THE RECORDER
The Bay Area's Legal Newspaper Since 1877
February 6, 1997
The Takeover of "The Rock"
In November 1969, a group of Native American activists pulled off one of the more unusual high‑profile protests of the era: a takeover of Alcatraz Island, asserting rights to the federal land under a 100-year-old treaty with the U.S. government.
Over the next l9 months, the daring move captured worldwide attention and
drew public support for the Indians' cause. But it was fraught with legal and logistical problems.
One of the people who helped sort out the issues over the Alcatraz occupation was Berkeley's Donald Jelinek, who at the time was a 35‑year‑old civil rights attorney. In today's installment of War Stories, a series featuring interviews with lawyers, judges and others who helped shape notable events, Jelinek talks about his role in the Alcatraz standoff.
Jelinek lived on the island during the occupation, advising the Indians of their rights, helping them raise money and negotiating with federal officials. Then, after U.S. marshals swept in and removed the occupiers in June 1971, Jelinek defended a trio of Indians against minor theft charges.
"[I was] in contact with the U.S. attorney on a regular basis. They obviously thought it was a good idea that I was there," Jelinek recalls. "I felt that as a lawyer I was doing what a lawyer should do to stabilize a very volatile situation."
WAR STORIES
A BRIDGE BETWEEN NATIONS
A Berkeley attorney held the trust of both sides during Indians' takeover of Alcatraz
Every year, thousands of tourists take the 15‑minute ferry ride to Alcatraz Island for a look at the crumbling federal penitentiary that once housed Al Capone and other notorious crooks.
But 27 years ago, "The Rock" became a potent symbol for a very different reason when a group of Native Americans seized control of it to dramatize the U.S. government's broken promises to their people.
After several failed attempts, a group of 14 Indians landed at Alcatraz on Nov. 9, 1969, and claimed historic rights under a 100 year‑old treaty. What began as a publicity stunt, however, escalated into a 19‑month occupation that drew thousands of participants and became the main event in the budding Indian nationalist movement.
As the number of participants multiplied -- an estimated 50,000 Indians from across the nation came to Alcatraz over the course of the occupation -- so did the logistical, administrative and legal questions: How would the Indians support themselves? How would they negotiate with federal officials? Would they be prosecuted?
One of the people they turned to for advice was Donald Jelinek, a 35‑year‑old attorney from Berkeley. Jelinek, a former Wall Street lawyer and Alabama counsel to the Student Nonviolent Coordinating Committee, had met many of the Alcatraz Indians while working with California Indian Legal Assistance. He arrived at Alcatraz on Thanksgiving Day, 1969, and after a long night of talks agreed to represent the Indians. Initially, he was asked to advise them of possible defenses against potential federal trespass charges. But within a short time he took on much larger responsibilities and moved to the island full time.
One of his key roles was negotiating with the U.S. attorney`s office, the FBI, the Coast Guard and other agencies. The occupation had become a cause celebre, generating worldwide support. Given the civil unrest of the '60s, and turmoil over the Vietnam War, authorities were reluctant to provoke a violent confrontation by forcefully removing the Indians.
"The federal government needed somebody that looked like them that they could talk to and that would ease the pressure for them not to take political action," Jelinek says today. "If they could send a report saying, "We spoke to this lawyer who has a suit and a briefcase and is licensed,` [the negotiations weren't taking place] in a vacumn."
Jelinek was also the Indians' chief fundraiser, negotiating publicity deals and hosting a parade of celebrity visitors to the island, including Anthony Quinn and Ethel Kennedy.
"It was incredibly exciting to be part of building a new society -- not that anybody thought this was a utopia," Jelinek recalls.
The occupation was triggered by a government plan to sell the island for development, but its broader purpose was to provide a platform from which the Indians could broadcast a wide array of grievances about government housing, education and poverty on reservations.
The Indians claimed they deserved title to Alcatraz under an 1868 treaty that said Indian lands, once abandoned by the federal government, would revert back to the Sioux Nation. The government refused to recognize this agreement, however and the siege continued as the Indians rejected offers of a five‑year lease and a museum.
"For them, the worst thing they could do would be to accept the lease because they would once again give up sovereignty," Jelinek says. "And that was what the whole battle was about."
While Alcatraz quickly became one of the most important of the Indian occupations to sweep the nation in the 1970s, the invasion itself crumbled under the weight of logistical problems, power struggles and a general breakdown of order.
With dwindling numbers of Indians camped out on Alcatraz, the feds finally took action to end the standoff on June 11, 1971. Coast Guard cutters sealed off the island and marshals met no resistance as the last of the occupiers were removed.
Fearing a trial that would further politicize the issue, authorities never prosecuted the Indians for trespass. Instead, they indicted three of them for stealing $600 worth of underground copper piping.
Jelinek lost at trial and his clients were sentenced to probation, but the convictions were later overturned on appeal.
In this interview with free‑lance writer Jorge Aquino, Jelinek, now 62, talks about the fine line he walked at Alcatraz between advising a client and becoming a participant in what officials viewed as a federal crime.
Recorder: What sort of involvement in Native American issues did
you have by the time of the Alcatraz occupation?
Donald Jelinek: A year and a half prior to that, I had come from Mississippi [having done civil rights work]. I'm a New Yorker. l'm not licensed here. The only kind of law I can practice prior to passing the [California] Bar is in the federal courts. So I applied for a position in California Indian Legal Services, because all the work is in federal court. I spent a year and a half working for many Native
Americans and almost all of them became the Alcatraz Indians.
Q: How did your involvement as their legal counsel on the island begin?
A: As soon as they got [to Alcatraz] somebody came back and told me that they wanted me to come out and advise them. It wasn't easy getting out to the island; the Coast Guard had formed a blockade. But the mariners from Sausalito would run the blockade and they'd be arrested. [Federal officials] were now arresting the cream of Bay Area society -- not the kind of people they wanted to put in jail. So the feds decided to stop the blockade. This was all happening in these days prior to Thanksgiving [1969 -- the day I arrived on Alcatraz]. We had lots of very good food and the medicine man did a prayer and it was a very moving experience. They gave me a tour of Dillinger's cell or Capone's cell and then we went to one of the caretakers' rooms and talked for a number of hours.
Q: What were their legal concerns?
A: Obviously the issue was, is this a crime? I gave them the full
gamut from the worst to the best; the worst being [charges of] federal
trespass worth a couple of decades in prison theoretically. [A defense to that would be] that the Indians either have a right to be there or think they have a right to be there. At that point they asked would I be their lawyer and I agreed. So that began a 19 month representation of them.
Q: The Indians weren't charged with any crimes until after the occupation ended. So what did you do for them in the meantime?
A: It cost $3,000 a week to maintain the island. That was one of my primary jobs: I had to raise $3,000 a week. Every bit of it was [for] food and medicine and fuel for the boat and clothing and blankets and bedding. It was an entire community. On Thanksgiving Day there were about 170 people living there. At times it went as high as three, four hundred people. Over the 19‑month period, probably 40,000 to 50,000 Indians had visited there from all over the world: it was almost like Mecca. In the beginning, people just brought everything out. But as time went on, that diminished and we needed hard cash -- especially as the population increased.
Q: At some point, you actually decided to move to the island?
A: In a very short period of time, the Credence Clearwater Revival called me up and they said, "What do you need'?" And I said, "We need a boat badly. We can get one for $1,000." That afternoon somebody brought me a certified check for $10,000 and we bought a boat which we named "The Clearwater," and then we had total freedom back and forth. So I would commute on a regular basis. I would come in the morning and leave in the evening. After a while, I was there so often that it didn't pay to go back that night or the night after. Before I knew it, I was there most of the week.
Q: l guess I had this image of you living in a tepee with a fire burning outside.
A: No, I had a lovely apartment that was one of the caretakers' apartments. It had a cot and overlooked the bay. Of course, you always overlooked the bay, no matter where you were. I could see the Ghirardelli Square signs at night. The Hilton it wasn't, but there were a lot of rooms. They must have had two or three hundred prison staff and they had apartments. They were all in good condition.
Q: What kind of governance did the Indians have?
A: Alcatraz set up a police force and set up its own laws. One of its first laws was that alcohol was illegal and marijuana was legal. If you were caught drinking once, you were given a warning; twice, you were suspended for a week; three times, you were banished. Anyone who came on the island was searched and their luggage was searched for alcohol. These Indians recognized the price they've paid for alcohol over the years.
The [Indians' governing] council was a council of the whole. Everybody over 17 could vote and everybody could speak -- including children. Very often children were asked their opinions on things. And there'd be a meeting every Friday night, officially. But in fact, there was a meeting every night in the kitchen and every issue of the day was discussed and voted on.
Q: As the occupation wore on you took on a role beyond representing the Native Americans in federal court. Not only were you the functioning general counsel, but it sounds as though you were chief financial officer as well.
A: I was definitely the chief of bringing in finances. That was a big part, but there were little parts. First of all, the council asked: Could you bring a lawsuit for our rights to the land? I had thought about this beforehand and talked to some other lawyers and came to the conclusion that this would be the most foolish thing to possibly do. There was no way that a sovereign could give up land. And [a lawsuit] would just put the Indians in a defensive posture and it would be the
worst position to be in. So after many days of talking about it, I did prevail on that one.
And then people would get arrested on the mainland [San Francisco] on anything from having a fistfight [to being] drunk and disorderly. I would try to get somebody to handle it, but if it was somebody who was prominent on the island, I would handle it myself.
One of the cases was rather serious. A guy had somehow taken a gun away from someone else and then got [arrested] because he was in possession of a gun. So he was brought before the court. The judge was enormously sympathetic to the Alcatraz Indian cause.
Q: Who was the judge?
A: I think it was [the late Joseph] Kennedy, who was a new young black judge on the San Francisco municipal court. In the audience watching were some people from the island, including a couple who were from our [island] police force. So I said [to the judge], "How about if he pleads guilty and he's sentenced to
house arrest on Alcatraz Island in the custody of the Alcatraz police?" I expected a big guffaw, but he really liked it. So he asked [the Alcatraz policemen wearing a form of uniform] to stand up. He swore them in and [made them promise to] take responsibility to see that [the suspect] would
not leave the island for two months, after which time he would come back and [the judge] would make a decision on sentencing.
Q: The Indians decided to incorporate. Their corporation was named Indians of All Tribes Inc. Why did they do this?
A: At first we had glorious pipe dreams where we would form this nonprofit corporation and with it would come the lease. There would be funding and the feds would sort of recognize us after awhile. It was a very naive approach, but that was the initial reason for it. It was only after we were drawing it up that we began to realize the significance of asking to have something incorporated that was potentially part of an ongoing federal crime. [The incorporation papers] hung out in Sacramento for quite some time before [the secretary of state's office] would sign off on it. We never raised a dime because we had a corporation. But it did create another shield of legitimacy that actually made me feel more secure. I had gone to a lawyer myself -- Charles Garry`s firm, he and [the late] Frank McTernan -- to ask what my status was. This [would be similar to] a bank robbery going on where you bring your lawyer in and ask: "What if I keep my gun in my pocket and don't wave it at anyone. Is that better'?" l wondered if [my role on Alcatraz] was that. And [the other lawyers] didn't have the slightest idea. They said they had never heard of anything like this that was ongoing. So it always was on my mind. The articles of incorporation was a piece that made me feel more comfortable.
Q: How did that protect you?
A: I had a corporation that I was working for that was recognized by the state of California.
Q: It sounds pretty thin.
A: It's very thin. But given that I didn't have anything, it was nice to have something [to help legitimize my legal work].
Q: Tell me about some of the deals and transactions you worked on to raise money.
A: ln the same way that all of the wonderful people were bringing food and gifts out to the island, everybody who had a hustle also came out to the island: they had a song; they had a postcard; they had a movie to make; they had a rock band to perform. Everybody wanted a piece of the action. Not one penny came from any of those little projects. The real money, big money, came from the Hollywood people. Two in particular -- Candice Bergen and Anthony Quinn -- who each were doing Indian movies at the time. Their public relations people wanted them to have publicity shots on the island with the Indian at the tepee, with the medicine man, you know.
I cannot remember the dollars at this point, but we charged them an arm and a leg. In fact, I was hinting about numbers with Anthony Quinn and he says, "You're small time. They got big money." He told me how much to ask for. They had it to burn and we let them burn it with us. We didn't get enough to get us past two weeks, so it had to be under $6,000. But for a 15‑minute photograph, that was very good pay.
The Japanese and German television stations literally wanted to live on the island. They had daily feeds and they paid the most money. It was almost a monthly stipend. Then there were people like Ethel Kennedy, who came out and gave money. She brought television sets and clothing.
Then there's the Ironside [television episode] story. To this day it eats my heart out. Ironside was played by Raymond Burr. He's a crippled police detective in a wheelchair. The story line was that he would go to the island to seek out a criminal and he had to bring that person back. But when he got to the island, the Indians would not let him take the prisoner back. So they put [Ironside] in a boat to take him back to the mainland. [Halfway back] he throws himself off the boat to show his courage -- that he's prepared to drown if they won't bring him back [to let him take the prisoner]. So [the Indians] appreciate his courage and are [persuaded] to allow the Indian prisoner to return with him.
[At the end of the show], we would get 60 seconds to make our own political commercial. And this was big money. I can't remember, but it was a couple of mouths worth [of support for the island]. And [the Alcatraz Indians] turned it down flat. They said they would look like fools: "This white cop throws himself in the bay and suddenly we're drooling all over him?" They weren't buying it.
Q: What role did you play in negotiations with the government?
A: That was probably my major, serious role. The federal government needed somebody that looked like them that they could talk to and that would case the pressure for them not to take political action. If they could send a report saying, "We spoke to this lawyer who has a suit and a briefcase and is licensed," [the negotiations weren't taking place] in a vacuum. That was quite important. For example, there was a crime on the island -- an alleged rape. The U.S. attorney sent for me to ask permission to have the FBI come on the island. I met with the council of the Indians; they agreed. Then to everybody's surprise the Alcatraz police force insisted on frisking the FBI agents. [The FBI agents] went crazy and refused and got in their boat and left. Later on, we did surrender [the suspect] and he was in a lineup and [not selected]. But that was an example where if [the FBI] couldn't even get out to the island at all, the pressure would be even greater [for some sort of government action against the occupation].
Q: Throughout all this, you're in a very curious position. Did you feel at times that you had crossed the line ‑ either by breaking the law or by violating your ethical obligations either to your clients or to the government?
A: Putting aside, if one can, that sensitive area of aiding a client in the commission of a future crime, I felt that I was a positive force out there ‑ and so did the federal government. Every day I took the boat back to the mainland I could have been arrested by the Coast Guard. Everybody knew I was doing this. [I was] in contact with the U.S. attorney on a regular basis. They obviously thought it was a good idea that I was there. So I felt that as a lawyer I was doing what a lawyer should do to stabilize a very volatile situation.
Q: Did your negotiations with the government get anywhere on the issues of deeding the island to the Native Americans or setting up an Indian cultural center?
A: The feds desperately needed to save face. They needed a resolution and they tried to offer a five year lease, and a quarter million dollars to set up a museum [on Indian culture]. [The lease would be] up for renewal after five years. Any business client I had would jump up and down for a deal like that. [The government] would just look away once they could say "now we're in control and [the Indians] recognize it." It was theoretically perfect.
The problem was the Indians were coming from the exact opposite perspective. For them, the worst thing they could do would be to accept the lease because they would once again give up sovereignty. And that was what the whole battle was about. They wouldn't even accept a deed; the U.S.government was going to have to say that [it] recognizes their inherent right to the land under the treaty of 1868. Of course,that's all the feds need -- to start acknowledging Indian treaties. Next they'll be giving up New Mexico and Las Vegas and everything else. So they were truly polarized beyond resolution.
Q: Federal marshals invaded the island in June 1971. But the U.S. attorneys office didn't prosecute the Native Americans for trespassing on a federal installation. Why not?
A: They decided to charge three of the men who had [dug up and sold] copper piping. The government was afraid of [bringing] federal trespass charges. That would open up the whole history of American-Indian relationships.
Q: What would the defense have been to federal trespass charges? The treaty of 1868 was between the United States and . . .
A: . . . the Sioux Nation. The [United States] may take [Alcatraz]. But if the land is abandoned, it is supposed to revert to the "Sioux." It's not necessarily that any [jury] would have agreed with this, but you very well could have had a jury nullification. That would have been very embarrassing [to the government]. Also, it would have encouraged a great deal of affirmative litigation [from other tribes over broken treaties]. So they chose to paint the Indians as a bunch of crooks: "They took $600 worth of copper." What a much less noble endeavor
Q: You lost the case at trial.
A: It was absolutely clear that the feds did not want to send them to jail. My clients, on the other hand, were totally convinced that they were going to prison for 10 years. So one of them called me up to say that they're not going to show up in court on the day of the sentencing. They were going to jump bail and hide out.
I knew all their girlfriends and wives. I immediately called one of them up and said: "Why don't you just tell them that they owe it to me to come to a farewell party. I've done all this work for them; the least they can do is to my face say good‑bye."
She understood where l was coming from. So we got them to come over with the girlfriends and other people and we drank and drank and drank. Finally they just passed out. And the next day, half unconscious, we dragged them into court and they got their probation. That's how we kept them from fleeing.
Q: What happened to your law practice at this time. We you getting any fees out of this Alcatraz work?
A: I was dying during this period. The business I had I didn't have time to do. Of course, it didn't cost me an awful lot to live. It was so invigorating out there that I didn't do much entertaining and other than some fixed expenses, like rent, I almost didn't need any money.
Q: What was the upshot for your career after having served as general counsel, so to speak, for Indians of All Tribes Inc.? You must have had a helluva reputation at this point?
A: Fortunately, [my reputation] was mostly in San Francisco and it was easier to function in Berkeley. The problem was as much my getting back to mundane work.
Q: The glamour of life had suddenly disappeared?
A: I was also depressed. My friends were all gone now and I missed them. I certainly lost all the clients that I had built up -- appropriately, since I hadn't stuck around to take care of their legal services. I was very popular in the Berkeley community, which meant all the nonpaying [public interest] work now came to me. It probably took a good year and a half to stabilize a practice and get things normalized.
Q: You worked with the Indians for 19 months, you weren't billing for this and your practice fell apart after that. Why would a talented attorney choose to live on Alcatraz and work pro bono for almost two years?
A: I can't imagine why one wouldn't. You can be in a position in your life where you have a mortgage and you have expense obligations but I was just out of the South; I wasn't really set up yet. I was in flux, missing enormously the life of a civil rights worker that had been so fulfilling to me. And this came along and I just [felt] -- as Lou Gehrig said -- like the luckiest man in the world to have the opportunity.
Q: Why was it so appealing?
A: It was that a society was actually being set up from scratch: laws were being created; a police force was created; a government was created. It was incredibly exciting to be part of building a new society -- not that anybody thought this was a utopia. The Indians themselves were very exciting people. They were like the young civil rights workers -- they were on the threshold of something brand new and I couldn't get over the excitement. It was just the ultimate high.