Volume 56, Number 18 · November 19, 2009
The Tragedy of Leonard Peltier vs. the US
By Peter Matthiessen
On July 27, 2009, I drove west from New York to the old
riverside town of Lewisburg in central Pennsylvania, the site of the federal
penitentiary where early the next morning I would make an appeal to the parole
board on behalf of the American Indian Movement (AIM) activist Leonard Peltier
in his first parole hearing in fifteen years. On this soft summer evening, a
quiet gathering of Peltier supporters from all over the country had convened
in a small park near the Susquehanna River. Despite his long history of
defeats in court, these Indians and whites sharing a makeshift picnic at wood
tables under the trees were optimistic about a favorable outcome. Surely a new
era of justice for minorities and poor people had begun with the Obama
administration, and anyway, wasn't Leonard's freedom all but assured by the
Parole Act of 2005, which mandated release for inmates who had spent thirty or
more years in prison?
Leonard Peltier, an Ojibwa-Lakota from Turtle Mountain,
North Dakota, was one of the three young Indians who were among the
participants in a shoot-out with the FBI at Oglala on South Dakota's Pine
Ridge Reservation on a hot dusty day in June 1975. They were later charged
with the deaths of FBI agents Jack Coler and Ron Williams. Ostensibly
searching for a suspect in a recent robbery case, the agents had been warned
by tribal police not to enter the property where the AIM Indians had their
camp. Their intrusion apparently provoked a warning that led to an exchange of
gunfire. Understandably outraged by the deaths of Coler and Williams and in
particular by the fact that an unknown "shooter" had finished off both wounded
men at point-blank range, their fellow agents would also suffer intense
frustration and embarrassment when a dozen or more of the Indians involved,
using a brushy culvert under a side road, escaped a tight cordon of hundreds
of agents, Indian and state police, national guardsmen, and vigilantes who had
the area surrounded.
More galling still, Bob Robideau and Dino Butler, two of
the three AIM suspects in the killings arrested during the FBI's huge "ResMurs"
(Reservation Murders) investigation, were acquitted a year later in Cedar
Rapids, Iowa, on a plea of self-defense, as the third and last suspect,
Leonard Peltier, would certainly have been as well, had he not fled to Canada.
He was arrested there in February 1976, extradited back to the US, and tried
separately. Though originally indicted with the others on identical evidence,
he was barred by a hostile new judge, Paul Benson, from presenting the same
argument based on self-defense that had led to Robideau and Butler's
acquittal. Furiously prosecuted as the lone killer and convicted for both
deaths on disputed evidence, Peltier was sentenced in February 1977 in Fargo,
North Dakota, to two consecutive life terms in federal prison.
The following year, when Peltier's conviction was appealed,
8th Circuit Court of Appeals Judge Donald Ross denounced the coercion of
witnesses and manipulation of evidence in his case as "a clear abuse of the
investigative process by the FBI"; the US Attorney's Office, too, would be
sharply criticized for withholding exculpatory evidence. In October 1984, in
an evidentiary hearing in Bismarck, North Dakota, ordered by the appellate
court to review the possibility of a new trial, the prosecutor, US Attorney
Lynn Crooks, had to concede that the FBI's own laboratory had failed to verify
the claimed ballistics link between Peltier and the murder weapon that was
used to nail down his conviction—a shell casing of disputed provenance that
Crooks had called "perhaps the most important piece of evidence in this case."
Even so, Judge Benson refused to reconsider the conviction.
The following year when the decision was appealed again,
Crooks finally admitted that the identity of "the shooter" had never been
proven and was in fact unknown to the prosecution even when it was twisting
the evidence to ensure Peltier's conviction and make certain that its third
and last suspect—by its own description, "the only one we got"—was imprisoned
for life. Yet the appellate court, while noting that so much tainted evidence
had deprived the defendant of his constitutional right to due process of law,
found "no compelling legal justification" for ordering a new trial.
In a TV interview after his retirement in 1989, Judge
Gerald Heaney, who had signed that astonishing decision, called it "the most
difficult I had to make in twenty-two years on the bench." The following year,
in the National Law Journal, this troubled jurist held the FBI "equally
responsible" for the deaths of its two agents; in a letter to Senator Daniel
Inouye of Hawaii, he urged commutation of Peltier's sentence. Questioned on
the same 1989 TV show about the perjured affidavits extracted by FBI agents
from a frightened alcoholic, US Attorney Crooks declared: "I don't really know
and I don't really care if they were false. I don't agree that we did anything
wrong, but I can tell you, it don't bother my conscience one whit if we did."
Properly outraged by this arrogant refusal to repudiate US government use of
fabricated evidence, Senator Inouye, as a former US attorney, called Crooks "a
disgrace to the profession."
I first interviewed Leonard Peltier in Marion Penitentiary
in 1981, and that same year, with his original codefendant Bob Robideau, I
inspected the Jumping Bull Ranch at Oglala where the shoot-out had taken
place. Later, after reading many if not most of the pertinent documents,
including the FBI field reports and the transcripts of both trials, I returned
to Oglala to interview local people and study the scene again. Like the FBI, I
would hear all sorts of rumors about the many young Indians involved without
learning which one had fired the fatal shots; however there seemed to me no
doubt whatever that Leonard Peltier had been railroaded into prison.
Unfortunately my long book making that case* was quickly
suppressed by libel suits brought by South Dakota's attorney general, William
Janklow, and an FBI agent named David Price. Eight years would pass before
both suits were summarily dismissed and the book was back in circulation.
Meanwhile Peltier's long fight for a fair trial had won his endorsement as a
political prisoner by Amnesty International, and his thousands of supporters
throughout the world included the Dalai Lama, Nelson Mandela, Desmond Tutu,
and the great majority of his own people in the more than 250 Indian nations
that had formally demanded his release.
In Peltier's first parole hearing in 1996, the examiner
filed an internal recommendation in Peltier's favor. (The US Parole
Commission, like the US Attorney's Office and the FBI, is under the aegis of
the Justice Department: its examiner informs himself about the case, questions
both sides, and appraises the new evidence, if any.) Yet in actions so belated
and irregular as to raise suspicion of undue influence, the commission
replaced that first examiner with one more to its liking and denied parole.
By then, the few bold lawmakers who had called for
investigations had retreated or retired, and Peltier's best hope was executive
clemency. To that end, I wangled my way into the Oval Office and pressed my
book about the case into President Clinton's hands. In January 2001, during
Clinton's last week in office, as FBI lobbyists—the Association of Retired FBI
Agents and No Parole for Peltier—marched in front of the White House, I joined
attorney Bruce Ellison and filmmaker Jon Kilik in a long meeting with the
presidential and White House counsels in which we argued that granting
clemency to an American Indian who could offer nothing in return was a bold
symbolic step that could only enhance the President's last-minute efforts to
prop up his legacy.
The lawyers seemed impressed and hopes were high, but when
the clemency list appeared on the Saturday morning of Inauguration Day,
Peltier's name was missing. The phone call I dreaded was put through from
Leavenworth Prison in early afternoon. "They didn't give it to me," mumbled a
stunned voice I scarcely recognized—the first time in twenty years of visits,
letters, and telephone conversations that Leonard Peltier's strong spirit
sounded broken. With all court appeals exhausted and no hope of mercy from the
incoming Republican administration, this aging prisoner was condemned to wait
for his next parole hearing in 2009.
In the park in Lewisburg, people agreed that had the
shoot-out victims not been "FBIs," Leonard might never have been convicted; at
the very least, he would have been paroled many years before. Someone in the
park recalled the fear and disruption on the reservations caused by the FBI's
huge ResMurs investigation (which was widely perceived as the latest chapter
in the long history of oppression and revenge against "the redskins who killed
Custer" that had led up to the shoot-out). The killing that day in June 1975
of a young member of the AIM by a marksman's bullet in the forehead had gone
all but unmentioned, someone said, let alone investigated by "the Injustice
Department," doubtless because "Injuns don't count." How about Bob Robideau's
statement to an FBI man that he had been "the shooter"? Would the Parole
Commission take that into account? And was it suspicious that Robideau had
been found dead last February in Barcelona? (The official autopsy concluded
that he had struck his head in a fall while suffering a seizure.)
With Peltier's attorney Eric Seitz and the two other parole
advocates —Dr. Thom White Wolf Fassett, a Seneca elder and United Methodist
adviser to Congress on Indian affairs, and an Ojibwa woman named Cindy
Maleterre representing Peltier's Turtle Mountain Reservation—I went early the
next morning to the prison, passing supporters waving "Free Peltier" signs at
the entrance road.
In the hearing room the first to speak were the two sons of
the late agent Jack Coler. After testifying to their family's great loss, they
suggested that if this man facing them today were to take responsibility and
express remorse for those brutal murders he so stubbornly denies having
committed, the Coler family might not protest his parole. But the three FBI
spokesmen and the assistant US attorney who spoke next were content to repeat
the same vilifications and distortions of the facts that won a conviction back
in 1977. Locked long ago into their ResMurs myth, they insisted that Peltier
was still a danger to the public and cited those provisions in the Parole Act
specifying that parole may be denied if the subject's release might
"depreciate the seriousness of the offense" or "promote disrespect for the
law."
In response to the charge that Peltier has evaded his
responsibility for those murders, Eric Seitz countered that the FBI and the US
Attorney's Office have evaded responsibility for their own illegal tactics in
his prosecution. Otherwise Seitz made no attempt to retry a long historic case
in a few minutes, emphasizing instead the prisoner's exemplary behavior
record, serious health problems, and other strong qualifications for parole
under the commission's geriatric and medical criteria. He reminded Examiner
Scott Kubic that in a few weeks, on September 12, when Peltier would turn
sixty-five, he would also become eligible for home detention under the new
Second Chance program for elderly inmates designed to ease overcrowding in the
US prisons.
Thom White Wolf testified that Peltier's incarceration for
nearly thirty-three years has been viewed both nationally and internationally
as a gross injustice and a major embarrassment to our country, with a negative
effect on the world's view of how the US government treats its native
population. When my turn came, I spoke to the points made in this article,
adding how much this inmate had matured over the three decades of our
acquaintance, not only as an articulate spokesman for his people but as an
artist, self-taught in the prisons, whose work is admired through- out the US.
And Cindy Maleterre assured the examiner that the prisoner's Ojibwa-Dakota
people at Turtle Mountain—including grandchildren he has never seen—had
already taken care of the parole requirements of social support, adequate
housing, and steady employment (as an arts-and-crafts teacher and alcoholism
counselor on the reservation), and were planning to welcome him home with a
great feast.
That afternoon we left the prison with the feeling that
Examiner Kubic had listened carefully and would recommend parole—a guarded
optimism we conveyed to the flag-waving supporters awaiting our report on the
public road. But no one forgot how the examiner's finding in Peltier's favor
fifteen years before had been aborted; in the next weeks, as so often in the
past, the prisoner would have to suffer the suspense of desperate hope.
On Friday, August 20, federal inmate #89637-132 received
terse notice that his petition for parole had been denied: not until his
"15-year Reconsideration Hearing in July 2024," he was informed, would he
become eligible to be turned down again. In the unlikely event that he lives
long enough to attend that hearing, Inmate Peltier will be eighty years old.
In his angry response, Attorney Seitz accused the
commission of "adopting the position of the FBI that anyone who may be
implicated in the killings of its agents should never be paroled and should be
left to die in prison." I entirely agree with Seitz and share his anger. For
the prisoner and his supporters, the Lewisburg hearing had been hollow, with a
predetermined outcome: The United States v. Leonard Peltier had always been a
matter less of justice than of retribution.
Americans—those in public office especially—should inform
themselves about this painful case and demand an unbiased investigation that
might start with one simple question: If, in the thirty-three years since his
trial, reputable evidence has ever emerged that Leonard Peltier was the lone
killer and deserves to be in prison for life, why hasn't the Justice
Department produced it?
Without public protest, Peltier will not be granted a fair
hearing since his prosecutors know that in the absence of honest evidence,
"the only one we got" would be set free. Instead, this man's life leaks away
behind grim concrete walls for the unworthy purpose of saving face for the FBI
and a US Attorney's Office that together botched the famous ResMurs case and
mean to see somebody pay. And who better for this fate than a "radical" AIM
Indian who dared stand up to "legally constituted authority" in defense of his
humiliated people, as he was doing with such tragic consequences on that
long-ago June day?
In reviewing this case with an open mind, as surely he must
in fulfilling his oath of office, Attorney General Eric Holder (the assistant
attorney general in 2001) might reflect on his own role in the clemency
bestowed by Clinton on Marc Rich, the notorious "fugitive felon." He might
consider, too, Rich's consequent evasion of even a single day in prison in the
harsh light of the eleven thousand days already served by a penniless American
Indian who remains innocent before the law, having never been proven guilty.
Notes
* In the Spirit of Crazy Horse (Viking, 1983).
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