Published, July, 16, 1993
Copyright © 1993 Inside UVA
Although well-known authors have written about him, public figures from the Rev. Jesse Jackson to Marlon Brando have declared their support and congressmen have submitted amicus briefs on his behalf, Native American Leonard Peltier remains in prison convicted of murdering two F.B.I. agents on a South Dakota Indian reservation 18 years ago, awaiting yet another appeal decision.
A recent U.Va. conference for K through 12 teachers on Native Americans, past and present, included a talk by law school alumnus John C. Lowe, who was part of the defense team for Mr. Peltier. Mr. Lowe also represented Robert Robideau, one of two other Indians acquitted for the killings.
In addition to hearing Native American artists and scholars speak, conference participants watched a documentary on the case of the reservation murders called "Incident at Oglala," produced by Robert Redford.
It has never been clear who fired first on June 26, 1975, at the Jumping Bull residence on Pine Ridge Reservation or why special agents Ronald Williams and Jack R. Coler pursued a red pickup onto the property. What is clear is that the agents, wounded after a shootout started, were then finished off at close range. Although there were no eye witnesses to the execution, according to Mr. Lowe, the F.B.I. brought the full weight and power of governmental resources to the prosecutions of Robert Robideau, Dino Butler and Leonard Peltier, all of whom were leaders in the American Indian Movement (AIM), a civil rights group active during the 1970s that stressed getting back to traditional Indian culture.
During the shooting, a number of women, children and older folks managed to leave the area unharmed. About 15 others, including the three men later charged, escaped on foot despite dozens of F.B.I. agents, state law enforcement and Bureau of Indian Affairs police scouting for them and shooting, five roadblocks set up around the property and at least one plane trying to locate them. In the documentary, several Indians in the party said one of them spotted an eagle and the group followed its flight, which led to safety -- at least temporarily.
Mr. Robideau and Mr. Butler faced trial for aiding and abetting in the deaths of the two agents a year later. Although he fled to Canada, Mr. Peltier was extradited in December 1976 and found guilty of first-degree murder in April 1977. Former U.S. Attorney General Ramsey Clark is currently representing him in another appeal, for which Mr. Lowe wrote the brief, that he did not receive a fair trial, and the decision could come any day now. "I want to believe that they're working on an opinion that will bring some justice to his case," said Mr. Lowe of the Eighth Circuit Court of Appeals.
No one was ever charged with the death of one of the Native Americans during the shootout.
Having made his reputation as a civil rights lawyer in the South (and perhaps better known for filing suit against U.Va. in 1969 for not admitting women), John Lowe was urged to put his name in the volunteer pool and was picked as Mr. Robideau's lawyer. A flashy personality named William Kunstler represented Mr. Butler. "No South Dakota lawyer would take any of the Indians' cases," said Mr. Lowe, hinting at the anti-Indian sentiment of many whites in the area at the time. Moving the trial to Cedar Rapids, Iowa, didn't seem much better, but he said Judge Edward McManus "bent over backwards to be fair."
One of the most distressing things about working on the case was the F.B.I.'s misconduct. "I had been raised that the F.B.I. could do no wrong. It was inconceivable to me that an agent would lie on the witness stand or tamper with evidence," said Mr. Lowe. "We one-two punched the government's case. We convinced the jury there was reasonable doubt that Robideau and Butler were responsible for the killings."
Some agents were openly weeping in the courtroom, they were so surprised by the verdict, he said. "After the other two got off, the F.B.I. wasn't going to let Peltier live peacefully in Canada."
Mr. Peltier's extradition was based on fraudulent affidavits, according to Mr. Lowe. FBI agents pressured false statements out of a mentally incompetent woman named Myrtle Poor Bear, in which she claimed to be Leonard's girlfriend and to have seen him kill the agents. Not only did the two not know each other, but it was later found that she was not at the scene that day. The trial was mysteriously moved to Fargo, North Dakota, "an extremely conservative community," added Mr. Lowe. The new lawyer serving as lead counsel, Elliott Taikeff, did not follow Mr. Lowe's advice or the same strategy that had worked in the previous trial. "By the second or third day, I saw the handwriting on the wall," sighed Mr. Lowe. "Every ruling went against us."
With ballistics evidence, the FBI tried to prove that Mr. Peltier was the only one using a semi-automatic weapon called an AR-15, and therefore, the shell found in the trunk of one of the agent's cars must have been fired by him, even though the shell couldn't be definitely matched to the gun. Mr. Lowe said that years later FBI documents made available under the Freedom of Information Act showed the FBI knew that more than one AR-15 had been fired at the scene.
"I'm satisfied that the answer [of who really killed the agents] lies with that red pickup truck," he said. "That hurt the FBI, because they had a record of an agent seeing that truck leave right after the time of the murders," but at Mr. Peltier's trial the prosecutors did their best to confuse the identification of this vehicle.
Another tactic the prosecution used was making AIM seem like a dangerous terrorist group. The jury was escorted by a S.W.A.T. team and rumors were spread that AIM members were planning violent activities, none of which occurred, for example.
"What I observed firsthand was AIM trying to do the right thing. Nowadays these people are too busy surviving to be political anymore, but a lot of them have been motivated to go back to traditional ways," said Mr. Lowe.
He emphasized how bad life on the Pine Ridge Reservation had become, due to violence as well as "the worst poverty I have ever seen." Adult unemployment was a staggering 70 percent. Only one in 50 families had a telephone, and the reservation was so vast, police could easily be two hours away. "You heard about the goons in the movie -- they were killers. When an unfamiliar car came on your property, you grabbed your gun and turned out the lights," Mr. Lowe explained. The goons, ("Guardians of the Oglala Nation,") were a private police force hired by the corrupt president of the tribal council, Richard Wilson, and paid with federal highway funds. "Wilson and the goons kept things going the way the bureaucrats wanted," he added. A good view of the terror they created can be seen in the commercial film, " Thunderheart", directed by Michael Apted who also did the documentary, said Mr. Lowe.
This case shows the importance of police authority, he said, when a teacher asked him to suggest what students could learn from it. "When a police officer is dishonest in court, the whole system breaks down. We have to prosecute them to let them know that's not acceptable. We have to maintain high standards." He also pointed to the reality of the devastating poverty as an important lesson. On a more positive note, the case could serve as "an inspiration to do what's right," he said.
"Some things are wrong, some things are right -- that's the way I was raised."
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