Leonard Peltier is running out of time. At 71, the Native American activist who was convicted—many believe wrongly—of the murder of two FBI agents in 1975, has served 41 years in prison, six of them in solitary confinement. He is sick with diabetes, has suffered a stroke, and was recently diagnosed with an aortic aneurysm. Yet, with no option for parole until 2024, he will almost certainly die behind bars—unless President Barack Obama, the one person with the power to commute his sentence, grants Peltier the chance to live his last years in freedom.
Earlier this year, legendary trial lawyer Martin Garbus asked Obama to do just that. On February 19, he filed a petition for clemency and an application for compassionate release to the president on Peltier’s behalf. He was joined in this effort by Cynthia K. Dunne, a former assistant US Attorney, and Carl Nadler, an attorney with Arnold and Porter.
In their five-page letter, reprinted in full below, the three lawyers emphasize the “reconciliatory” role that granting Peltier clemency could play and the injustice of his original trial. They urge Obama to “examine the case and circumstances surrounding Mr. Peltier’s conviction through a lens that looks beyond the emotional and institutional objections.” They implore him “to stand on the side of history that sends a message throughout Indian Country that American Indians are valued members of society and are entitled to the full protections of the laws.”
This is not the first time the former American Indian Movement activist has appealed for clemency. In 2000, as then-President Bill Clinton’s second term was coming to a close, Peltier submitted a petition for clemency. Peltier’s daughter has written that she and others believed that Clinton was close to granting him a pardon but that the pPresident backed down after hundreds of FBI personnel protested outside the White House. Soon after, Clinton left office, George W. Bush came to power, and Peltier remained in prison. Marc Rich, a fugitive financier, went free.
Garbus says that he and his colleagues have yet to hear a response to their letter from the Obama administration. Still, they are holding out hope that the president will dig deep into the humanitarian recesses of his heart and grant clemency to a man who is still hailed as a leader among Native Americans. Obama—and, by extension, Peltier—has until Friday, January 20, 2017.
Dear President Obama:
We respectfully and urgently request that you grant our client Leonard Peltier Executive Clemency, and commute his sentence to the forty years he has already served. We respectfully submit that when considered in the context of the unique circumstances surrounding Mr. Peltier’s case, the time has come for the interests of the law enforcement community to be balanced against principles of fundamental fairness, reconciliation and healing.
The deaths of Special Agents Coler and Williams was a tragedy, and nothing in this letter or in Mr. Peltier’s Petition is meant to minimize the gravity of the offense or the pain that their families have endured. Mr. Peltier has repeatedly expressed his remorse, regret and sadness that the events of June 26, 1975 led to the deaths of young men engaged in their official duties. He is particularly sad that the events of that day led to continuing pain for the families of Agents Coler and Williams.
Nonetheless, Mr. Peltier’s case is widely viewed throughout Indian Country and beyond as emblematic of the worldview and prejudices of the 1960s and 1970s against Native Americans. Tensions were high between Native communities and law enforcement agencies, and the unfortunate apathy of law enforcement (and others) for the protection of the rights of Native Americans was well documented at the time by the United States Civil Rights Commission as well as South Dakota’s Civil Rights Advisory Committee. Their reports and recommendations for intervention and for the monitoring of law enforcement efforts were ignored until years after the incident.
Mr. Peltier’s conviction must accordingly be evaluated in the context of the politically charged, violent and polarizing environment of the Pine Ridge Reservation in 1975, where the incident took place. A group that called itself the “GOONS” (the Guardians Of the Oglala Lakota Nation)—funded in part by a federal grant for a “tribal ranger” squad—were operating under the supervision of the then-corrupt tribal government, had killed more than 50 members of the Oglala Lakota tribe, and had assaulted hundreds others. During this time period, Pine Ridge Reservation was the murder capital of the nation.
Mr. Peltier and others were summoned to the Reservation to help protect traditional tribal members who opposed the corrupt tribal government. On June 26, 1975, two young Special Agents were dispatched alone—without backup—onto private property on the Reservation to make an arrest. As the jury that acquitted Mr. Peltier’s codefendants necessarily found, the ensuing shootout was a direct result of the then-rampant violence against traditional Native Americans on the Pine Ridge Reservation.
None of this justifies the close-range shooting of Special Agents Coler and Williams, but it bears note that Mr. Peltier’s crimes were not committed for financial gain nor any other personal motive. They were part and parcel of the political struggles this country experienced in the 1960s and 1970s and the dangerous environment on Pine Ridge Reservation.
Over the decades, the FBI’s opposition to Mr. Peltier’s release has focused on how guilty he allegedly is of the underlying crimes, the importance of holding someone accountable for the deaths of the two federal agents and fears that Mr. Peltier might criticize the FBI, if released. These arguments fail to address the process and circumstances that led to and contributed to Leonard Peltier’s conviction, and as a result, do not speak to the main thrust of this Petition.
As is detailed in the accompanying Petition, and has been repeatedly found by reviewing courts, the government crossed ethical lines, fabricated evidence, withheld exculpatory evidence, and otherwise did everything necessary to secure Leonard Peltier’s conviction. Accordingly, the finality of the guilty verdict against Leonard Peltier in the federal courts—which Mr. Peltier accepts—must not be interpreted as an endorsement of the means that were employed to achieve the result.
Nearly sixteen years ago, Judge Gerald Heaney of the Eight Circuit Court of Appeals, who presided on two appellate panels that considered Mr. Peltier’s appeals at different stages (and authored one of the decisions), wrote to the Senate Committee in 1991:
“pLeonard Peltier was tried, found guilty, and sentenced. He has now served more than fourteen years in the federal penitentiary. At some point, a healing process must begin. We as a nation must treat Native Americans more fairly. To do so, we must recognize their unique culture and their great contributions to our nation. Favorable action by the President in the Leonard Peltier case would be an important step in this regard.
There is no question that Mr. Peltier’s release would resound as a positive step towards reconciliation throughout Indian Country, and would demonstrate by Executive action that under today’s worldview American Indians are valued members of our society. As Professor James Anaya, former United Nations Rapporteur for Indigenous Rights wrote to you by letter dated October 28, 2015:
In my opinion, if Leonard Peltier dies in jail, then he will likely die a martyr and the relationships and progress that you and your Administration have worked so hard to forge likely will be dealt a significant set-back… I respectfully submit that the time has come for the significant interests of law enforcement to yield to the significant interests of fundamental fairness and reconciliation and healing with America’s first peoples….
There are very few things that a sitting President can do to signal significant and meaningful reconciliation for America’s first peoples, but as I pointed out in my 2012 [United Nations] report, granting Clemency to Leonard Peltier is one of them. Such action would resonate as a sign of singular importance for the equal application of the rules of the justice system to all indigenous peoples in this country.
In addition the National Congress of American Indians, the largest and most representative Indian organization in the nation, has urged reconciliatory action, as referenced in its October 12, 2015 letter, where it states:
Mr. President, you are faced with a profound opportunity to build upon all of the wonderful work you have done addressing the inequalities that continue to face the first peoples across the nation and addressing the history of oppression and distrust. By granting Executive Clemency to Leonard Peltier you will be sending a statement to the world that going forward America will not sanction injustices and unfairness towards indigenous peoples.
Mr. Peltier is 70 years old. He suffers from serious medical problems that impair his ability to walk, to see, and to conduct normal life activities. He suffers from diabetes, high blood pressure, and a heart condition. He is ill-equipped to cope with life in the maximum security prisons in which he has been jailed for many years.
Hypothetical fears over Mr. Peltier’s release are unfounded. If released, Mr. Peltier will return to his home on the Turtle Mountain Reservation, where he will become acquainted with his grandchildren and great grandchildren, get medical treatments for his various health conditions, and continue creating paintings that celebrate his Native heritage. Mr. Peltier will not engage in any action or conduct that incites violence or which could potentially jeopardize his freedom, which he has fought so long and hard to achieve. He hopes to do everything in his power to be a positive force in his host community and to give back to the hundreds and thousands of people who have stood beside him for so long. He will not be a burden nor a danger to anyone.
More than most, Mr. Peltier understands the importance of reconciliation, forgiveness and peaceful collaborative action in order to advance and preserve his Native culture, traditions and pride, and to ensure that the rising generations of America’s first peoples continue to celebrate and appreciate their heritage.
For over forty years Mr. Peltier’s case has retained the support of your fellow Nobel Laureates including Archbishop Desmond Tutu, Jody Williams, Rigoberto Mencu Tum, Adolfo Perez, Esquivel Mairead Maguire, Shirin Ebadi Tawakkol Karman and the Dail Lama, as well as religious and human rights leaders from around the world including, Coretta Scott King, the Robert F. Kennedy Memorial Center for Human Rights, the Rev. Jesse Jackson, the National Council of Churches, dozens of members of Congress, political leaders of Canada, and before his death, Nelson Mandela. In addition the National Congress for American Indians, Amnesty International, and former United Nations Rapporteur James Anaya all recognize and stress the historic importance of this case throughout Indian Country, and continue to support Clemency for Mr. Peltier as an essential reconciliatory action.
We respectfully submit that the very fact that for over 40 years so many activists, human rights leaders and Native communities remain committed to seeking reconciliatory action for Leonard Peltier, is itself compelling proof that there was a miscarriage of justice which requires thoughtful review and equitable resolution, taking into account the time already served. The supporters of this Petition include scholars and human rights experts who serve an essential function in our democracy; they operate as watchdogs and raise their voices in those rare instances like this, where there is a need for the Government to examine and re-evaluate its conduct, because even with the best of intentions, we are all human.
Mr. Peltier has exhausted all appeals and is next eligible to apply for parole in 2024, in the unlikely event that he lives that long. The Parole Commission has yielded to the objections of the FBI and DOJ in denying Mr. Peltier’s applications for parole at every turn. Effectively, this Petition represents the last chance in Mr. Peltier’s lifetime for the Government to take curative and/or reconciliatory action.
We respectfully urge you, Mr. President, to examine the case and circumstances surrounding Mr. Peltier’s conviction through a lens that looks beyond the emotional and institutional objections, and to stand on the side of history that sends a message throughout Indian Country that American Indians are valued members of society and are entitled to the full protections of the laws. This is the minimal standard that we regularly demand of other nations for their indigenous communities, and it is time for us to do the same.
Martin Garbus, Esq.
Cynthia K. Dunne, Esq.
Carl Nadler, Esq