Let Leonard Peltier Go Free

I don’t know which Native Americans killed FBI agents Jack Coler and Ronald Williams in the notorious 1975 shootout in Oglala, South Dakota. Nor do I know the identity of the federal lawman who shot and killed Joe Stuntz, the American Indian Movement (AIM) member. But what is troubling is that federal prosecutors don’t know either, yet Leonard Peltier has spent 41 years behind bars for the FBI agents’ deaths. Now, in the waning days of the Obama administration, Peltier has petitioned President Obama to commute his sentence.

I was there on the Jumping Bull ranch on that hot June day in 1975 when some of the bullets were flying, recording the exchange of gunfire as part of my coverage for NPR. I’ve been able to interview Peltier several times since then, most recently from Florida’s maximum-security Coleman penitentiary. The audio file of that conversation is below, and edited-for print extracts follow this story.

Over the last four decades, many groups, including Amnesty International, have advocated for Peltier’s release. Amnesty maintains that Leonard Peltier, who is 72 and in ill health, did not get a fair trial. The former director of Amnesty International U.S.A., Jack Healey, has produced 11 video testimonials for Peltier’s release in recent years from famous actors and musicians, including Ringo Starr, Bonnie Raitt, Harry Belafonte, and the late Pete Seeger.

Over the course of his imprisonment, Healey said, high-profile advocates such as Nelson Mandela, Desmond Tutu, Mother Teresa, and actor Robert De Niro all have lobbied the White House to free Peltier. In the last six months, he said, Robert Redford, who produced the documentary Incident at Oglala about the 1975 shootout and its aftermath, has met with President Obama to make the case in person. A former Franciscan priest, Healey said he is sending a message to Pope Francis through his friend Boston Cardinal O’Malley: “If I can reach the Holy Father to reach President Obama, I’ve done my job.”

President Obama now has two weeks — until January 20 — to decide whether to release Leonard Peltier.

Though Peltier’s current clemency plea is on humanitarian grounds for his age and declining health, the violations of legal procedure that occurred during trial continue to astound. The government has never produced an eyewitness to the deaths of the agents. The prime witness during Peltier’s extradition from Canada, Myrtle Poor Bear, later recanted, saying she’d signed three affidavits under pressure from FBI agents. When she tried to come forward to tell her story at Peltier’s trial, the North Dakota judge ruled her incompetent and barred that testimony.

The U.S. Attorney was castigated by the Eighth Circuit Court of Appeals for its use of the “fabricated evidence” — which prosecutors later acknowledged to be false — to secure Peltier’s extradition. In the past, Peltier has admitted to “firing in their direction,” meaning toward the FBI agents during the shootout, but said he did so “because they were firing at me.” The appeals court also chastised prosecutors for misconduct in withholding from the jury a key ballistics test that eliminated Peltier’s gun as the murder weapon.

Peltier was indicted on the same evidence that ended up acquitting his two codefendants on the grounds of self-defense. However, his codefendants’ trial was held separately, before an all-white jury, in Iowa. Their jury heard evidence from the U.S. Commission on Civil Rights about the “climate of fear” on the reservation between 1973 — when Indian activists occupied Wounded Knee for 10 weeks — and the shootout in 1975. Peltier told me, “Conditions there were worse than third world countries. … People … were being murdered, and people were living in terror.”

His codefendants’ jury also learned of an FBI connection to an anti-AIM group that called itself the GOONs (Guardians of the Oglala Nation). Some jurors said afterward that testimony countered the FBI’s claim of neutrality between Indian factions following the Wounded Knee siege. Testimony about casualties during that 71-day siege in 1973 (in which two Indians were shot to death, and two lawmen and a dozen Indians wounded) was also blocked at Peltier’s trial.

In fact, the climate of fear back then matched anything I have experienced in reporting from war zones in Central America and the Middle East. Former U.S. Senator James Abourzek (D-SD) told me that the near-lawless atmosphere on the reservation approached “total anarchy.” In those days almost everyone was armed and the reservation resembled the Wild West. I once was threatened with guns in my face when I tried to film a GOON squad roadblock; on another occasion I was slammed up against a wall by GOONs, who tended to perceive the entire press corps as AIM sympathizers. The brakes on my car were cut, and, on one occasion, a high-powered rifle blew a hole in an automobile in which I was riding.

My experiences pale by comparison to the beatings, fire-bombings, and drive-by shootings were common during the period; at least 28 murders of Indians still remain unsolved, and the Oglala Sioux tribe has repeatedly petitioned the federal government to reopen these cases.

Former Senior U.S. District Judge Fred Nichol, who tried many of the Wounded Knee cases, told me in a filmed interview, “The FBI and the GOON squad worked pretty much together … because they were against AIM.” In a 1984 televised interview that I conducted for PBS Frontline, a leader of the GOON squad claimed that FBI agents provided his group with intelligence on AIM and, in one instance, “armor piercing” bullets for use against AIM members who, like the GOONs, were heavily armed at the time.

Fourteen years after Peltier’s 1977 conviction, Gerald W. Heaney, chief judge of the U.S. Court of Appeals that upheld the verdict, surprised court watchers by petitioning the White House to commute Peltier’s sentence. Heaney later told 60 Minutes that Peltier’s was the most difficult case of his career in light of governmental misconduct, which he branded “a disgrace.” Advocating for Peltier’s release in his 1991 letter, Heaney said the government “must share the responsibility” for the deaths of the two agents and Joe Stuntz in the shootout. He said the government had “overreacted” to the 1973 occupation at Wounded Knee. Instead of “carefully considering the legitimate grievances of Native Americans,” he said, “the response was essentially a military one that culminated in a deadly firefight on June 26, 1975.” According to Judge Heaney, “the government’s role in escalating the conflict into a firefight … can properly be considered as a mitigating circumstance.”

At press time, Peltier’s clemency attorney, Cynthia Dunne, a former assistant U.S. Attorney, released a letter from James H. Reynolds, the U.S. Attorney who had overseen the government’s opposition to Peltier’s appeals. He wrote to President Obama in support of the bid for clemency. Reynolds said his change of heart was “in the best interest of Justice in considering the totality of all matters involved.”

According to Jack Healey, the former Amnesty official, that leaves as Peltier’s most potent opponent in the current clemency drive a group of retired FBI agents who had pressured the Clinton administration not to release Peltier.

As Bill Clinton’s term was ending, Peltier’s attorneys were invited to the White House and given strong indications that the president would grant clemency. But a few weeks before Clinton left office in 2001, 500 agents protested outside the White House, prompting the president to renege. Today, the FBI Retired Agents Association (which also played a role reportedly in convincing FBI Director James Comey to announce 11 days before the presidential election that he was re-opening the investigation of Hillary Clinton’s emails) is lobbying President Obama to keep the Indian activist in prison.

When I spoke with Peltier last month, he was reluctant to rehash details of the oft-debated shootout and trial, as he had in previous interviews. And while there is no doubt that someone killed the two FBI agents, Jack Healey wasn’t interested in doing so, either. “When you’re going for clemency, you don’t reargue the case. … By definition, clemency is not about guilt, and even if Leonard did it — which I don’t believe — murderers are usually out in 12 years or so.”

Healey noted that Peltier’s next scheduled parole hearing is not until 2024, and he drew a distinction between justice and vengeance. “Leonard’s served his time. If you hold him beyond 41 years in prison you are talking about vengeance.”

Before he leaves office on January 20, 2017, President Barack Obama could provide closure to one of the most difficult, divisive periods in modern Indian history. As Judge Heaney wrote, “At some point, the healing process must begin. We as a nation must recognize their unique culture and their great contribution to our nation.”

•••

In the last year, it has become increasingly difficult to visit Leonard Peltier, who contends that authorities are restricting his visits, especially from the press, in an effort to keep the spotlight off his controversial prosecution. Only after months of intervention by Rep. Lois Capps (D-CA) did the Bureau of Prisons relent and permit me an interview by phone last month. Despite an overall record of good conduct, Peltier told me it had been several years since he’d been allowed to speak with a reporter.

Tell me: What is your ancestry? My father was from Turtle Mountain Chippewa Nation in North Dakota. My mother is a Dakota — “the people of the white corn” — from what’s now called Spirit Lake. We were farmers, and my grandfather was actually from Mankato, Minnesota. After the Little Crow war in the 1860s, they hung 38 Indians [in Mankato], the largest hanging in the United States.

One of them was my great-grandmother’s brother White Dog. There were 300-something indicted, and they had 10-minute trials, 10 at a time. Abraham Lincoln was going to execute everybody, but his aides sent him numerous memos — this is all in the record — telling him that if he killed all those people, he’d be known as a mass murderer. So he stopped at 40. Two escaped to Canada, and 38 were hung.

Did you grow up knowing all this history? Yes, I used to sit around and listen to my elders talking. I was born in 1944, and I grew up in apartheid conditions. A candy bar was a rarity [and] meat on the table wasn’t a regular thing. We had to have a (written) pass to leave the reservation! Even to go shopping in bordering towns, or to go work in the migrant fields of the Red River Valley or the barley fields of Montana.

The media was doing major articles, calling us the vanishing American Indians. By 1985, the “Termination Act” was going to be completed, and we would no longer exist. They were implementing the assimilation [policies] to “take the Indian out of being Indian” through the boarding schools, which have a horrific history — I was in one of those schools from 9 to 13 years old.

On the Pine Ridge Reservation, after the Wounded Knee Occupation in 1973, were people divided? Yeah, there was pro-termination; there were traditionalists who refused to give up their lands.

And there were factions loyal to the tribal chairmen who were against AIM, the group you were with. Yes, precisely.

May I ask you about June 26, 1975? Oh, yeah. Well, I mean, I was at camp, and there was some gunfire up at the Jumping Bulls’. A couple of days before that, somebody down there at the dam was firing off an automatic weapon, getting everyone all paranoid and scared. He said he was shooting fish. So at first that’s what everybody thought it was, but by the time we got up there, it was a full-scale gun battle going on.

Until the shooting stopped, everything was surrounded with SWAT teams. My responsibility was to try to get those women and children out of there. That’s precisely what I did.

The government said that the agents were killed at close range after a period of gunfire exchanged from both sides. The government also said they don’t know who killed the agents nor what participation either culture may have had in it.

In other interviews, you admit you were firing a weapon that day. Yeah.

Wasn’t there an Indian who was killed at Oglala? Well, somebody sniper-shot him and killed him. We’ve been fighting for 41 years to get that investigated. Who killed that man?

Were you sentenced for two lives without parole? No, nope, no. I’ve been to the parole board numerous times. I was found guilty of first-degree murder in 1977 and sentenced to two life sentences with parole. I appealed it … and the main issue that we argued was … jury instructions of aiding and abetting and manslaughter and first-degree murder. Under the extradition treaty, they [could] only charge and prosecute for first-degree murder because that’s what they asked (Canada) to return me for.

The appeal courts said the most critical evidence against me was the murder weapon. I filed a Freedom of Information Act, and they turned over 18,000 documents about a year after I was convicted. Two FBI documents said all scientific tests came out negative, so this was not the murder weapon.

In 1984, at the appellate court, the judge says, “Just what was Mr. Peltier convicted of? ’Cause we can’t find no evidence of first-degree murder in the record.” The prosecutor responded with this: “Your Honor, the government does not know who killed the agents, nor do we know what participation Leonard Peltier may have had.”

During the 1980s you figured in the Cold War, didn’t you? Yes. Ronald Reagan and Gorbachev met, where was that at? Where they had the negotiation for nuclear weapons. The first thing Ronald Reagan starts telling Gorbachev is “You have political prisoners in your country; you should release this man.” So Gorbachev said, “Well, you have Leonard Peltier in prison. And, gee, there’s no proof he killed anybody. How come you don’t release him?”

It just wasn’t the left that was demanding my freedom. It was in Time magazine. I even had people like George Will, a right-wing columnist. He said, “Why he didn’t give clemency to Peltier is shocking to us.” Fifty-five members of Congress demanded my freedom, 51 members of the Canadian Parliament, and 50 members of the European Parliament.

That (FBI) demonstration at the Clinton White House, do you think that that played a part in the denial of your clemency? I don’t know, Kevin. I don’t know. One of my lawyers who’s friends with an FBI agent said that (FBI Director) Comey is going to oppose it, but right now they’re all mad at him because he helped [Hillary Clinton lose the election]. She won by over two million votes because, you know, he went out there and pulled that bullshit he did. That’s the reason she lost the election.

When he came out two weeks before the election and said that there was more investigation to be done on Hilary Clinton. Yeah.

I’m interested in what ceremonies there are for Native Americans in prison. Well, we have one, the inipi; the sweat lodge it’s called in English. And we have the pipe ceremonies. And here, that’s about it. … I built the first sweat lodge in the prison.

And now there’s the possibility of clemency before President Obama leaves office. Is there a special prayer that you say? Well, you know, we don’t believe in praying for yourself. It keeps you from being arrogant, you know. We don’t say, “God, please make me rich.” We don’t believe in that way, so we pray for everybody else. So I pray for my people.

What is your health situation? They gave me some nitros the other day because my heart is bad. I need medical treatment. I have what they call an aortic aneurism in my chest. If this aneurism bursts, I’m dead. My joints are bad; my hip is bad, so I have a hard time walking from one place to another. I got all these old-man ailments comin’ on me.

Tell me about your kids and your family. I’m great-grandfather now, and all my kids, of course, are grown. I haven’t even met some of my grandchildren yet, because I can’t afford to bring them all the way down here [to Florida] to visit.

I imagine sometimes it gives you a frog in your throat … Talking about it right now … (Laughs.) I’m doing everything to keep from crying. Yup. It would be great. I mean, just to see them little kids hanging all over. They know a lot about Grandpa, but some of them have never even seen me yet. I hope they all come running to me. I’m going to stay alive until that happens.

If you knew that this would cost you some 40 years, would you do it all again? We have just as much a right as any race of people on earth to live. So, yeah, I’d do it again. I’d be there for my people again.

Kevin McKiernan covered the Pine Ridge Indian Reservation for NPR from 1973-1976 and coproduced the 1990 PBS Frontline documentary The Spirit of Crazy Horse. His new film, From Wounded Knee to Standing Rock is in post-production.