Bruce E. Johansen, Robert T. Reilly Professor of Communication and Native American Studies at the University of Nebraska at Omaha, is author of Debating Democracy: The Iroquois Legacy of Freedom (Santa Fe: Clear Light, 1997).
by Bruce Johansen
For Jose Barreiro, editor, Native Americas, summer issue
Come Christmastime, the traditional period for the granting of presidential pardons, Bill Clinton again faces a tough political decision regarding whether to free Leonard Peltier. If he does not pardon Peltier, Clinton will offend millions of people around the world as diverse as Willie Nelson, Mother Theresa, joggers in Prague, Desmond Tutu, more than 50 members of the Canadian Parliament, and Subcomandante Marcos. If Clinton pardons Peltier, who may now be the most celebrated political prisoner of this century in the United States, Clinton will reap the unforgiving, eternal enmity of the entire Federal Bureau of Investigation.
An activist in the American Indian Movement during the 1973 confrontation at Wounded Knee, Peltier, an Anishinabe born in 1944, was caught with several other AIM activists in a shootout with Federal Bureau of Investigation agents and state police at the Jumping Bull Compound on the Pine Ridge Indian Reservation during June, 1975. Peltier was later convicted of killing two FBI agents, Jack Williams and Ronald Coler. The trial, which was held in Fargo, N.D. Federal District Court, has since become the focus of an international protest movement aimed at gaining Peltier a presidential pardon or a new trial.
From one small defense committee (formed in Seattle, shortly after Peltier was arrested in Canada and extradited to the United States), the network supporting Peltier has grown in a little over two decades to 300 committees in several dozen countries. The most active committees in countries other than the United states are in England, Belgium, France, Germany, Austria, Switzerland, the Netherlands, Japan, and Australia. The Peltier Defense Committee asserts that, worldwide, 50 million people had signed petitions demanding freedom for him by the end of 1996.
Before Peltier's trial opened in March, 1977, the prosecution's case began to fall apart. Discovery proceedings produced an affidavit, signed by government witness Myrtle Poor Bear dated February 19, 1976 (before two others known to the defense, dated February 23 and March 31), which said that the woman had not been on the scene of the June 25, 1975, gun battle in which the two FBI agents had been shot to death. This information, contained in an affidavit which had not been sent to Canada by the U.S. government during Peltier's extradition hearing, contradicted the other two statements attributed to Poor Bear.
More importantly, Poor Bear herself recanted. On April 13 (having been called by the defense), out of earshot of the jury, Poor Bear told the court that she had never seen Peltier before meeting him at the trial, that she had not been allowed to read the three affidavits which bore her name, and that FBI agents David Price and Bill Wood had threatened physical harm to herself and her children if she did not sign them.
Judge Paul Benson refused to let the jury hear Poor Bear's testimony, ruling it "irrelevant" to the case. The next day, the judge changed his mind and ruled Poor Bear's testimony relevant, but still would not let the jury hear it. He ruled this time that Poor Bear's testimony was prejudicial to the government's case and, "if believed," would confuse the jury.
Prosecution testimony, which occupied the first five weeks of the trial, ranged far afield from what happened on the day of the shootings. The prosecution was allowed to bring up extraneous charges against Peltier on which he had not been tried and testimony which ran counter to the federal rules of evidence. The defense's planned two weeks of testimony was shaved to two-and-a half days by Judge Benson, who limited defense testimony to events directly connected with the shootings themselves.
The only other eyewitness testimony that placed Peltier on the scene of the murders (other than that fabricated in Poor Bear's name) came from Frederick Coward, an FBI agent, who said he had recognized Peltier from half a mile away through a seven-power rifle sight. The defense team replicated the sighting and found that the feat was impossible through such a sight at such a distance, even for a person with excellent vision. In court, defense attorneys offered to duplicate their experiment for the jury, so that its members could judge for themselves the veracity of the FBI agent's statement. Judge Benson refused the request. "Finally," said Bruce Ellison, a member of the defense team "we brought in someone from a gun shop, who said that an idiot could tell you that it is impossible to recognize someone, even someone you know, from a half-mile away, through a seven-power sight."
Three Indian juveniles also testified that they had seen Peltier at the scene. Each of them also testified, under cross-examination, that their testimony had been coerced by the FBI. Mike Anderson, the boy who had been involved in a station wagon explosion in Kansas, testified that he had been threatened with beating. Wish Draper said that he had been tied and handcuffed to a chair for three hours to elicit his statement. Norman Brown swore that he was told that if he did not cooperate he "would never walk the earth again."
Following his conviction, Peltier became the object of a growing popular movement demanding pardon or a new trial. Peltier's request for a new trial was turned down by U.S. Circuit Court (St. Louis) in 1978; his appeal also was declined by the U.S. Supreme Court in 1986. In the meantime, Peltier's support spread to the Soviet Union and Europe. In the Soviet Union, by 1986, an estimated 17 million people had signed petitions in his support.
Peter Matthiessen's In the Spirit of Crazy Horse was readied for publication in the early 1980s, making a case for Peltier's innocence. The publisher, Viking, withdrew the book after former South Dakota Governor William Janklow threatened to sue for libel over passages in the book which he asserted falsely demeaned him. Bootlegged copies of In the Spirit of Crazy Horse began to circulate. The book was officially published again in 1991, after the South Dakota Supreme Court threw out Janklow's suit, in part because major portions of the material that Janklow considered libelous had appeared in print during 1979 in a less-well-known book, Wasi'chu: the Continuing Indian Wars, by Bruce Johansen and Roberto Maestas.
In the Spirit of Crazy Horse presents, in an epilogue appended after the book had been suppressed, a case that Peltier was not the murderer of the two FBI agents. In an interview, a native man known only as RXS confesses to the murders. In the meantime, the FBI has withheld from the public 6,000 pages of documents on the case, for reasons the agency characterizes has "national security."
As the movement to free him grew, Peltier was serving two life terms first at Marion Federal Penitentiary, Illinois, later at Leavenworth Federal Penitentiary, Kansas, developing his talents as an artist, including posters, paintings, and designs for a line of greeting cards that were sold nationwide. His case also became the focus of a feature film (Thunderheart) and a documentary (Incident at Oglala). Peltier's appeals were directed by several well-known legal personalties, including former U.S. Attorney General Ramsey Clark and attorney William Kunstler. His third appeal for a new trial was turned down by the Eighth Circuit Court of Appeals in 1993, exhausting his remedies within the United States court system. During the first half of 1994, Banks helped organize a five-month "Walk for Justice" across the United States on behalf of Peltier. About 400 people took part in the march, and twenty-eight walked the entire 3,000-mile distance. The Walk for Justice ended in Washington, D.C. July 15, at a rally calling on President Clinton to pardon Peltier. Runs and walks to free Peltier have been held in several other countries as well, including the Czech Republic and Japan.
After Peltier's petition for parole was denied in 1996, his only hope for freedom (until his next parole hearing in the year 2008) lies in the hands of Clinton, by way of a presidential pardon. A year ago, several Peltier supporters were quoted in the press as saying they expected Clinton to pardon Peltier, largely because he had sounded sympathetic during the presidential campaign.
Many of Peltier's supporters had not reckoned with the bargaining power of the FBI inside the federal bureaucracy. The FBI put 15,000 signatures of its agents on Clinton's desk demanding that Peltier serve his time. At the same time, Janet Reno, U.S. Attorney General and the FBI's boss, held the Peltier clemency file in her office for more than three years before forwarding it to the White House. After Willie Nelson endorsed freedom for Peltier at a concert in Costa Mesa, California, FBI agents among his fans protested vehemently. The FBI, to a man, insists, with the parole board, that the facts of the case have not changed, that Peltier was convicted by a jury, and so he is guilty, as charged, of the two murders. The FBI calls Peltier "a vicious, violent, and cowardly criminal who hides behind legitimate Native American issues."
(No one in the FBI has publicly called for even a hint of an investigation of the third death that tragic day at the Jumping Bull's: Joe Stuntz Killsright. The FBI is responsible under federal law for investigation of major crimes, including murder, in Indian Country.)
Peltier's case has been causing increasing testiness in relations between the United States and Canada, where support for Peltier has been enhanced by the fact that the FBI used the fake Poor Bear affidavits to gain his extradition. Warren Allmand, who was Canada's solicitor general when Peltier was arrested in Canada, and Indian affairs minister when he was extradited, argues now that his extradition was illegal, perjured, and fraudulent. He has called for a new trial or executive clemency, as has Canadian Justice Minister Allan Rock.
Endorsements of a pardon for Peltier have become as commonplace as pierced eyebrows on the rock-concert circuit. Peltier's most fervent supporters are Rage Against the Machine (the "machine" being capitalism), which on one occasion turned over $75,236 from a benefit concert to a Peltier defense committee. "Rage" says that one of its most popular songs, "Freedom," was inspired by Peltier's case. Other celebrity endorsers, in addition to those previously mentioned, include The Indigo Girls, Jackson Browne, Kris Kristofferson, Robin Williams, Joni Mitchell, and Robert Redford.
In addition to the endorsements of entertainment personalities, clemency or a new trial has been advocated by 55 members of the United States House of Representatives, where Peltier's main advocate, Rep. Don Edwards of California, points out that he was once an FBI agent. Peltier has support from Amnesty International, the National Congress of American Indians and the Archbishop of Cantebury. A letter of support arrived at the White House early in 1996 signed by "Subcomandante Insurgente Marcos," "Commander Tacho" and 200 Zapatista comrades in Chiapas, Mexico. The Spanish Human Rights Commission gave Peltier its international prize. Senators Daniel Inouye and Ben Nighthorse Campbell have spoken out on Peltier's behalf, as has Jesse Jackson. Oliver Stone has been reported (by the conservative Washington Times) to have purchased the rights to Matthiessen's book.
A judge on the Eighth Circuit Court of Appeals (which denied Peltier's last appeal below the Supreme Court in 1986), Gerald Heaney, has called for clemency. "It's time for healing," Judge Heaney told an interviewer from The Toronto Sun.
In a few weeks, President Clinton again will be forced to decide whether to heed Judge Heaney's notions of healing, or those of the FBI.