(concurring in part, dissenting in part).
Although I join in that portion of the majority opinion that holds that condition number 4 of the bail order is . not an unconstitutional infringement of defendant’s constitutional rights and that defendant’s violation of condition number 8 would not of itself justify revoking defendant's bail, I would not revoke defendant’s bail for his violation of condition number 4, given the circumstances of this case.
Assuming for the purpose of this proceeding that the trial court intended to prohibit defendant from participating in peaceful activities of the American Indian Movement out of a well-founded concern for the public safety that defendant’s mere presence at and participation in such activities might provoke violent responses, either from members of the organization or from those who might be opposed to such activities, did defendant by participating in the Sisseton meeting forfeit his right to remain on bail pending determination of his appeal? As the referee pointed out in his report, that is a question that must be answered by this Court, and a question on which the referee expressed no opinion and made no recommendation.
With due consideration for all of the factors that a court must weigh in determining whether a defendant who has been released on bond pending appeal should be remanded to custody, I would hold that defendant’s participation in the meeting at Sisseton on November 1, 1976, does not mandate that his bond be revoked. My decision is based upon the fact that the meeting was orderly, peaceful, and — -in the opinion of the one person who was in the best position to evaluate the total situation, the Roberts County State’s Attorney=usoful. True, there was the march to the city hall, accompanied by the beating of a drum. This no doubt gave rise to heightened tensions in a community already tenso as a result of the apparently violent incident at the bowling alley that led to the arrest and incarceration of six Indians. Although the march might have led to the type of violent confrontation that marked the incidents at the Custer County Courthouse in February of 1978 and at the Minnehaha County Courthouse in April of 1974, the fact remains that no such violent confrontation occurred.
If I were convinced that defendant’s participation in the events in Sisseton was the result of a studied, deliberate plan to flout the trial court’s order for purposes unrelated to the achieving of any peaceful, ameliorative goals, then I would wholeheartedly join in the opinion to revoke defendant’s bond, for if we were faced with a deliberate, contemptuous violation of an eminently reasonable condition of bail by one who has been shown every consideration the law affords, we would of necessity vindicate the trial court’s order by revoking bail. It may *603be that defendant’s conduct was motivated by an attitude of cynical defiance. Perhaps our remand for findings should have included a request that the referee make a recommendation whether or not bail should be revoked, for such a recommendation would have been highly persuasive to me, based as it would have been upon the referee’s opportunity to judge defendant’s demeanor and attitude. As it is, we have only the cold record before us, a record that fully supports the referee’s finding that defendant’s participation in the events at Sisseton constituted a violation of condition number 4 of the bail order, but a record that leaves me with the impression that the violation, although deliberate, was one that occurred in the course of a good faith attempt to avert what might otherwise have resulted in a violent confrontation.
We have witnessed a turbulent period in our state’s history during the past four years. At least two of our courthouses have been damaged through violence. Tensions between Indian and non-Indian citizens have run extremely high at times. Hopefully, the days of violence are past, never to be repeated. This period has been a difficult one for our law enforcement agencies and our judicial system, for our legal system is premised upon the assumption that the resolution of social grievances and disputes and criminal charges will be determined in an atmosphere of studied deliberation and calm. If we have learned anything from this period of strife and tension, it is that our system of government can exist successfully only in an environment of peace and in a spirit of mutual understanding and rational discussion.
It is because I place such a high premium upon peace and nonviolence that I would hold that defendant’s participation in the events at Sisseton on the day in question does not warrant the revocation of his bond. To hold otherwise would be to vindicate the provisions of the trial court’s order at the price of penalizing interests of our society which are far more important than the matter of defendant’s incarceration for participating in a peaceful, useful discussion with law enforcement officers concerning what defendant and his colleagues apparently perceived to be legitimate grievances with local conditions in Sisseton.
It would not necessarily follow from a decision not to order defendant remanded to custody that condition number 4 of the bail order need be stricken as an unconstitutional infringement upon defendant’s freedom of association, speech and travel. As indicated in the majority opinion, it is clear that defendant has been involved in at least three incidents in which members of the American Indian Movement have been involved in violence. Defendant was charged with and convicted of a crime of violence in North Dakota, albeit a relatively minor charge as it ultimately developed. Moreover, it is apparent from the briefs and from defendant’s testimony at the revocation hearing that, rightly or not, defendant’s name is synonymous with that of the American Indian Movement and that wherever he goes defendant is immediately recognized as the leader of that organization. In addition, we would be blinking at reality if we did not acknowledge the fact that it is a matter of common knowledge that defendant has been the subject of widespread publicity concerning his involvement with the American Indian Movement and its causes. The trial court was no doubt understandably and justifiably concerned with the potential violence that defendant’s mere presence at the scene of any American Indian Movement activity might precipitate. Given the history of defendant’s involvement with activities that later resulted in violence, the trial court was well within its discretion in imposing condition number 4 in the order admitting defendant to bail, and I agree that that condition need not be stricken from the order. If defendant was being truthful and sincere in his testimony at the hearing that he had faithfully tried to comply with the terms of that condition by informing his audiences during his travels that he was not appearing as a representative of the American Indian Movement, then surely he would not find it unduly onerous to continue to refrain from participating in American Indian Movement *604activities during the continued pendency of his appeal.
Although some might interpret a decision not to revoke defendant’s bail as condoning violations of the conditions of bail orders, such is not the intent, nor do I think would be the effect, of such a decision, for the statute itself contemplates that it is not every violation of the terms and conditions of bail that will result in an order of remand to custody. If SDCL 23-51-14(2) requires the exercise of judicial discretion in determining whether bail should be revoked, and I believe that the statute admits of no other interpretation, then to revoke defendant’s bail in the instant case would be to apply the statute in a mechanistic fashion, one that would be contradictory to the values of peaceful, nonviolent assembly held to accomplish the orderly redress of grievances. I pass no judgment on defendant’s overall role as a leader of the American Indian Movement. It will remain for the sweep of history to determine whether defendant was a charismatic, unselfish leader who courageously sought to redress what he perceived to be the wrongs suffered by his people, or whether he was merely a cynical opportunist — a peripatetic gadfly who flitted about the state, the nation and the world at others’ expense, leaving his brothers behind to reap the whirlwinds sown by his actions. Whatever the ultimate judgment of time, in this one instance I would hold that defendant’s role in the events of the day does not warrant the revocation of his bond.