Jonathan P. Baird

It has now been over five years since I last wrote about the Leonard Peltier case. Back then in 2016, Peltier had hoped President Obama would grant him clemency. That did not happen.

Now, Peltier is 77 years old, residing in a federal penitentiary in Florida. He is not in good health. He suffers from diabetes and an aortic abdominal aneurysm that could rupture. He has served 46 years behind bars and he is hoping President Joe Biden will grant clemency. Peltier is the longest serving political prisoner in America.

The Department of Justice issued a national response to the COVID-19 pandemic authorizing the Federal Bureau of Prisons to release elderly inmates and those with underlying health conditions from federal prison. Peltier’s sentence was life, with parole. He deserves this consideration.

For those who are unfamiliar with the case, Peltier was a leader of the American Indian Movement or AIM on the Pine Ridge reservation in South Dakota. In 1975 there was a shoot-out on the reservation and three men died, two FBI agents and a Native American man.

Peltier was one of the three men charged in the murders of the FBI agents, Jack Coler and Ronald Williams. Peltier’s co-defendants were acquitted on grounds of self-defense. No one was ever charged for the murder of the Native American man, Joseph Stuntz. Stuntz was also an AIM member.

The FBI was desperate for a conviction since there were two dead agents. They needed a fall guy. Peltier played that role.

Obviously, at this late date, any recital of the facts can legitimately be considered partial but there have been some new developments on the case since I last wrote about it. The U.S. Attorney, James Reynolds, who played a prominent role in prosecuting Peltier sent President Biden a letter in July.

“I write today from a position rare for a former prosecutor to beseech you to commute the sentence of a man who I helped put behind bars. With time, and the benefit of hindsight, I have realized that the prosecution and continued incarceration of Mr. Peltier was and is unjust. We were not able to prove that Mr. Peltier personally committed any offense on the Pine Ridge reservation.”

Reynolds had previously said, “he (Peltier) didn’t go out there with the intention to kill anybody. He was just trying to protect his people”.

Just to reiterate, the prosecutor has admitted there is no proof Peltier killed the two FBI agents. The government had to drop the murder charges because they had withheld exculpatory evidence, a ballistics test that showed the murder weapon was not Peltier’s gun.

All that has been established is that Peltier was at the scene, shooting along with forty other Native Americans. He was charged with “aiding and abetting” but it was not proved whom he “aided and abetted” and you cannot aid and abet yourself.

The fact that a powerful institution like the FBI wanted to pin the blame on someone should not obscure the proof problem. Being in the vicinity of the shooting proves nothing but it has been enough to put Peltier away for 46 years. The FBI was hellbent on that result.

The trial was riddled with misconduct by the prosecution. The Tenth Circuit Court of Appeals later wrote about it:

“Much of the government’s behavior at the Pine Ridge reservation and in the prosecution of Mr. Peltier is to be condemned. The government withheld evidence. It intimidated witnesses. These facts are not disputed. “

Even though Peltier’s co-defendants were tried separately and were acquitted based on self-defense, the trial judge, Paul Benson, did not allow Peltier a self-defense argument. Also, one of the jurors acknowledged she was biased against Native Americans. In a decision that is difficult to understand, she was allowed to sit on the jury (and she voted for conviction).

Peltier now has a new lawyer, Kevin Sharp, who was previously a Federal District Court judge. Willie Nelson’s ex-wife, Connie Wilson, who is a Peltier supporter, reached out to Sharp to ask him to take the case.

Via Freedom of Information Act requests, Sharp has uncovered FBI internal memos that showed U.S. Attorneys were directed to put all resources into convicting Peltier. The FBI had a broader strategy to suppress AIM. Sharp has said that the agency plan was to “continually harass and arrest and charge” AIM members to keep them tied up in court.

This fits in with the FBI’s Counter Intelligence Program (called COINTELPRO) which was directed, in part, against AIM. COINTELPRO was designed to infiltrate, disrupt and destroy a wide range of activist groups. In this period, virtually every known AIM leader in the United States was incarcerated in either state or federal prison. 69 AIM members and supporters were murdered on the Pine Ridge reservation in the period between 1973-1976. 350 others suffered serious physical assaults.

The prosecution of Peltier needs to be seen in the context of COINTELPRO and broader Native American history. AIM was in the forefront of the struggle to realize the rights of treaty-guaranteed national sovereignty on behalf of Native Americans. As Sharp has said:

“Part of what’s going on is an extermination policy. We’re taking your land, your minerals. We’re going to get rid of you altogether…That’s what started it. That’s what the counter-intelligence was running.”

The FBI was still infected by the J.Edgar Hoover racist virus. They pursued Peltier and they continue to fight his clemency petition to this day. It does not seem to matter that all the agents from that era are long gone from the Bureau. The FBI’s pursuit of Peltier was in the racist tradition that defined so much of Hoover’s disgraceful tenure as FBI Director.

In his letter to President Biden, former prosecutor Reynolds also wrote:

“ Leonard Peltier’s conviction and continued incarceration is a testament to a time and a system of justice that no longer has a place in our society…I urge you to chart a different path in the history of the government’s relationship with its Native people through a show of mercy rather than continued indifference. I urge you to take a step towards healing a wound that I had a part of making. I urge you to commute Leonard Peltier’s sentence and grant him executive clemency.”

Senator Patrick Leahy of Vermont just became the most senior U.S. government official to support Peltier’s release. Before she became Interior Secretary, Deb Haaland, the first Native American Cabinet Secretary, also advocated Peltier’s release. On October 8, eleven members of Congress including Rep. Raul Grijalva, Barbara Lee and Pramila Jayapal requested Peltier’s expedited release and granting of clemency.

Please, President Biden: it is time to turn the historical page. Do the right thing and grant clemency to Leonard Peltier.