Susan Zakin
Few outside observers believed that Joe Biden would commute the sentence of American Indian Movement activist Leonard Peltier. Biden was too much of an institutionalist. The FBI, and Christopher Wray in particular, vociferously opposed the release of Peltier, convicted of the murders of two FBI agents in 1975.
But on the very day that Donald Trump was inaugurated, Biden signaled the degree of danger that the country faced with a spate of pardons and commutations designed to protect his family members, government officials, and politicians who have spent the past several years defending the rule of law. He commuted the sentence of the 80-year-old Peltier, allowing him to spend his remaining years on home confinement with his family.
On the morning before the inauguration ceremony, Biden issued preemptive pardons for Gen. Mark Milley, Dr. Anthony Fauci, and members of Congress who served on the committee investigating the January 6, 2021, attack on the Capitol. Later that morning, he issued pardons for members of his family: his brothers James and Frank, his sister Valerie, and their respective spouses.
“My family has been subjected to unrelenting attacks and threats, motivated solely by a desire to hurt me—the worst kind of partisan politics. Unfortunately, I have no reason to believe these attacks will end,” Biden said in a statement released as the inauguration ceremony was underway at the Capitol. The statement specified that these pardons should not be construed as evidence of guilt.
Although these gestures appeared unrelated, the story of Leonard Peltier could very well be the past as prologue, a cautionary tale of how lives can be destroyed when the government abandons equal protection under the law, as Trump is all but promising to do in his lame duck presidency.
During the 1970s, the American Indian Movement was one of several radical groups, including the Black Panthers, targeted by the FBI’s counter-intelligence program (COINTELPRO). Years later, it was revealed that COINTELPRO used unconstitutional and illegal methods to quash these movements. The history of this era is complicated. The injustices in both the Black and Native communities were horrific, but many of the radical leaders were flawed and the chaotic days of the 1970s were rife with unintended consequences.
On the Pine Ridge reservation in South Dakota in 1975, the situation was particularly volatile. Pine Ridge land contained valuable minerals, and Dick Wilson, chairman of the reservation’s tribal council, ran an army of thugs called Guardians of the Ogalala Nation, or the GOON squad, to defend his corrupt regime. (For anyone interested in digging deeper, there has been a not particularly convincing but interesting attempt to restore Wilson’s reputation in the intervening years.) As Peter Matthiessen documented in his book In The Spirit of Crazy Horse, in the three years following the American Indian Movement’s occupation of Wounded Knee in 1973, Wilson’s thugs were responsible for a reign of terror on the reservation. Roughly 60 traditional tribal members and AIM members were murdered, and it was generally accepted that Wilson’s vigilantes were responsible.
In 1975, Peltier was one of several AIM members asked to protect the traditional people on the reservation. Tensions came to a head on June 26, 1975 when two FBI agents in unmarked cars followed a pick-up truck onto the Jumping Bull ranch, where Peltier and several AIM activists had set up camp. What happened next has been disputed for decades. What we know for sure is that a shoot-out took place, and when it ended, the two FBI agents and one Native American lay dead.
Matthiessen provides the most compelling account of these events, including the profoundly flawed trials that landed Leonard Peltier in prison for nearly 50 years. Matthiessen, a co-founder of the Paris Review and a prolific author revered for his novels and books on the environment, devoted years of his life to In the Spirit of Crazy Horse. As one would expect, his writing that transcends mere reportage. He described Peltier this way:
“Leonard Peltier was dressed in a white shirt with maroon shoulders, white prison fatigue pants, and sneakers. Upright on his chair, hands on his knees, like someone on his very best behavior, he seemed shy at this first meeting, but there was ‘nothing stiff about him,’ as Bob Robideau had said. At five feet eleven inches, his loose-muscled in his movement, with coarse black hair, deep shadowy brown eyes, a Zapata mustache, a scar on his left cheekbone, a slight puffiness from starchy food…
“Peltier has a husky voice and a warm easy laugh. He likes to tease and be teased, and he laughs infectiously at his own mishaps, but there was none of that loose, back-slapping affability that reports of his sociable and joking ways (“Leonard will bullshit you right out of the room!”) had led me to expect. He was open and friendly but also watchful and contained, as any man might be in the knowledge that, barring a new trial, he will not be eligible for parole until the year 2015…he never complained or showed the smallest indication of self-pity, but his face at moments had a desperate look that made his seeming ease and laughter more affecting.”
But Matthiessen did far more than use his impressive powers of description. He exhaustively researched the 1975 shootout, obtaining voluminous records through Freedom of Information requests. His account casts doubt on Peltier’s conviction, while providing damning evidence of FBI misconduct.
What is known for certain is that more than 40 Native Americans participated in the gunfight. The two FBI agents were wounded, and then shot to death at close range. Despite the presence of many armed men, only AIM members Bob Robideau, Darrell Butler, and Leonard Peltier were brought to trial. Robideau and Butler were arrested first. A federal jury in Iowa acquitted them on grounds of self-defense, finding that their participation in the shoot-out was justified given the climate of fear that existed on the Pine Ridge Reservation. The jury also ruled that neither could be tied to the close-range shootings.
In the meantime, Peltier fled to Canada. He was later extradited and faced trial in North Dakota. The evidence of FBI misconduct in Peltier's case was staggering. The prosecution relied on the testimony of a mentally ill woman who claimed to be Peltier’s girlfriend, but, it was later determined, had never met him. The woman, Myrtle Poor Bear, later recanted and said that the FBI had coerced her into signing false affidavits.
There was more. FBI agents changed their testimony about a bullet casing they had initially said linked Peltier to the shooting. The most consequential gap was the testimony of an FBI agent who said that the two murdered agents had followed a red pick-up truck onto the scene. He later changed his account, stating that the agents had followed a red and white van onto the scene, a vehicle which Mr. Peltier drove occasionally.
The red pickup was the story’s Rosebud. In Peter Matthiessen’s account, it appears that this truck was linked to the man who actually shot the agents. Matthiessen’s detailed forensic reporting included a meeting with this man, an AIM activist who admitted to being the actual shooter. Filmmaker Oliver Stone also met with the man. Both Matthiessen and Stone found his confession convincing.
Yet despite years of incarceration, Peltier has always steadfastly refused to name him. “I hope he’s never identified,” Peltier told In These Times in 1991. “I don’t want him to come forward completely, where he may end up going to prison. There is no guarantee I would be released even if he did. Our struggle was legitimate: we didn’t make, imagine, or create the conditions that Indian people have to live with…This is a good man who is very committed, still working hard for our people. If it had been left up to me, I wouldn’t have ever let him coexist out as far as he now has.”
As recently as yesterday, FBI Director Christopher Wray, in a letter protesting the Biden decision, contended that Leonard Peltier was the man who administered the coup de grace to the two agents. We may never know. But what is clear is that the FBI’s improper actions made a fair trial impossible.
When Peltier's lawyers tried to get him a new trial, Judge Gerald Heaney of the U.S. Court of Appeals Eighth Circuit wrote : “There is a possibility that the jury would have acquitted Leonard Peltier had the records and data improperly withheld from the defense been available to him in order to better exploit and reinforce the inconsistencies casting strong doubts upon the government's case.”
Nonetheless, the court denied Mr. Peltier a new trial, even though, during oral argument, the government attorney conceded that the government does not know who shot the agents.
In 1991, Judge Heaney had sent a letter to Sen. Daniel Inouye recommending clemency for Peltier. He defended the court’s decision based on precedent, but acknowledged that the FBI used improper tactics to convict Peltier and that the FBI was equally responsible for the shoot-out. He also noted that there appeared to have been more than one gunman involved in the deaths of the FBI agents. Heaney's letter is an historical document that provides a snapshot of a violent and deeply unjust world on the Pine Ridge reservation. He alludes to the aggressive and abusive behavior of the two agents, amply documented by Matthiessen, and that there was, essentially, a war going on.
“First, the United States government over-reacted at Wounded Knee. Instead of carefully considering the legitimate grievances of Native Americans, the response was essentially a military one, which culminated in a deadly firefight on June 26, 1975 between Native Americans and the FBI agents and the United States marshals.
Second, the United States government must share the responsibility with the Native Americans for the June 26 firefight. It was an intense one in which both government agents and Native Americans were killed. While the government’s role in escalating the conflict into a firefight cannot serve as a legal justification for the killing of the FBI agents at short range, it can properly be considered a mitigating circumstance.”
The judge mentioned Peltier’s long years of incarceration and wrote: “At some point a healing process must begin.” He urged the president to release Peltier.
Peltier went on to serve 33 more years in prison. While one might not have expected George W. Bush to pardon Peltier, neither did Democrats Bill Clinton or Barack Obama, despite efforts by Amnesty International and numerous Native American support groups. It is also worth noting that not only did the FBI reverse engineer evidence in Peltier’s court cases, In The Spirit of Crazy Horse was unavailable for years after Gov. William J. Janklow of South Dakota and David Price, an F.B.I. agent, sued Matthiessen and his publisher, Viking Penguin, alleging that the author had libeled them. The two sought $24 million in Sioux Falls, S. D., and $25 million in Minneapolis respectively.
Both libel suits were unsuccessful, but the cases dragged on for seven years. In fact, when I tried to find the book while researching FBI targeting of radicals for my book, Coyotes and Town Dogs: Earth First! and the Environmental Movement, I couldn’t buy it, and finally found a copy in the University of Arizona library.
The FBI position has not changed. Christopher Wray, the outgoing FBI director, opposed parole for Peltier and on Monday, he expressed vehement opposition to Biden’s commutation of Peltier’s sentence.
Yet over the years, at least 34 members of Congress have requested Peltier’s release. In 2020, U.S. Secretary of Interior Deb Halland joined that chorus, and it’s likely that her voice was heard in the waning days of Biden’s presidency.
Now, Peltier, is coming home to his family. He is 80 years old and suffers from kidney disease, Type 2 diabetes, a heart condition, and a large and potentially fatal abdominal aortic aneurysm. But Peltier, true to form, has shown little bitterness.
“He loves you all,” said Nick Tilsen, founder of the NDN Collective “This is a good day for Indian people. This is a good day for indigenous people and human rights defenders everywhere.”
Peltier himself reportedly said, simply, “It’s finally over. I’m going home.”
While Peltier's incarceration is over, an era of broader repression may be beginning. In June, Trump threatened to “appoint a real special prosecutor” to go after Biden and his family.
The fact that President Biden felt that was necessary to pardon such a broad swath of Americans, from Anthony Fauci to the husband of his sister Valerie, presumably based on intelligence reports, should be alarming to anyone in the U.S. who has engaged in dissent. In the prizewinning journalist Masha Gessen's "Rules for Survival in Autocracies" the first rule was: "Believe the autocrat. He means what he says."
Susan Zakin is the Journal's editor.
Mercy Mercy Mercy ::: Cannonball Adderley Quintet
Pardon Denied Again ::: Robert Pete Williams
Look At Us/Peltier ::: John Trudell
Wounded Knee ::: Marty Stuart
Listening/Honor Song ::: John Trudell
Have Mercy ::: The Rolling Stones
Coyote Dance ::: Robbie Robertson & Red Road Ensemble
Crazy Horse ::: John Trudell
John Trudell on Leonard Peltier