Kinoy, Schwartz, and Peterson 1971:99). The public, put simply,
is by definition somewhere else. As such, some kind of medium
needed to facilitate the movement of ideas across space. “In a society
where distances are large and access to the public media is essential to
the effective communication of ideas,” the brief continued, “freedom
to move quickly from one part of the country to another is an essential
ingredient of the effectiveness of First Amendment guarantees”
(Kinoy, Schwartz, and Peterson 1971:99–100).
The defense thus argued that protest has always been bound up in
worlds more expansive than the local. The geopolitical calculus behind
the H Rap Brown Act, they argued, was an old one inseparably fused
with “the concept of ‘outside agitator’” (Kinoy, Schwartz, and Peterson
1971:100). The very concept reflected an effort by those resistant
to social change to close the gates around the local and to label as
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illegitimate such public dissent. Digging back in history, the brief
explained that “so-called ‘outside agitators’”
have performed an indispensable function in our nation. From the
Boston Tea Party to the streets of Selma, Alabama, their freedom to
express their ideas, to seek change and responsiveness on the part
of government to the needs of the people, and to travel to every
corner of the nation to do so, has long been the cornerstone of
constitutional protections (Kinoy, Schwartz, and Peterson 1971:
103).
The nation itself, in other words, was founded by “outside agitators.”
“[F]reedom of expression,” this argument concluded, “can know no
boundaries, and people must be free to move across state lines and
to use the facilities of interstate commerce for the purpose of
speech, discussion and ‘agitation’” (Kinoy, Schwartz, and Peterson
1971:106).
In this sense the H Rap Brown Act attempted to keep people in
their proper, quite circumscribed, place by making use of existing
political boundaries. “Unlike any other federal criminal statute which
purports to meet and correct a social evil, the ‘evil’ here contemplated
by those who drafted this legislation was ‘freedom of movement’ itself”
(Kinoy, Schwartz, and Peterson 1971:100; emphasis in original). That
such a politics of scale and publicity was understood in explicitly racial
terms is clear enough from the testimony of its sponsors. The geographic problem the H Rap Brown Act was crafted to address was the
public expression of dissent by Black Americans. Such dissent was
waged over and in America’s urban public spaces.
Within the broader context of the state’s response to the problem of
riots and protests that were shaking the nation, the FBI played a particularly important role. Hoover, for example, recommended passage
of the H Rap Brown Act because it provided another tool that his men
could make use of to respond to such “problems.” It was the FBI that
would take responsibility for investigation of the violations of the
statute. Ironically, however, the state’s most extensive use of the H
Rap Brown Act as a legal-geographic tool to contain dissent came
with respect not to the spaces for which it was largely crafted – the
ghettoes of urban America – but rather to a remote Indian reservation
in South Dakota.
The H Rap Brown Act at Wounded Knee
A fact little reported at the time in the media and not commented on
significantly in the academic literature since was the state’s wide-scale
use of the H Rap Brown Act as a tool to contain the Wounded Knee
conflict. “With hundreds of people facing substantial prison terms,”
one group argued at the time, “the government is now preparing the
Protest, Scale, and Publicity
729
second massacre of Wounded Knee, the one it hopes will take place in
the courts. The weapons this time are the conspiracy and federal antiriot laws” (Wounded Knee Information and Defense Fund 1973).
“The Thurmond rider,” another noted, “is coming into increasing use
as a weapon to crush dissent,” with “the takeover-protest at Wounded
Knee” resulting in “the most massive use of the federal Anti-Riot
Act yet seen” (National Committee Against Repressive Legislation
1973).
The FBI played a key role during the Wounded Knee occupation.
At one level, this can be explained by the simple fact that serious
crimes on reservations are the preserve of the federal government. As
the agency responsible for the investigation of federal crimes, the
FBI’s presence at Wounded Knee was hardly surprising. Yet while this
explains a particular aspect of the FBI’s presence at Wounded Knee—
to investigate a crime after the fact—a more complex story emerges
when one notes that a significant contingent of FBI agents was in
place on the Pine Ridge Reservation weeks before the occupation
began.
This fact reflects the organization’s twin historical missions. On one
hand, the FBI investigates crimes, by definition after the fact. But the
FBI has also, since its inception, been involved in the more problematic
and overtly political practice of intervening against the potentially
criminal. What this has meant in more specific historical terms is that
the FBI has served as America’s secret police: covertly identifying as
subversive and in many cases actively intervening against those individuals, organizations, and movements it deems a threat to national
security and domestic order. In geographic terms, this has also meant
the definition, management, and control of particular unruly spaces:
labor halls, black ghettos, and, by 1973, Indian reservations (Churchill
and Vander Wall 1988; O’Reilly 1983, 1988, 1989; Potter 1998).
Jumping Scales, Minimizing Visibility: While the FBI had been investigating AIM members for anti-riot violations prior to Wounded
Knee, their efforts stepped up with the occupation. Evidence suggests
that the FBI began with a fairly limited target of investigation. Early
instructions tended to focus on the transport of firearms across state
lines. Yet other instructions, particularly beyond the first couple
of weeks of the occupation, reveal a broader strategy of targeting
any and all support. The timing appears not to be coincidence. The
mediated spectacle of Indians occupying Wounded Knee against the
might of the US state had brought national and international attention,
as well as tangible support. Protests were taking place throughout the
country in support of the occupiers, and people—schoolchildren,
even—were sending food and supplies to Wounded Knee to express
their support.
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The FBI tended to represent this support in quite sinister terms. On
16 March, Acting Director of the FBI L Patrick Gray sent a letter to
Attorney General Richard G Kleindienst, the substance of which he
also relayed to Nixon Domestic Affairs Advisor John Ehrlichman.
This letter explained the national context of support as it related to
Wounded Knee, and began with an observation about “the increasing
buildup of support around the country for the Indians.” Gray continued by explaining the geography of this support:
This support, in addition to generally peaceful demonstrations, which
have been held in approximately 18 cities, is primarily manifested by
an increasing number of reports of travel by dissident Indians and
others to Wounded Knee for the purpose of aiding the Indians there.
If this buildup of support at Wounded Knee continues, and reports
indicate it is increasing, it could represent a serious danger to the
security of Federal authorities and law enforcement personnel on
the scene (Gray 1973b).
Particularly striking was the connection Gray drew between mobility
and threat. The Wounded Knee occupation was not a strictly local
concern, and for the FBI to effectively deal with this fact, its field of
vision needed to extend far beyond the occupation site itself.
Illustrating continuities with the its efforts to subvert the civil rights
and antiwar movements in the previous decade (Churchill and Vander
Wall 1988; O’Reilly 1989), the FBI seemed particularly attentive to
any kind of coalition across racial boundaries. “Black extremists and
revolutionary white groups and individuals,” one note from Gray
explained, “have recently taken active parts in demonstrations around
the country in support of the American Indian takeover at Wounded
Knee.” Given this context, Gray issued instructions “to alert all offices
to this growing involvement,” and to collect information regarding “all
instances of support, financial or otherwise” (Gray 1973d). In particular, Gray suggested agents look to use the legal-geographic tool of
the Anti-Riot Act to preclude such a politics of connection.
According to American Indian scholar and AIM activist Ward
Churchill, the FBI’s expanded use of the H Rap Brown Act came
around 20 March (Churchill and Vander Wall 1988:424 n77).8 A
22 March letter from Deputy Attorney General Joseph T. Sneed
explained quite clearly the logic on which the expanded use of the act
rested. The department, Sneed explained, was “desirous to prevent
subversive elements from supporting the militant Indians” at Wounded
Knee and instructed the FBI “that arrests be made at distant points
where there is probable cause Federal law has been violated” (Sneed
1973a:2). In the words of the FBI’s acting director, “[t]he object” was
“to make lawful arrests as far from Wounded Knee, South Dakota, as
possible” (Gray 1973a:2).
Protest, Scale, and Publicity
731
And the FBI did just that. During the period of the occupation,
more than 50 arrests were made in states throughout the country
(Fishlow 1973). The strategy was quite simple: where probable cause
was established that a group of individuals appeared intent on offering
support to the Wounded Knee occupants, agents were to monitor and
carefully track their movements,9 and to arrest them, as one FBI report
put it, “once [the] vehicle crosses the state line” (Portland 1973). Bail
was also often set high to immobilize potential supporters. When
probable cause could not be established, Gray (1973a:1–2) instructed
his agents that “these groups are [then] to be put under physical
surveillance 24 hours a day.” “[I]n no way was there any indication of
activities illegal in themselves,” one critical press report noted at the
time, “and in every case the only ‘overt act’ was getting on a federal
highway and crossing a state line. As it was, they never did anything
but travel” (Fishlow 1973:12).10
Enlisting the Public: As the FBI continued to investigate and arrest
people throughout the country for violations of the H Rap Brown Act
through the rest of March and into April, however, it encountered
problems. First, the strategy was not entirely successful. Despite use of
the act and other measures designed to limit movement into Wounded
Knee, it remained impossible to completely seal access to the site.
One FBI report noted that members of Vietnam Veterans Against the
War (VVAW) had been successful in bringing supplies to Wounded
Knee, a feat accomplished by minimizing visible travel. The report,
itself the product of undercover investigation, revealed that “supplies
would be transported [to Wounded Knee] by separate passenger
vehicles, rather than using a van or truck which law enforcement
agencies could surveil” (St Louis 1973:1).
A second problem was a legal one. A 25 March federal court order
to allow the occupiers food and supplies had challenged at least the
spirit of the strategy. But the FBI appears to have been unperturbed.
A teletype from Gray, dated 27 March and distributed to FBI offices
nationally, made mention of the court order, yet explicitly stated that
“[T]he court order is not being interpreted as preventing enforcement
of [the anti-riot law] in instances where individuals undertake interstate travel to render personal or material support to the occupiers of
Wounded Knee” (Gray 1973c). The expanded use of the anti-riot law
appears to have violated at least the spirit of the court order, since
both the roadblocks and the anti-riot act were designed to achieve
the same purpose: to limit support for the occupation. Nevertheless,
the FBI continued to investigate and arrest people.
If there was a latent legal tension evident between the federal court
order and the FBI’s use of the H Rap Brown Act, in mid-April this
tension was made overt. On 16 April, five people arrested for
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violations of the act filed suit against the FBI in a federal district court
in Portland, Oregon, claiming “false arrest and conspiracy to deprive
us of our Constitutional rights” (Richmond 1973).11 The American
Civil Liberties Union (ACLU) sponsored the suit, using it as a vehicle
to challenge the constitutionality of arresting and prosecuting individuals under the anti-riot act, and “to deter others [FBI agents] from
such acts” (Remington 1973). At issue, the ACLU explained, was a
Supreme Court interpretation of “a constitutional right to travel
‘uninhibited by statutes, rules or regulations which unreasonably
burden or restrict this movement.’” The ACLU then linked this
argument about the “right to travel” to that of the freedom of speech.
If the architects of the Anti-Riot Act sought to keep people in their
place by erasing the distinction between thought and deed, body and
symbol, the virtual and the material, while collapsing the social into the
individual—and in so doing, turned the resulting legal geography to a
decidedly reactionary end—the ACLU intended to keep these
distinctions alive.
The grand legal confrontation never happened, and both suits were
ultimately dropped. Yet for some senior FBI officials, the lawsuit
raised concerns about the legality of their actions. Referencing the
Portland suit, one such senior official—Mark Felt (1973)—explained
to Gray that
[T]he FBI … is perhaps in an untenable position in arresting individuals far removed geographically from Wounded Knee based on
the information that those individuals are en route to Wounded
Knee for delivery of material to the dissidents there who are defying
federal authority. Because of the very nature of this situation we
necessarily are operating on probable cause that is extremely vulnerable to challenge.
Felt raised broader concerns about the manner in which the Anti-Riot
Act was being deployed. It was the FBI, after all, that was charged
with investigating and arresting people under the act. Further, it was
just these FBI personnel who were now being sued by citizens arrested
under this strategy. Felt (1973) urged: “[W]e should closely re-examine
our position with regard to the arrests of individuals based on information that they are en route to Wounded Knee, particularly as in the
Portland case where the individuals are hundreds of miles from their
alleged destination.” Gray also expressed frustration and concern
over the “extensive expenditure of manpower and that some of the
cases … are being dismissed,” and asked Deputy Attorney General
Sneed “to advise if it desires this Bureau to continue to vigorously
investigate each and every possible violation of the Antiriot Law
statute in connection with the Wounded Knee situation” (Gray
1973e).
Protest, Scale, and Publicity
733
In reference to Felt’s concerns regarding the Portland suit, the
Deputy Attorney General explained to Gray on 16 April “that to avoid
further exposure to civil actions, we will, if circumstances permit, attempt
to secure arrest warrants … prior to making any apprehensions”
(Sneed 1973b). Responding to concerns about manpower and lessthan-vigorous prosecution, Sneed instructed Gray to “continue to
vigorously investigate each and every possible violation of the anti-riot
law statute in connection with the situation at Wounded Knee”
(Sneed 1973c). It “is the Department’s intention,” he explained, “to
vigorously prosecute” such violations.
A third but closely connected problem presented itself the next day.
In the early morning hours of 17 April, three small aircraft, operating
from a “small remote airfield,” successfully evaded the FBI’s national
security net and airdropped food and supplies on Wounded Knee
(Zimmerman 1976). The perimeter established by the state around
the site, of course, offered little resistance to such aircraft, and the
fact that the planes entered the Wounded Knee area at daybreak
meant that federal forces were caught by surprise.
This event highlighted, as the Justice Department put it, the
“unique investigative problem” presented by the “numerous small aircraft … which can operate from small remote airfields” (Department of
Justice 1973). In order to address their concern about small aircraft
that could slip under the eyes of the state, the Justice Department
opted for a change in strategy with respect to its use of the H Rap
Brown Act. In response to the airdrop, and in the wake of the filing
of the Portland lawsuit, the department prepared to go public with its
strategy, which until then had been effective largely because it had
been kept relatively private. On 19 April, the department issued a
news release with the following warning: “Persons who carry food,
medical supplies, ammunition, or any other supplies to South Dakota
by land or air for the use of the riotous occupiers of Wounded Knee
are subject to federal prosecution” (Department of Justice 1973). The
reasoning behind the release was not, interestingly enough, to warn
potentially ignorant citizens of unwittingly violating federal law. Rather,
the intent was to enlist the support of what the release referred to as
“the average law-abiding citizen” in “furnishing information concerning persons and groups moving in aid of the militants at Wounded
Knee.” As it had done so often in the past (Churchill and Vander Wall
1988; O’Reilly 1989), the state cleanly distinguished the deviant citizen,
and sought to use “the public” (constituted by legitimate, “law-abiding”
citizens) as a supplement to the imperfect resolution of its intelligence
gaze. All of this was designed to limit the movement—and hence,
the power—of the “militants” and “revolutionaries” moving across
the nation with reckless abandon. By “going public,” the Justice
Department hoped that a more informed public could help to better
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implement its strategy of arresting people at “points far removed
geographically from Wounded Knee.”
Conclusions: Publicity, Scale and State Power
Despite the change in strategies and the concern about the law’s
legality, however, the FBI continued to use of the H Rap Brown Act
for the next few weeks, and it was largely successful in its goal of
isolating the Wounded Knee occupation site. The impact of the state’s
use of laws such as the H Rap Brown Act had more far-reaching
impacts as well. As Sayer (1997:12) explains, “[T]he government’s
constitutional response to the protest—its decision to prosecute a vast
number of political dissidents—played a significant role in curtailing
the Indian movement in the mid-1970s, not by winning convictions,
but by forcing the political struggle into the courtroom.” Put differently, in its efforts to contain domestic dissent, the state engaged in a
politics of scale that was ultimately effective not only in dissolving the
potency of the protest—which ultimately ended on 8 May—but also in
dissolving AIM as a significant national political force.
In his response to Marston’s (2000) recent overview of work on scale
and her argument for broadening the concept to explicitly address
issues of social reproduction and consumption—and thus to consider
the household as a crucial site of analysis—Brenner (2001:592) expresses
concern about “the analytical blunting of the concept of geographical
scale as it is applied, often rather indeterminately, to an expanding
range of sociospatial phenomena, relations and processes.” At what
point, he asks, does a productive concept get stretched too thin? Against
this, Marston and Smith (2001:615) argue that “[T]he analytical blunting of scale can best be countered through the constant reinvention of
scale theory ahead of the fetishistic juggernaut.” “Scale-making,” they
(2001:617) suggest, “should be understood as an embodied practice
undertaken by social agents themselves shaped by gender, race, class
and geography operating within particular historical contexts.”
Furthering this argument, I would suggest that the exercise of state
power itself might be fruitfully understood from this more processoriented and performative perspective on scale, and in particular, one
that considers the social construction of publicity. The example of
the H Rap Brown Act and its deployment at Wounded Knee offers
some important theoretical insights into the intersections of power,
scale, and publicity. First, it suggests that analyses of publicity and space
must also critically consider the question of scale. While we often think
of what is private as fundamentally microscale—the intimate spaces of
the bedroom, for example, or the home—the case of the deployment
of the H Rap Brown Act at Wounded Knee shows that we must
exercise care in conflating scale and publicity/privacy. If the occupiers
jumped scales by going public, and in so doing drew necessary support
Protest, Scale, and Publicity
735
from elsewhere, FBI officials utilized a rather different strategy: in this
case, shifting the scales of their response in order to minimize the
public visibility of their practices. The use of the H Rap Brown Act
was one way that the FBI was able—in essence, and through its ability
to command national space—to minimize the public visibility of its
spatial strategies and to make them more private. While this was done
in other cases through strategies such as surveillance (which is, after
all precisely about not being seen), with their use of the H Rap Brown
Act the FBI utilized a strategy of quite literal displacement. Arresting
people a thousand miles away from the site of a protest is a far less
public act than doing so in the glare of the media spotlight at the event
site itself, a fact clearly not lost on the FBI.
Even here, however, the use of a privatizing strategy was hardly
absolute. The FBI’s decision to later go public with this strategy was
intended to draw on “the public” in its efforts to stem the movement
of these racialized “rabble rousers” flouting federal authority. This
highlights Staeheli’s (1996:605) argument for the need to think through
carefully exactly how the distinctions between publicity and privacy
are drawn in different contexts, and allows us to “identify spaces,
interests, and actions that are more or less public without implying
that they are either absolutely or ideally public.” This further highlights
that if it is the case that analyses of public protest and space can
benefit from a more nuanced appreciation of scale, it is equally true
that work on scale can benefit from greater attention to the social
construction of publicity. Put simply, who, what, and where is visible
and public, and on what terms? In the case of the H Rap Brown Act,
we see quite clear evidence of how issues of race can become bound
up in the geography of state power. The authors of the act expressed
strong opinions that the unrest that was erupting in the public spaces
of the nation’s cities was deviant and illegitimate. Rather than attending to the social ills contributing to these “riots,” they chose instead to
place blame on a conspiracy of individuals: those mobile outsiders
known to J. Edgar Hoover by the affectionate term of “rabble rousers.”
Between passage of the H Rap Brown Act and its deployment at
Wounded Knee roughly five years later, however, the FBI underwent
a significant transformation, in which its previous power and autonomy under Hoover were undermined.12 Disclosure of the aggressive,
sometimes illegal manner in which the FBI policed domestic political
dissent led to reforms that limited the scope of the organization’s
power (Churchill and Vander Wall 1988, 1990; O’Reilly 1988, 1989).
In the wake of the events of September 11, 2001, however, Attorney
General John Ashcroft has worked aggressively not just to restore
such power, but arguably to extend it. In the context of what is argued
to be unprecedented threat—in which the boundaries between
foreign and domestic have been erased with simple yet bloody
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force—Ashcroft has pushed for similarly unprecedented powers to
respond.
Particularly striking with respect to the concerns I have highlighted
in this paper about the geography of state power is that Ashcroft’s
most controversial actions are perhaps best distinguished by their
antigeography. Suspects and possible informants are held, for
unknown reasons, in undisclosed locations, for indefinite length: in
essence, they are “disappeared.”13 What seems lost in much of what
public discussion of these actions exists is that they are thoroughly
legal—indeed, almost normal—under the statutes written in the wake
of the Oklahoma City bombing in 1995 (see Sparke 1998). Under these
laws, anti-immigrant racism has been fused with domestic-security concerns to allow for the shockingly aggressive removal of the most basic
rights held by American citizens (Bridis and Bravin 2001; McGee
2001; Nelson 2001). The question raised by these measures—whether
in 1968, 1973, or 2001—is not just whether a threat exists and for whom,
but also how such threats are discursively and institutionally constituted,
and to what degree the deployment of state power to counter them in
the “public interest” is subject to the public visibility, accountability,
and debate that are the hallmark of democratic practice.
Acknowledgments
This research was supported by National Science Foundation Doctorial
Dissertation Improvement Grant # BCS-9906888. Responsibility for
the substance of this work is mine alone, however. I would like to
thank Don Mitchell and Lynn Staeheli and the thoughtful comments
of the anonymous reviewers.
Endnotes
1
Stokely Carmichael and H Rap Brown were leaders of the Black Panther Party. The
sponsors of the bill explicitly named a variety of more militant black leaders during
Senate hearings, as well as moderates such as Martin Luther King, Jr. Ironically, the
bill was passed just weeks after King’s assassination.
2
Miller (1997:173) also highlights the distinction between ideological and material
scale, arguing that “The relative autonomy of these two realms … must be stressed;
there is no necessary relation between them, scale or otherwise.”
3
Aitken (2000) has also explicitly linked work on the public sphere and public and
private space with that of scale. “The writings of Habermas and Fraser,” he (2000:
72–73) suggests, “assume a homogenized institutional space for justice … that denies
the practical implications of a social and hierarchical construction of scale that makes
access from one scale to another … difficult.” While his conflation of Habermas and
Fraser seems questionable, Aitken’s suggestion of the need to bring a critical theory of
scale to bear on issues relating to the public sphere shows a clear resonance with the
theoretical argument I present in this paper.
4
Law is but one of a series of fundamentally geographic mechanisms by which
the nation-state is reproduced on an ongoing basis. Scott (1998), for example, argues
that the development of the modern state went along with the development of
Protest, Scale, and Publicity
737
standard measurement systems, modern cartography, standardized languages, the
making and remaking of cities into more regularized spaces, and even, interestingly
enough, the introduction of surnames. All of these measures were designed to make
the space of the state, and the subjects who inhabited them, more easily managed. The
precondition for such easy management was that they could be “seen” by the state.
5
In its 1968 “interview with an authority on riots,” for example, US News & World
Report (1968:38) sought, “in the wake of the riots that rocked cities across the nation,”
answers to two basic questions: “Is full-scale insurrection next on the schedule, [and]
what is being done to meet the threat?”
6
As Potter (1998) explains, the federalization of police authority came in part as a
response to new criminal threats. The kind of public bandits the FBI was initially
designed, in part, to apprehend—the auto bandits who freely crossed state lines and
thus necessitated an equally mobile police force—were themselves enabled by that
same state. Aside from the road network established by the federal state that allowed
relatively cheap and privatized mobility—both important to this new sort of crime—
criminality itself was bound up in complex state transformations. “[T]he elevation of
bandits to a politicized folk status,” Potter (1998:84–85) argues, “can be linked to the
history of … state concentration, capital concentration, and the proletarianization of
labor … [p]recisely because they articulate a prenational past … [and] reject modern,
state-centered political solutions.”
7
The H Rap Brown Act is as interesting for what it leaves out as for what it leaves in.
The “legitimate objectives of organized labor” (so long as “orderly and lawful”) were,
for example, explicitly sanctioned by the act. The authors of the act were also careful
to ease the fears of those concerned that the act constituted a further undermining of
states’ rights already eroded through the civil-rights years. Here, the act made clear
that legitimately state or local violations of law were to remain the province of their
respective legal authorities.
8
Churchill recounts being arrested and jailed in Chadron, Nebraska on 21 March. He
was then “held for approximately 50 hours on a ‘routine warrant check,’ requested
from local police relative to all out-of-state traffic ‘apparently headed to Pine Ridge’
by the FBI.” Upon subsequent release, he “was ordered to drive southward, away from
Pine Ridge, and was followed by a Nebraska state police car all the way to the Wyoming
line” (Churchill and Vander Wall 1988:424 n77).
9
As travel of these groups progressed through different FBI territories, each respective special agent in charge (SAC) was ordered to keep in close communication with
FBI headquarters (in Washington), the Wounded Knee command post, and “each
SAC in the adjoining division which the group is approaching” (Gray 1973a:2).
10
Blomley’s (1994) case study of the 1984–1985 British miners’ strike and the spatial
strategies by which the British state worked to contain the unrest shows interesting
parallels with the FBI’s use of the H Rap Brown Act during the course of the Wounded
Knee occupation. Most striking is that in both cases, law and state power were
deployed in ways that could be described as a strategic use of scale.
11
The plaintiffs in Burgwin et al v. Mattson et al (1973) were arrested as they crossed
the state line from Oregon into Idaho. Another group traveling from Los Angeles was
arrested under the act as they crossed into Nevada. Ideally, I would present a map of
all the arrests made under the act during the course of the occupation. Unfortunately,
I do not have the detailed data necessary for such a comprehensive map.
12
The H Rap Brown Act, interestingly enough, remains on the books. However, I have
only found one instance of a legal case involving it since Wounded Knee. This makes
it difficult to assess where the law really stands in constitutional terms, and why it no
longer seems to enjoy significant use by the FBI and the Justice Department.
13
In turn, this deployment of state power in domestic space has larger geographic parallels. As Butler (2002) shows, the Bush administration has circumvented international
738
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law in its handling of prisoners captured during the course of Operation Enduring
Freedom by working beyond the limits of international human rights law, which is based
on a fundamental discursive distinction between legitimate violence (by definition statebased) and illegitimate violence. The creative labeling of these prisoners as anything
but the legal category of prisoner of war places them both literally and figuratively
“outside the law” (Butler 2002:23), the geographic expression of which is their detainment at Guantánamo Bay, a space both extralegal and territorially ambiguous.
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