The Leonard Peltier Case: A Time to Reconsider

Geronimo Pratt isn't the only political holdover from the 1970s whose controversial murder conviction ought to be reviewed. Another is Leonard Peltier, the American Indian Movement leader who has been behind bars now for more than 20 years. Pratt and Peltier never may have met, but they have a lot in common.Pratt was a Black Panther whose case was tainted by allegations of prosecutorial misconduct. He was recently released after more than 20 years in jail. Peltier was a member of the American Indian Movement (AIM), a group that staged a series of militant protests in the 1970s to publicize broken treaties and other Indian grievances. Each man was prosecuted during the era of COINTELPRO, the FBI's "domestic security" program that targeted a variety of community activists (including Martin Luther King Jr.). In 1976, the Select Committee on Intelligence, chaired by Senator Frank Church, concluded that many COINTELPRO activities were unlawful. In the case of both Pratt and Peltier, according to Amnesty International, FBI misconduct interfered with the right to a fair trial.Leonard Peltier is the Chippewa-Lakota Indian convicted for his role in a 1975 gunfight at a remote ranch on an Indian reservation in South Dakota. The shoot-out left an Indian and two FBI agents dead, and it capped more than two years of internecine warfare between Lakota traditionalists allied with AIM and tribal loyalists backed by the federal government.Peltier was one of the three AIM members charged with killing the agents (all have admitted since that they were part of a larger group of Indians who exchanged gunfire with law enforcement that day). In 1976, Peltier's two co-defendants were tried in federal court in Iowa, but they were acquitted on the grounds of self-defense after witnesses testified to FBI misconduct on the reservation. The reason for the not-guilty verdicts, according to a later analysis by the Bureau itself, were defense contentions at the trial that the "the FBI created a climate of fear on the reservation which precipitated the murders."Peltier was arrested in Canada in 1976 and extradited to the United States; he was tried in North Dakota in 1977. But while the court in the Iowa trial had permitted the jury to hear testimony about COINTELPRO and past activities of the FBI (as well as allowing the Church Report to be introduced), the federal court in North Dakota ruled all such evidence inadmissible. The North Dakota judge also barred testimony about the FBI collusion with the so-called "goon squad," a well-known group of armed Indians opposed to AIM; defense lawyers claim the goon squad was tied to more than a dozen unsolved murders at the reservation. The exclusion of evidence at the North Dakota trial seemed critical to Peltier's subsequent conviction. Later, the foreman of the first jury was quoted as saying: "If Peltier had been tried in Cedar Rapids (Iowa) ... I'm sure he would have been found not guilty."The dramatic high point in Peltier's prosecution was the discovery that the extradition of the Indian leader was based on the fabricated testimony of an FBI witness, a woman who swore under oath that Peltier had confessed the killing to her. After the extradition, the woman recanted, claiming her statements to Canadian authorities were pressured by the FBI. But defense lawyers were not permitted to call her as a trial witness to tell the jury she had been coerced into implicating Peltier. The judge said she was incompetent and that her testimony "could be highly prejudicial" to the government's case.Peltier was found guilty, and the conviction was upheld. But a U.S. Court of Appeals judge had harsh words for the tactics used but the FBI in the extradition: "If they are willing to do that, they must be willing to fabricate other evidence."After the trial, Peltier's attorneys filed a Freedom of Information lawsuit, which succeeded in releasing thousands of pages of FBI documents. Most of the new information was heavily censored, but one of the released documents looked like hidden treasure to the defense. It was an FBI ballistics report that seemed to exclude the rifle attributed to Peltier as the murder weapon. In 1986, the Court of Appeals said the exculpatory report (which had been withheld from the defense and not disclosed to the jury) "cast a strong doubt on the government's case." The court added that the jury's knowledge of the ballistics test "possibly" could have led to Peltier's acquittal. However, the judges stopped short of ruling that such disclosure "probably" would have done so -- the finding necessary to obtain a new trial.Did He Get a Fair Trial?There is no question that Peltier was present at the ranch -- perhaps with a dozen others -- on the day in question. In interviews conducted in prison he said that he shot in self-defense during a firefight that erupted after unmarked FBI cars sped into the AIM compound. But the real question is whether Peltier got a fair trial -- and whether, in light of FBI improprieties, it is time to review and redress this chapter in history. While no eyewitness to the actual killings testified at the 1977 trial, government prosecutors argued at the time that Peltier was a principal in the murders (i.e., he did it). Today, prosecutors admit they don't know who killed the agents although they maintain that Peltier's armed presence makes him an aider and abettor (as such, he could be equally guilty under the law). But in view of the acquittal of his co-defendants on the grounds of self-defense, it seems more than fair to ask another question: Who did Peltier aid and who did he abet?Leonard Peltier is in Leavenworth Penitentiary in Kansas, awaiting his next parole hearing, which isn't scheduled until the year 2009. He has been in prison since 1976 -- far longer than the 14 years typically served in convictions for murder. The FBI is sensitive to criticism it broke the rules in going after Peltier, and 21 years after his capture the case is still an open wound for the Bureau. When Peltier supporters mounted a drive three years ago to obtain executive clemency, FBI agents bought a large ad in the Washington Post opposing his release. The ad was not paid for with government funds, but it indicated that official passions are still stirred by the 1975 shoot-out, an incident far older than the events of Waco or Ruby Ridge.The times were different in the 1970s, and Peltier was convicted in a highly charged atmosphere. The gunfight in 1975 was the climax of such dramatic confrontations as the seizure of Alcatraz Island, the takeover of Tue Bureau of Indian Affairs (BIA) office in Washington, the riot in Custer, South Dakota, and the 10-week armed occupation of Wounded Knee. While these protests gave AIM and traditional Indians a forum to air grievances, the actions triggered a war with Indians loyal to tribal government.The FBI may have taken sides in that war -- improperly so -- according to the U.S. Commission on Civil Rights. In two separate reports, the Commission found sufficient evidence that "the more militant and traditional Native Americans have concluded that they cannot count on equal protection under the law at the hands of the FBI or the BIA police. Many feel that they are objects of a vendetta and have a genuine fear that the FBI is 'out to get them.'"A year after the FBI shoot-out, the U.S. Civil Rights Commission found sufficient evidence to request a congressional investigation of law enforcement controversies on the reservation. Unfortunately, the inquiry never took place.The Spirit of Crazy HorseToday in South Dakota there is still talk about the hot summer of '75 and the famous shoot-out near a Lakota village called Oglala. Leonard Peltier is still mentioned at reservation powwows, his name invoked in the sweat lodge and other traditional ceremonies. While government prosecutors still refer to him as a vicious killer, many Indians call him "the spirit of Crazy Horse."These days Geronimo Pratt may be better known to the general public, but for a time in the 1980s Peltier was an international cause celebre. Fifty-five members of Congress -- 10 percent -- branded his case a miscarriage of justice and signed an amicus brief petitioning the U.S. Court of Appeals for a new trial. His supporters included Nobel laureate Desmond Tutu and the Archbishop of Canterbury. Robert Redford produced a documentary, Incident at Oglala, attacking his conviction Even the Soviets got into the act. Mikhail Gorbachev called Peltier a political prisoner and raised his name during a summit meeting with President Reagan; the Soviets also orchestrated a petition drive that delivered 21 million signatures to the White House.After 1976, the American Indian Movement gradually disbanded. More than 20 years later, however, the FBI holds 6,000 pages of classified documents related to Peltier. After all this time, the Bureau still justifies withholding much of the information on the grounds of "national security." Today, the public has a right to see these documents. Their disclosure could shed light on the Peltier prosecution and the mystery that still surrounds the shoot-out. The U.S. Supreme Court has declined to review Peltier's conviction. His legal battles, unlike those of Geronimo Pratt, finally may have reached an end. Nonetheless, his advocates are gearing up this fall for another campaign to reopen the case, or to commute his two life sentences. So far, they claim the support of 30 U.S. senators and members of Congress; Bill Richardson, the U.S. Ambassador to the United Nations; and such international figures as Mother Teresa and the Dalai Lama. A few years ago, the Hon. Gerald W. Heany, Chief Judge of the U.S. Court of Appeals that upheld Peltier's conviction, wrote to the President stating that the FBI shared the blame for the two agents and the one Indian killed in the South Dakota shoot-out. Judge Heany argued in a letter that the government "over-reacted" to the occupation of Wounded Knee in 1973. Instead of "carefully considering the legitimate grievance of Native Americans," Judge Heany wrote, "the response was essentially a military one which culminated in a deadly fire fight on June 25, 1975 between Native Americans and the FBI agents and the United States Marshals."The Leonard Peltier case, like that of Geronimo Pratt, is a vestige of another era, a time of both militant activism by racial minorities and militant counterinsurgency by law enforcement. President Clinton should commute his sentence. "At some time the healing process must begin," wrote Judge Heany in his letter recommending clemency for the Indian leader. "We as a nation must recognize their unique culture and their great contribution to our nation."Kevin Mckiernan is a Santa Barbara photojournalist who covered the Pine Ridge Indian Reservation for National Public Radio from 1973 to 1976. He was the only reporter present at the FBI-Indian shoot-out in 1975; a photograph he took that day was nominated for a Pulitzer Prize.

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