(concurring in part, dissenting in part).
I concur in that portion of the majority opinion that holds that the defendant’s violation of condition number 8 would not justify revoking defendant’s bail. However, I respectfully dissent from the balance of the opinion. I join Justice Wollman in the result of his dissent for all the reasons given for not revoking the bail of the defendant. His appeal to reason premised on the peaceful, useful discussion at the Sisseton meeting appeals to me far more than any side remarks of Bill Means, quoted in the majority opinion, which were not joined in by or otherwise attributable to the defendant.
The order admitting defendant to bail set out nine various conditions summarized as follows:
(1) Fixed bail at the sum of $2,000.00;
(2) Required that the defendant obey all laws of the United States and any of its member states or their subdivisions;
(3) The defendant waive extradition;
(4) That the defendant will refrain from participating in any American Indian Movement activities except fund raising, International Indian Treaty Organization, and activities within the courts;
(5) That he report by telephone or in person to a court service worker at least every fifteen days detailing his plans for the ensuing fifteen days and such other details as the court service worker shall require;
(6) That at least every sixty days he personally present himself at Sioux Falls to the court service worker to make that report and to make himself available to such questioning as the court service department wishes to make of him;
(7) Bail is subject to revocation if he is held after either preliminary hearing or grand jury indictment to answer any criminal charge arising out of any occurrence after release on bail;
(8) Bail is subject to revocation if he is convicted on any criminal charge pending against him at the time of release; and
(9) That he will refrain from consumption of alcoholic beverages.
With respect to the first instance of violation which arose when the defendant “copped a plea” to an insignificant misdemeanor charge and thereby secured dismissal of a major felony charge in North Dakota, I agree completely with Justice Woll-man’s disposition of that supposed violation.
The second violation is obviously more serious and requires some consideration of the background under which the condition was imposed and the change in the situation, if any, which has occurred since that *605time. Here again, I agree with Justice Wollman as to the result attained in his ' reasoned appeal for judicial restraint in this instance. However, I would go one step further for I cannot agree that condition number 4 is constitutionally valid.
Bail pending appeal is not a matter of unqualified constitutional right. However, where a right is created by the state legislature it may not be arbitrarily or discrimina-torily denied without running afoul of the Fourteenth Amendment of the U. S. Constitution.1 We have two statutes pertinent to the question. The first, SDCL 23-26-4 makes the right of bail in cases such as this “as a matter of discretion” and SDCL 23-51-13 provides that in similar cases to this “only when, in the opinion of the trial court or any judge of the Supreme Court to whom application is made, the ends of justice demand that the defendant be admitted to bail.” Construing these statutory provisions in 1967, Justice Biegelmeier, in setting bail in the matter of State v. Olson, 82 S.D. 60, 152 N.W.2d 176, outlined the factors to be considered in passing upon the question of admission to bail, and found them to be essentially two: assurance of the defendant’s future presence in court and the protection of society.
At this point I must take issue with the majority opinion and with Justice Wollman on the adoption of the probation and parole decisions as authority on bond pending appeal. Black letter law points out that the conditions of probation and parole are premised on the purpose of rehabilitation of the parolee or probationer whereas conditions of bond on appeal are primarily to secure attendance when required and for the protection of the public as Justice Bie-gelmeier so clearly enunciated.
The American Indian Movement (AIM) is a political movement among the Indian people. I do not pretend to know its philosophy nor do I by this opinion indicate any approval as to either its ends or the means used in the past to attain those ends. However, it is not an illegal or unlawful organization, clearly distinguishing this case from Malone v. United States, 9th Cir., 502 F.2d 554, wherein the defendant parolee was proscribed from activities in the Irish Republican Army. As the majority opinion gratuitously points out AIM attained its prominence in the 71-day occupation of Wounded Knee, in the Custer Courthouse incident, and subsequently in the Minneh-aha County Courthouse incident. It is out of the latter incident that defendant’s conviction now in the process of appeal to this Court arose. I do not pass judgment on any of these incidents for none of them are before us at this time.
However, I do note that since the Min-nehaha County incident on April 30,1974 no violent confrontations have occurred and it is apparent to me that the leaders of the movement have decided that it is to their advantage to work within the system. The success of their change in tactics is apparent for our judicial system has provided them with fair trials resulting in numerous acquittals, including the defendants at the Wounded Knee trial.
The majority feel that it was merely fortuitous that no violence occurred at Sisseton and in fact the meeting produced some good effects. I prefer to believe that this is another example of the effect of responsible leadership attempting to work within the system.
It is only in a most unusual case that bail may be conditioned upon a curtailment of First Amendment freedoms and then only where shown to be absolutely necessary to assure the defendant’s presence or society’s protection. See Christoffel v. United States, 89 U.S.App.D.C. 341, 196 F.2d 560 (1951) and also Williamson v. United States, 184 F.2d 280 (2 Cir. 1950) where the defendants had been convicted of advocating the violent overthrow of the United States Government as members of the Communist Party. In Williamson, Justice Jackson writing as a circuit justice from the second circuit stated: “Courts should not utilize their discretionary powers to coerce men to forego conduct as to which the Bill of Rights leaves them free.”
*606Justice Wollman drew an excellent picture of the inter-relationship between the defendant and AIM. Defendant has received widespread publicity concerning his involvement with the AIM activities. Indeed his name is practically synonymous with AIM. When he opens his mouth to speak the audience hears the voice of AIM. If that be the case, and it was as equally apparent when the condition was imposed as it is now, if participation in AIM activities was as fraught with peril as the majority assumes why the exceptions 1 and 2, fund raising and International Indian Treaty Organization activities. If the defendant had worn a badge for the International Indian Treaty Organization or passed a hat for AIM funds would it have made any significant difference at the Sisseton meeting. There are at least two conditions that far more effectively constrain the defendant from participation in violence to protect the public; namely, number 2, the adjuration to obey all laws of the United States and any of its member states or their subdivisions, and number 7, which provides for revocation of bail at any time that defendant is bound over on preliminary hearing or held to answer on grand jury indictments for any offenses committed after bail is granted. There is no suggestion that the defendant has not fully complied with the rather onerous conditions requiring reports at intervals of fifteen days and personal appearance at Sioux Palls at least every sixty days. He has waived extradition so that the factor of availability for attendance is amply protected. There is simply no necessity for the infringement on defendant’s First Amendment rights. I would hold that the imposition of condition number 4 was in violation of the defendant’s First Amendment rights to be a participant in all legal activities of a legal organization as being totally unnecessary for either securing defendant’s presence or for protection of the public.
. U. S. ex rel. Bad Heart Bull v. Parkinson, et al., 381 F.Supp. 985.