Audio By Carbonatix
The drive from Phoenix to Safford can take three and a half to four and a half hours, depending on the traffic and your respect for speed limits. Not because it’s that far; it’s well under 200 miles. But the roads are narrow and treacherous, and the speed limits consequently low.
I leave at 9 and get there just past noon, nearly 90 minutes before the scheduled start of the trial of Wendsler Nosie.
Take one look at Safford, and you can understand why the locals favor development and are so hostile toward environmentalists. The place is a hole. It doesn’t have the sort of small-town character found in places like Superior, Miami or Globe. It’s just a dump with nothing going on.
I drive around the town, which lies in the shadow of Mount Graham, looking for a cafe where I can get some tea. I don’t see anywhere that looks promising. So I get back on the highway and find a Jerry’s.
And it’s lucky for me that I do. Standing near me is a group of Native Americans and white guys in suits, talking in lawyerspeak. They’re Wendsler Nosie, his friends and attorneys. They tell me that the time of the trial has been brought forward, and is now set for 1 p.m. rather than 1:30.
Over at the Graham County Courthouse, the small room where the trial is to be held is busy. Judge Linda Norton appears, and expresses concern about the number of people present. “This is in breach of fire regulations,” she says crabbily. Prosecutor Alan Perkins apologizes to her, saying it didn’t occur to him that so many would show up. “You couldn’t have known,” she tells him.
But she’s wrong. He could have known, and should have. Plenty of other people knew beforehand that it would be busy. And neither judge nor prosecutor knowing is evidence that they don’t understand that many people consider this case to be an important one.
For the state, this is just a trial about a Class 3 misdemeanor, criminal trespass.
For the Native Americans, it’s a case of major cultural and religious significance, the outcome of which will have consequences that will reach far beyond this one individual.
For environmentalists who oppose development atop Mount Graham, it’s another chance to demonize the University of Arizona, which, despite fierce opposition from Indians and environmentalists, has managed to get telescopes built atop the 10,720-foot peak.
It’s unlikely that any of this is on Judge Norton’s mind as she moves the trial to a larger room in the basement of the courthouse.
Here are the facts of Wendsler Nosie’s alleged crime: On August 30, Nosie [pronounced NO-see], a former San Carlos Apache tribal councilman, climbed Mount Graham, a site sacred to traditional Apache.
He says he’d had a vision, and God had told him to go up there to pray for his daughter’s passage into womanhood. When he realized a storm was brewing, he decided to get off the peak as quickly as possible. So he walked down the nearest road, which he says wasn’t the route he had taken on the way up.
Nosie was on an access road which has signs, posted by the university, reading “No Trespassing.” But, according to Nosie, since he was walking down the hill, the same direction the signs face, he didn’t see them.
He was stopped by two forest rangers. They told him he was trespassing, but they didn’t bust him. Instead, they called the UofA police. The officer who responded, Lance Lines, cited Nosie for trespass.
But trespass really doesn’t seem to be the issue in this trial. At least, not the major issue. It must be frustrating for prosecutor Alan Perkins, whose point seems to be that, whatever the political and cultural controversies, this trial is about whether Nosie did or did not knowingly walk on a road he wasn’t allowed to walk on.
Nosie’s attorneys–William Foreman, Jeff Bouma and Gil Venable–respond to this by arguing that the UofA doesn’t have the legal right to keep people off the road, or even to post “No Trespassing” signs. They also say that since Nosie didn’t see the signs, he couldn’t be guilty of trespass, because you have to know you’re doing it to be guilty. Perkins argues that the university does have authority to put up the signs, and accuses Nosie of knowing exactly what he was doing.
But these legal arguments are pretty much beside the point. Today this courtroom isn’t just the scene of a trial; it’s a political forum. And while the philosophical debate is fascinating to listen to, it doesn’t seem to have anything to do with the charge. Nosie isn’t charged with praying. In fact, he isn’t even charged with trespassing on Mount Graham’s Emerald Peak, where the telescopes are. He admits he was there, but that’s not where he was found. What he’s charged with is being on a road that’s not open to the public.
Today Linda Norton isn’t merely the judge at a minor trial; she’s the chairman at a political meeting.
Nosie’s attorneys are more interested in this political discourse than in defending their client against the charge he’s facing. For the most part, Foreman, who’s brought his young son along, wants to talk about the political and religious significance of the trial. The defense strategy seems to be to try to convince the judge that convicting Nosie could have unpleasant repercussions in the Native American community, rather than to make any real effort to convince her that he’s innocent.
At the beginning, Foreman declares that his client “went to a sacred site, said a prayer to God, and came back down,” and that this is what he’s on trial for. He adds that state law guarantees that “perfect toleration of religious sentiment shall be secure to every resident of this state.”
Essentially, the state and the defense are arguing different cases, and the witnesses each side calls reflect this. First up for the state is Carrie Templin, the forest ranger who found Nosie on the road and called the UofA police. She clearly doesn’t want to be here today; she’s lethargic and unhelpful when questioned by Perkins, and sarcastic and hostile when questioned by Foreman.
It’s easy to read between the lines of her testimony: She found a Native American whom she considered to be trespassing, but she knew she’d be opening a can of worms if she cited him. So she passed the buck to a young UofA cop who didn’t know any better.
This becomes even clearer when the cop, Lance Lines, is called. Young, blond, crop-haired and blue-eyed with an arrogant, yes-sir manner, if he wasn’t a cop, he’d be a prime candidate for the job of village idiot. He can barely talk in complete sentences. He mispronounces Nosie’s name, at first calling him “Mr. Noisy.” Then, even though Perkins pronounces the name correctly again and again while questioning him, he still can’t get it right. Instead, he keeps referring to “Mr. Noise.” It’s hard to tell whether he’s doing it on purpose.
He admits that his memory of the incident might be faulty, and says his written report is more reliable, because “it was wrote [sic] right after the incident happened.” He says he wrote the report from memory, without taking notes. He talks about his “reculation,” which seems to be an attempt to pronounce “recollection.”
When asked what he was doing on the mountain that day, he says he was “doing surveillance,” but isn’t sure what he was supposed to be looking for, just that “it’s part of our duties.”
When asked if he knows that the UofA’s authority on Mount Graham comes from the federal government, he first says he doesn’t understand the question, then admits he doesn’t know.
Foreman suggests that Lines cited Nosie because there were environmental activists on the mountain that weekend, and Lines presumed he had links with them. Lines denies this, but he has admitted as much in an interview with Foreman.
After Lines’ testimony, Foreman asks the judge that the case be dismissed, saying that the state has failed to provide a “burden of proof.” Judge Norton denies the motion.
The defense witnesses don’t refer to Nosie’s guilt or innocence. They’re Native American intellectuals–one a medicine man–who talk about the religious importance of Mount Graham. One of them, a young man named Bradley Allison, says, “Mount Graham is the center of our existence as a people.” He says that Nosie is a “leader, teacher and spiritual person.”
Bouma argues that a conviction in this case will have “a chilling effect” on the Native American community.
When Nosie himself is called, he looks good at first. An elegant man dressed in black pants and a long black coat, he answers questions quietly and thoughtfully. But, under state questioning, he hurts his credibility by claiming he had no knowledge that the government wanted to restrict access to certain areas of Mount Graham, something a Native American activist like Nosie could hardly have failed to know.
He also doesn’t help his case with his more-spiritual-than-thou attitude toward Perkins. “I know it’s hard for you to understand,” he says whenever Perkins questions him about the religious necessity of being on the mountain. He depicts the Apache as a race of benevolent mystics. “We’re a vision people,” he says. He claims to be responsible to a higher power than the court. When Perkins asks him if he’d break the law if God told him to, he answers, “That’s right.”
A tense moment comes when Nosie tries to distance himself from the white environmental activists in the room. He says that although he doesn’t like the observatory being on Mount Graham, it’s not for man, but God, to deal with.
“Environmental people are more political,” he’ll tell me afterward. “They can be destructive to things. Us, as human beings, are not going to destroy anything. We call on supernatural powers to do it. If we do physical damage, God will punish us.” So, presumably, God will punish the environmentalists who’re trying to jump on the politically powerful Native American bandwagon.
In closing argument, Perkins tells the court that freedom of religion doesn’t go as far as allowing people to break the law. He stretches things by comparing Nosie’s alleged trespass to murder or drug-taking, declaring that you couldn’t get away with those just because your religious beliefs made you commit them.
Foreman concludes by asking the judge again to consider the effects of a conviction, saying that “people will be afraid to pray.” Astonishingly, he calls Nosie “a simple fellow” and the Apache “simple people.” None of the Apache present seems to react badly to this.
“Good speech, Dad!” his son calls to him when he finishes. It is and it isn’t; although much of his rhetoric is stirring, it’s hard to see its relevance to the trial.
Judge Norton announces that she’ll render her verdict in writing. As New Times goes to press, it’s yet to be delivered.
Contact Barry Graham at his online address: bgraham@phoenixnewtimes.com
