Over the course of his tenure, President Trump issued 143 pardons, but he showed no mercy to Leonard Peltier. In this episode Leonard reacts to Trump’s snub; filmmaker Kevin McKiernan joins us for a conversation with Indian treaty expert Charles Wilkinson; and Carol Gokee from the International Leonard Peltier Defense Committee shares important updates on Leonard’s case and medical condition.
Over the course of his tenure, President Trump issued 143 pardons, but he showed no mercy to Leonard Peltier. In this episode Leonard reacts to Trump’s snub; filmmaker Kevin McKiernan joins us for a conversation with Indian treaty expert Charles Wilkinson; and Carol Gokee from the International Leonard Peltier Defense Committee shares important updates on Leonard’s case and medical condition.
SEASON TWO, EPISODE ONE
TREATY DEFENDER
PETER COYOTE
Good morning everyone. I’m not sure if this is such a good morning but I don’t know how to open this letter to everyone.
VO
This is the celebrated actor and writer Peter Coyote reading an email from Leonard Peltier sent on January 20th, 2021 at 9:50 am, the morning after President Trump’s final day in office.
Over the course of his tenure, Trump issued 143 pardons: 1 in 2017, 6 in 2018, 8 in 2019, 12 in 2020, and 116 in January 2021. But he showed no mercy to Leonard.
PETER COYOTE
Yes, I heard the loser did not sign my clemency. I had this strong feeling yesterday that I wasn’t going to get it. I don’t know why I had it? I guess it was the spirits telling me, so I sat down trying to write you all a letter but my tears of self pity must have overwhelmed me as I could not see to finish it. So I had to stop for a while and think about my family and friends and peoples and how it must be for them too. So I pulled myself together and thought to myself well I’m not going to give up. It’s been a hard 45 years, and it will get a lot harder I’m sure as I age and in the moments when hopelessness overtakes me, but at my age all I can do is ask so many of you to stay with me and let’s try again.
VO
You’re listening to LEONARD—a podcast series about one of America’s longest-serving political prisoners: Leonard Peltier. I’m Andrew Fuller.
And I’m Rory Owen Delaney. We’ve spent the last three years working to share Leonard’s story with a new generation of people: who he is, how he ended up behind bars, and why we believe he deserves to go free.
This is Season 2, Episode 1, Treaty Defender. We interview Indian treaty expert Charles Wilkinson and catch up with one of the International Leonard Peltier Defense Committee’s newest board members, Carol Gokee, who shares important updates on Leonard’s case and medical condition.
Leonard Peltier is an American Indian Movement activist who has spent the last 45 years in prison for killing FBI agents Jack Coler and Ron Williams in a notorious shootout on the Pine Ridge Indian Reservation. Over the decades, some of the most influential people on the planet have called for Leonard’s release. The Pope, the Dalai Lama, Nelson Mandela, Desmond Tutu, Kurt Vonnegut, Marlon Brando, Willie Nelson, and Tom Morello have all called publicly for his release.
In Season 1 we focused on setting up why June 26th, 1975 happened as we appealed for a pardon from President Trump. Given his opinion of the FBI, it seemed like a real possibility. Presidents Clinton and Obama failed to act for all the right reasons, so maybe Trump would do it for all the wrong ones.
But it didn’t happen. And that means we’ve still got work to do.
Time is running out. In 2021 Leonard will turn 77 years old, and although he has finally been vaccinated for COVID-19, his health remains poor. Coleman Federal Penitentiary is the last place he should be, so it’s literally now or never to help get Leonard released.
This season we’ll unveil how Leonard and the other AIMsters wound up back on Pine Ridge by accident on June 27th and had to escape for a second time before breaking down the flawed FBI investigation, Leonard’s problematic extradition from Canada and the ensuing criminal trials.
In the first trial, Leonard’s co-defendants Dino Butler and Bob Robideau appeared together in court in Cedar Rapids, Iowa, where they were acquitted of murder. In the second, Peltier stood trial all by his lonesome in Fargo, North Dakota where a jury found him guilty based on essentially the same evidence.
But first, let’s review the series of events leading up to the June 26th shootout in Oglala, South Dakota. What was the FBI doing there? And why were AIMsters armed with AR-15s? The historical context is illuminating.
In the summer of 1968, a group of Indians formed AIM: the American Indian Movement.
Much like the Black Panthers—or Black Lives Matter half a century later—AIM was created to focus attention on police brutality and endemic poverty in native communities.
It’s worth noting here that AIM was actually founded in Minneapolis—50 years before George Floyd was murdered by Derek Chauvin while three other officers stood guard.
To bring maximum attention to police brutality, economic inequality, and legal injustice, AIM masterminded a series of high-profile occupations and protests.
In November 1969, a coalition that included AIM seized the island of Alcatraz in San Francisco Bay.
RICHARD OAKES
We the Native Americans reclaim this land known as Alcatraz Island in the name of all American Indians by right of discovery. We wish to be fair and honorable in our dealings with the Caucasian inhabitants of this land and hereby offer the following treaty: We will purchase said Alcatraz Island for $24 in glass beads and red cloth, a precedent set by the white man’s purchase of a similar island about 300 years ago. We will give to the inhabitants of this island, a portion of that land for their own to be held in trust by the American Indian government. To be administered by the Bureau of Caucasian Affairs.
Not long after the occupation ended, Alcatraz leader Richard Oakes was shot to death in Sonoma, California by a white supremacist named Michael Morgan.
Furor at Morgan’s not-guilty verdict sparked outrage among Indians across the country. And in October, 1972, their rage coalesced into “The Trail of Broken Treaties”.
Organized by AIM, a caravan of cars, vans, and busses set off from California bound for Washington, D.C.
When they got there, AIM demanded to meet with President Nixon so they could deliver a 20-point position paper articulating their grievances.
But the Nixon administration refused to receive them. So AIM seized the Bureau of Indian Affairs building in D.C. and held it for 6 days.
After the occupation of the BIA building, tensions increased on Pine Ridge following the murder of Wesley Bad Heart Bull in January 1973. His killing sparked the Custer Courthouse Riots, the first major outbreak of violence between white men and Native Americans since the 1890 Wounded Knee massacre.
In response the Attorney General assigned 65 Marshals to the Pine Ridge Reservation, signifying the beginning of the new Indian Wars.
On one side was tribal president Dick Wilson and the Goons, who were backed by the federal government. On the other was the Oglala traditional community, who were discriminated against for their native practices and called on AIM for protection.
That same year, the traditional people attempted to remove President Wilson from power. But the impeachment failed when it was illegally terminated by Wilson himself.
In late February, when the traditionals marched in protest, they were rebuffed by the Marshals, who had no legal jurisdiction on the reservation in the absence of any major crimes. The result was a second Wounded Knee.
WOUNDED KNEE WILD AUDIO
Message from Wounded Knee. There’s supposedly a Red Cross worker by the bunker that has been pinned down for the last hour.
Alright. Tell them they’ve got 10 minutes. One person with a white flag. And no weapons. If they have weapons, we’ll open fire.
Little Big Horn, Little Big Horn, Hawk Eye and Little California. Hold your fire. Do not open your fire. We have 10 minutes with one man under a white flag. If anyone opens fire, this man is dead.
VO
Wounded Knee was the longest civil disorder in American history. The standoff against FBI agents and clandestine U.S. military advisors -- both groups with automatic weapons -- lasted for 71 days from February 27th to May 8th, 1973.
To coax the Indian protesters to surrender, the White House promised to appoint a commission to review the Fort Laramie Treaty of 1868. In exchange the Indians agreed to lay down their arms.
But the commission ultimately went nowhere and the same Nixon aide who had rejected the Twenty Points presented to the US gov’t on the Trail of Broken Treaties sent the following letter. “The days of treaty making with the American Indians ended in 1871, 102 years ago.”
The aide was referring to the Congressional Act of 1871 that states, “No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty.”
Almost a year later, in 1974, AIM activist Russell Means ran against Dick Wilson for the office of tribal chairman of the Pine Ridge Indian Reservation. In the primary Means won by approximately 150 votes. But after the final tally on February 6th, Wilson was declared the winner.
The US Commission on Civil Rights declared Wilson’s reelection “invalid” after an investigation revealed that nearly one third of the votes were tainted. But the Justice Dep’t took no action, so Dick Wilson ordered everyone who had supported Means off the res, and his goons embarked on a reign of terror.
DICK WILSON
Because I won’t tolerate them. And I won’t call in the Marshals this time either. We’ll handle them ourselves. We have one of the finest BIA police forces in the country, and when we put them together, they’ll be able to take care of whatever needs to be taken care of.
That’s Dick Wilson. During his time in office, nearly 100 people, most of them AIM members or traditionals, were victims of unsolved murders or accidents in what South Dakota U.S. Senator Abourezk described as “total anarchy.”
Unable to create change within a corrupt system, the Oglala Lakotas took action. On June 1st, 1975, 25 days before the deadly FBI shootout, the Pine Ridge traditional chiefs declared independence, signing a formal resolution of sovereignty based on the 1868 Fort Laramie Treaty.
JEAN ROACH
Leonard and them served as security because this community was organizing to pull away from Pine Ridge. They wanted to control their own community. So that was the plan and that was the organizing that was going on at the time. And on top of that the American Indian Movement or anybody related were being attacked. Everybody lived by the law of the gun. Everybody.
This is Jean Roach. In the summer of 1975 she was 14 years old when her mom, an AIM activist, sent her and her 11 year old brother Jimmy to camp on the Jumping Bulls property in Oglala.
Also living on site were Angie and Ivis Long Visitor with their three small children as well as elders Harry and Cecilia Jumping Bull, who were both in their mid 70s.
In Season 1 we established that AIM was invited to Pine Ridge to protect women and children from Goon violence. But AIM was also in Oglala to defend the Lakotas’ treaty rights. Leonard Peltier was a treaty defender. And that makes him dangerous.
Which is why for nearly five decades, powerful forces have exerted their influence to keep him behind bars. Forces that Leonard is attuned to instinctively.
PETER COYOTE
I’ve been reading legal info about people who have been released on compassionate grounds, and some have triple and more murders with no parole. So why am I still here when I was told the sentence they gave me has been served?
VO
It is a valid question. By customary federal guidelines, Leonard got a raw deal when he was sentenced in 1977. As attorney Larry Hildes explains:
LARRY HILDES
If he had been anybody else, under the sentencing guidelines, you were to serve 17 and a half years for each murder -- each supposed murder -- and he would’ve been out nine years ago. He's still there.
He’s still there because he’s a political prisoner.
As a Native American activist and member of the American Indian Movement, Leonard was involved in a firefight defending treaty land, the ownership of which is disputed by two sovereign states: the United States and the Oglala Sioux Nation.
To help us better understand the implications of the Fort Laramie Treaty of 1868 and the Congressional Act of 1871, we talked with Charles Wilkinson, the Moses Lasky Professor of Law Emeritus at the University of Colorado.
Prior to becoming one of just 25 Distinguished Professors on the Boulder campus, Charles left corporate law to join the Native American Rights Fund as a staff attorney. NARF is the oldest and largest nonprofit legal organization defending the rights of Native American tribes, organizations, and people.
CHARLES WILKINSON
Well, I was with big firms in Phoenix and San Francisco, and you're just moving money around. That's all it was. And I realized that kind of, it was a year I went to NARF, 71, but I was still at Bronson Bronson and McKinnon, and I tried a case and it went to the jury and I was sitting in the courtroom waiting for the jury to come back. And I realized that I didn't care who they came back for.
[LAUGHTER]
CHARLES WILKINSON
It just didn't matter. One corporation or another. And so I went with NARF, and it was technicolor. And I don't mean that really in terms of Indian-ness, but just in terms of the full beauty of the law.
VO
Charles is in his late 70s, clean shaven with silver hair and spectacles. He’s Zooming with us from his campus office.
Over the years, Charles has written fourteen books including the standard law casebooks on Indian Law and Federal Public Land Law.
His awards include the National Wildlife Federation's National Conservation Award; the Warm Springs Museum's Twanat Award for tireless work for Indian people; and the Federal Bar Association's Lawrence R. Baca Award for Lifetime Achievement in Indian Law.
The point being, Charles knows what he’s talking about. So we were super thankful when our consulting producer Kevin McKiernan arranged a video conference.
Kevin interviewed Charles for his 2019 documentary “From Wounded Knee to Standing Rock.”
In Season 1, Episode 5, “Coincidental Witness,” Kevin speaks about his experiences as a reporter on the ground during Wounded Knee and the Incident at Oglala.
KEVIN MCKIERNAN
So maybe I could just start and ask you, what is the difference between a treaty with an Indian nation and a treaty with a foreign power?
VO
That’s Kevin. Not only was he nice enough to arrange the interview, he pretty much conducted it, which was fine by us. He’s a pro.
Like Charles, Kevin is also in his 70s. And while you can’t see his moustache in this medium, know it’s there. It beautifully encapsulates his personality much like the moustache of the great Salvador Dali or Tom Selleck. Watch one of Kevin’s films and you’ll know what we mean.
Much like Rory’s beard. He hasn’t shaved in the 15 years I’ve known him. Often when we’re working and I want a snack, I’ll just look over and see what crumbs are currently being offered.
But back to treaties.
CHARLES WILKINSON
The Constitution says that laws of Congress and treaties made will be the Supreme law of the land. And treaties go through a very formal ratification process in the Senate. And from the beginning, Indian treaties went through the same process as foreign treaties did. And in fact in the early years of the Republic up until the 1820s, a large majority of the treaties were Indian rather than international. And so they really are constitutionally two equal procedural devices if you'll put it that way. And particularly at the beginning, there was as much solemnity and necessity from the side of the United States as there were with international treaties. So as legal documents, they are essentially identical.
KEVIN MCKIERNAN
What do you say to someone with only a general understanding of history that, you know, treaties are dead and gone with Indian people, and why are they still complaining about it?
Charles W. (00:03:39):
Well, Congress did decide in 1871 not to make further treaties with tribes, but specifically provided that all existing treaties would remain fully in effect.
VO
So the Nixon aide got it wrong. The Congressional Act of 1871 cannot cancel out the Fort Laramie Treaty of 1868 because of simple chronology. Since Laramie preceded the legislation, it remains legally binding.
Treaties are laws that carry a sense of morality about them and high purpose. And so tribes over the years -- and it's been stunning what they've done with all the hammering they took for so long -- continued to insist that the treaties were still in effect. And they took them to court and almost always won. And that continues today.
And the tribes treasure their treaty rights, and one of them is tribal sovereignty, is the right to govern themselves. And to be the government in Indian country, which today in the lower 48 is 60 million acres -- the size of Colorado -- is Indian country that is governed by tribes with courts and administrative agencies and legislatures. And that comes from the treaties.
RORY
I hear this a lot from people they'll say, well, you know, the Indians are a conquered people, so, you know, they just have to kind of deal with it.
One of the folks who actually used these words was the FBI’s Norman Zigrossi. Back in 1975, Zigrossi was appointed to lead the investigation into what happened on June 26th by the Bureau’s number two man at the time, Richard Held.
In the April 7th, 1977 issue of Rolling Stone Magazine, Zigrossi said: “They’re a conquered nation. And when you’re conquered, the people you’re conquered by dictate your future. This is a basic philosophy of mine. If I’m part of a conquered nation then I’ve got to yield to that authority.”
CHARLES WILKINSON
Well, it's really ignorant to say that, and probably racist in this case. And I guess the best I can say is that when you look at it overall, the tribes have won that argument. It's not even an argument. The tribes are sovereign governments and their members are citizens of a sovereign nation. And so I'd say they aren't conquered peoples. They're sovereign nations.
KEVIN MCKIERNAN
You have a treaty with an Indian nation. What does Indian nation signify?
CHARLES WILKINSON
As a general matter, a nation is a group with a common history and a common culture that makes laws and enforces them. That's what sovereignty is, is governance. And so today we have three sources of sovereignty in the United States of America. One is federal. Another is state. And the third source of sovereignty is Indian tribes. And again the land in the West is about the size of a large Western state. And so it has considerable contemporary significance. Treaties are with us today. They're stronger today than they were two generations ago.
Tribes have undergone an extraordinary revival. I started 50 years ago, working with tribes, and the tribes would commonly have one, one and a half, or zero employees. And today, the larger tribes, amounting to over 90% of Indian people, have governments with over 300 employees. And most of them are larger than the nearby County government.
And so now there really is an understanding that tribes are governments, and some people don't like it, but some people don't like the fact that there are County governments either or federal governments. And I know discontent continues, but discontent continues with a lot of things.
KEVIN MCKIERNAN
So recently we saw the president visiting Mount Rushmore and protesters there, some of them carried signs that said, “You're on treaty land.” What were they talking about?
CHARLES WILKINSON
They were talking about the fact that this was part of the Great Sioux Reservation set up by the Treaty of Fort Laramie. And that the tribes no longer owned the land, but it still is their traditional land. And they thought they ought to be respected. And it would have been so easy for the Trump party to make some recognition and acknowledge that.
Kevin and Charles are referring to President Trump’s infamous Fourth of July Spectacular.
Like many things Trump did, it came with a lot of controversy. Controversy that was compounded by his refusal to meet with tribal leaders to hear their grievances.
On July 3rd, 2020, protestors clashed with the police over a blockade on the access road.
NICK TILSEN
This is the land of the Oshete Shalkoe. And we’re prepared to stand our ground. We’re prepared to stay here.
That’s the voice of Nick Tilsen, an Oglala Lakota who serves as the president and CEO of the NDN Collective, a Rapid City based nonprofit.
PROTEST WILD AUDIO
This is an unlawful assembly. Please vacate the premises immediately.
When the assembly was declared unlawful, the Air National Guard moved in, dressed in riot gear, pushing the protesters back.
During the confrontation, a soldier used a heavy riot shield to push Tilsen backwards. Tilsen grabbed the shield. He was arrested, charged with felony theft and robbery, and was looking at nearly 17 years in jail if convicted.
But Biden’s Justice Department offered a deal. All charges would be dropped against Nick Tilsen and the 19 other treaty defenders arrested that day if they completed a diversion program.
After the break, Charles explains the significance of the Fort Laramie Treaty.
BREAK #1 - Celebrity Mashup
CHARLES WILKINSON
The Treaty of Fort Laramie was one of the most significant treaties. And it came at a time when the Sioux nations were as powerful or probably more powerful militarily than the United States of America. And so this was a treaty that the United States wanted. They wanted peace with the Sioux and they agreed to tear up and burn their forts in the Powder River country that the Sioux objected to.
CHARLES WILKINSON
And by the way, we talked about the comparison with international treaties, American courts treat Indian treaties differently than international treaties and more favorably toward the tribes than international states. And so treaties with the tribes are construed in favor of the treaties. They're construed in terms of the United States being a trustee and having a high and special obligation toward tribes. And you really see it in this treaty, and, so this great Sioux reservation that was established in this treaty was 60 million acres West of the Missouri River in the Dakotas. And it was their land. It was their land, and the treaty made the requirement that it could not be changed. Land could not be changed unless three quarters of the adult males of the tribes agreed. And that shows you the leverage that they had because you wouldn't see that kind of provision in an international treaty.
KEVIN MCKIERNAN
What happened to the Fort Laramie treaty?
CHARLES WILKINSON
The California gold rush in ‘49 spread throughout the West and by the seventies, it hit the Dakotas hard. And they discovered gold in the Black Hills. And the miners just flooded in, and the government let them in, even though it was treaty land. And finally, Congress in 77 took the land from the tribes. And they did not get three quarters of the signatures of adult males, they got about 10%. And so you have now the United States violating a solemn treaty. And you get into court.
By the way, here's a place where the similarity between international law and domestic treaties hurt the tribes. Because with international treaties, the United States can abrogate it. Even though they promise not to, they can abrogate it unilaterally and break it and end it or change it. The Supreme court early on said that Congress can abrogate Indian treaties. And here is one of the most egregious examples where they tore apart one of the greatest of all reservations for gold.
In 1980, more than a century after the U.S. Congress ratified the wrongful taking of the Black Hills, the U.S. Supreme Court referred to the brazen land grab in these words: “A more ripe and rank case of dishonest dealings may never be found in our history.”
KEVIN MCKIERNAN
If the Supreme court said that the Black Hills were wrongfully taken, isn't the remedy to give back property?
CHARLES WILKINSON
Sure sounds good to me. But that case involved a statute at the Indian Claims Commission, where the remedy for tribes for wrongful past takings was money damages, not land. Congress had said that there's not going to be land returned.
ANDREW
And the tribes refused to accept the money, right?
CHARLES WILKINSON
Yes. Still have. A hundred million dollars originally. And now of course, many times over that.
VO
As of 2011, with interest, the compensation has compounded to over $1 billion.
CHARLES WILKINSON
And I think in time there's going to be a settlement. They're not going to get all the Black Hills back maybe, but I think they're going to get a good chunk of it back. In time. Because their claim is just. And their connection to that land is profound. And those are things that when groups have those kinds of views about things and don't let them go, often it happens. And I think it's going to happen in this case. But it is sacred land, and it's legitimate, and it's authentic. And when tribal leaders and traditional people give their voice, you can tell the authenticity, and that's what will carry it.
VO
We could hear that authenticity in the voice of Milo Yellow Hair, former Vice President of the Oglala Lakota nation.
MILO YELLOW HAIR
What's most important about the 1868 treaty is this: It was proclaimed as law by President Andrew Johnson after passage in the Senate. Well how much more law can you get than that? It's like the first amendment and the second amendment, people say, I'll defend these, you know, but you know, who is going to protect the law or the treaty that was made between the great Sioux Nation and the United States of America.
MILO YELLOW HAIR
Who is going to defend that word that was given at that time. It said things like the United States pledges its honor to the principles of this agreement. America will not use the military against the Indians, you know, the Indians promise to put their guns down and not make war against the whites. So we saw this whole thing as a peace treaty between two equal powers.
MILO YELLOW HAIR
But what happened? The same old story. Greedy white men come to this reservation and start disenfranchising the whole of the nation. We had 77 million acres of land. Today we only got 2 million acres of land. What happened to the other 75 million acres of land? What happened to it? It's not in our hands. And this is what we're talking about. This insatiable need for land to be taken over in the name of Christianity.
VO
The American Indian Movement was founded to address these inequities. So conflict was inevitable. The stakes were huge.
KEVIN MCKIERNAN
The activism, which took place at Wounded Knee, and then again, the Incident at Oglala in 1975, where the Indian and the two agents were killed and all the controversy that came out of that, people will say this took place on treaty land. In what sense is it accurate to say that those did take place in Indian country and on treaty land? Could you raise a treaty defense in any sense of the word?
CHARLES WILKINSON
It depends on exactly where the acres are. Because it's all former treaty land at least.
KEVIN MCKIERNAN
And it’s not simply rhetoric I guess you’re saying?
CHARLES WILKINSON
I mean, events, some took place on reservations today that are treaty land. And some took place on land that is public land or even private land that was treaty land. And so the law is that on Indian country, which is where tribal sovereignty applies, that's treaty land, that's Indian land, even though they may not own the acres.
KEVIN MCKIERNAN
In Oglala, South Dakota, where that shootout took place, there was no state jurisdiction there.
CHARLES WILKINSON
RIght. The state does not have jurisdiction because a treaty is the Supreme law of the land. But the United States does. And so some major crimes go to federal court.
VO
The Major Crimes Act was instituted in response to an 1883 Supreme Court Decision, Ex Parte Crow Dog.
On August 5, 1881, Crow Dog shot and killed Spotted Tail, a Lakota chief, whom he believed had been paid off by the government. Although Crow Dog was punished in accordance with Sioux tradition, a Dakota Circuit Court tried him and sentenced him to hang.
But in a surprise twist the Supreme Court overruled the circuit court, holding that an Indian nation had full jurisdiction over its members. So in 1885 Congress passed the Major Crimes Act to combat a dangerous precedent that propped up tribal sovereignty.
The Major Crimes Act was invoked in the search for Jimmy Eagle, who was wanted in connection with the theft of a pair of cowboy boots. It was Eagle, who Agents Coler and Williams allegedly spotted on the 26th of June in a red pickup truck, and it was this vehicle that the FBI men allegedly followed onto the Jumping Bulls’ property immediately preceding the shootout.
The Major Crimes Act was also invoked to investigate the deaths of the two FBI agents. But where was the Major Crimes Act when dozens of traditionals were killed during the reign of terror?
It appears like the law was used selectively to advance the political agenda of the federal government and kneecap the American Indian Movement.
But how can an Indian nation be sovereign yet still subject to federal law? Charles explains.
CHARLES WILKINSON
We have a lot of different doctrines floating around here in Indian law. One doctrine is that tribes are sovereign nations. Another doctrine is that Congress has complete power over Indian affairs. And that includes the ability to abrogate treaties and to remove tribes from one location to another. And those are both true. Those things are both true. Tribes are sovereign nations and the United States has plenary power.
VO
Plenary power is a complete and absolute power to take action on a particular issue, with no limitations.
In other words, the United States empowers itself to do whatever the hell it damn well pleases. Kinda like Deebo from “Friday.”
AUDIO CLIP FROM “FRIDAY”
Deebo: What bike?
Red: The beach cruiser. The one I let you use a couple of weeks ago. The one I’ve been asking you about.
Deebo: Oh, that bike. I didn’t know you wanted it back, homey.
Red: It’s right here.
Deebo: Cool.
[SOUND OF A PUNCH]
Deebo: That’s my bike punk!
When the fledgling United States couldn’t beat the mighty Sioux on the battlefield, it was deemed advantageous to make peace. Hence, the Fort Laramie Treaty.
But when gold was discovered in the Black Hills, and the 1868 treaty appeared to be an impediment to expansion and riches, the United States abrogated it.
So the treaty was used to win land concessions, and the Supreme Court was used to justify breaking it, okaying the expansion into the Black Hills and elsewhere.
The United States played the angles, biding time to strengthen its position while weakening the Sioux.
The man entrusted with solving President Grant’s “Indian problem” was General William Tecumseh Sherman, the same General whose Union forces had marched in 1864 from Atlanta to Savannah, destroying everything in their path as part of Sherman’s infamous scorched earth policy. The strategy devastated the Confederacy, and 5 months later, the Civil War was over.
In 1869, one year after the Fort Laramie treaty was signed, Sherman advocated destroying the Indian food supply: “The quickest way to compel the Indians to settle down to civilized life was to send ten regiments of soldiers to the plains, with orders to shoot buffaloes until they became too scarce to support the redskins."
An estimated 5.4 million buffalo were slaughtered between 1872 and 1874. By the 1880s less than 100 buffalo remained in the wild.
To avoid starvation, the Native Americans were forced onto reservations.
In this context, it is easy to understand why the Pine Ridge traditional chiefs signed that formal resolution of sovereignty in Oglala, South Dakota on June 1st, 1975. And to understand why Leonard felt called to defend their women, children and treaty rights that fateful summer.
CHARLES WILKINSON
I knew Leonard back in the early seventies, and you've all had the same experience, but he's just a gentle person. I mean, he can be fiery. He can be emotional, but he is a gentle person. And that he's had to go through all this, and I'm so glad you're working on now maybe getting a pardon. And as of January 21st, by God, we're going to have a president in there who's got the guts to do it and the values to do it.
VO
We hope he’s right about President Biden. Because it’s going to take a lot of guts to override the forces fighting to keep Leonard Peltier behind bars.
To the US government, Leonard is a dangerous man.
Because he was defending treaty land he is viewed as a threat to the system, the same system that lashed out at Nick Tilsen for his land back protest on July 3rd of last year.
[Transition music, 41:27-41:29]
February 2021 brought a mix of news from Leonard.
PETER COYOTE
Today I had a brief conversation with my case manager. A week or so ago, he told me they are putting me in for a transfer, and the last time he told me it would not be until June during the annual six month team hearing.
He also said he knows I have served the sentence I received from “the illegal court trial. My words. But I would or could not be transferred while this pandemic is going on. No one is. And it could be up to six months, even longer before they start up the BOP’s Prison air flights for a transfer.
He also said my security level has been lowered. So something is happening? I don’t know who or what made the change so just keep up what is all being done, okay.
VO
The good news: Leonard was approved for a transfer to a lower security facility in Minnesota or Wisconsin that would be closer to his family and friends.
The bad: his transfer will be delayed until COVID-19 is under control and Con Air can resume flights. So for the foreseeable future Leonard is stuck in Florida where things are getting dicier by the day.
In mid-January, Coleman, and all other federal prisons, were put on lockdown because of “current events occurring around the country” aka the Insurrection at the Capital.
In mid-February Coleman was locked down again, so our next contact didn’t come until March.
PETER COYOTE
This lockdown was rather rough. This place is getting dangerous for us older guys so I need the committee to make the transfer happen. As I told you it can only help me if I go to a lower level FCI.
Rochester medical would be fine as there are things happening to my body that’s not normal. Thanks Carol G for the update and I see you’re making some headway.
VO
After the break, we talk to Carol G.
BREAK #2
Hey, This is Andrew. If you want to be the first to hear about new episodes or the new show we’re working on, go to mbdfilms.com/contact and subscribe to our newsletter.
To help Leonard, you can purchase his artwork at whoisleonardpeltier.info. All proceeds go to fund his legal defense. So check out his work. He’s incredibly talented.
RORY
You can also help Leonard on social media by tweeting messages of support for Leonard’s clemency to @POTUS @JoeBiden and @FLOTUS @DrBiden -- as well as to Kamala Harris, Secretary Deb Haaland and The Justice Dept. So tweet, tweet, tweet. Let’s keep Leonard in their timelines and mentions.
VO
Carol G. is Carol Gokee, one of the newest board members of the International Leonard Peltier Defense Committee. We called Carol to get her take on the situation. She has been visiting Leonard in person as often as she can and talking to him on the phone regularly.
CAROL GOKEE
Leonard's in great spirits, but he says he doesn't feel normal right now. And so there's something going on. We're pretty sure we know somewhat what it is, but we're going to be optimistic that it's going to get identified. It's just that they're not letting anybody into the doctor's office right now because there's a line of them, and because of the pandemic, it wasn't important enough for them. He's been asking for weeks to go. We've given him scripts, so he knows what to ask for. He's not even given an N-95 mask, which we will supply, until he gets a note from a doctor. He was denied a doctor's visit about a year ago because he didn't have a COVID test!
CAROL GOKEE
According to their procedures, they're not following their own procedures. Nor are they giving him a diabetic diet. He's lost a lot of weight.
CAROL GOKEE
Leonard is exhibiting some medical symptoms that need to be addressed and we're working diligently to get those addressed because it is looking like it is definitely medical negligence. So it's a red flag right now. It's an emergent issue. We're working on that, working with the judge to try to make sure we get the right representation in there and get him out or get him taken care of.
CAROL GOKEE
They're trying to kill him slowly. They're trying to kill him and make him a martyr and they're not going to do it. We're not going to let them do it. Period. So the fight is on right now. It's on. And we've got spirits with us. We've got good medicine with us. And we've been making headway.
VO
One of Carol’s initiatives is the resumption of the Peltier Freedom Ride to raise public awareness about Leonard’s case. Despite the difficulties presented by the pandemic, the Ride is tentatively scheduled to begin in Nebraska on June 7th.
Supporters will travel on horseback through Kansas City, St. Louis, Louisville, and Richmond on their way to Washington, DC for a prayer vigil lasting through Commemoration Day on June 26th.
Andrew and I are planning to participate. Hopefully we’ll see you on the road. Because without sustained social pressure, the Justice Dep’t will be more than happy to run out the clock on Leonard.
The government contends that Leonard isn’t a political prisoner. That he’s just a common thug as prosecutor Lynn Crooks told 60 Minutes.
But if it wasn’t political, why did the government go to such great lengths to imprison Leonard?
If it wasn’t political, why would the FBI fabricate affidavits to illegally extradite Leonard from Canada?
Why else would the trial venue be changed from Cedar Rapids to Fargo?
Why else would an FBI stenographer destroy notes of recorded Bureau radio transmissions between trials?
Why else would defense lawyers and potential witnesses be barred from speaking to the media?
Why else would the checkered history of the FBI be kept from the jury?
Why else would exculpatory ballistics evidence be hidden from the defense?
Why else would prosecutor Crooks misstate eyewitness testimony in his closing arguments?
And why else would the judge forbid the jury from reviewing any and all trial transcripts of eyewitness testimony?
It had to be political because the circumstantial evidence presented by the prosecution was weak.
It had to be political to mask reasonable doubt.
It had to be political to obtain a conviction.
If it were about hard evidence, the FBI had plenty of other leads to follow as the coming episodes will show.
But instead of following the evidence, they tailored it to their target, the American Indian Movement.
We’ll delve into all of this and more this season.
Because the more you analyze the case against Leonard Peltier, the more it falls apart.
Attorney William Kunstler, who founded the Center for Constitutional Law and who represented Dino Butler in Cedar Rapids, put it like this:
“Not only do I believe that Leonard was unjustly tried, convicted and sentenced, but that his travails were the result of FBI misconduct of such magnitude that any fair-minded society would have lost no time in condemning it out of hand.”
We’re hoping that 2021 is the year that our society finally comes to its senses. Because the time is now to free Leonard.
PETER COYOTE
It’s been a hard 45 years, and it will get a lot harder I’m sure as I age and in the moments when hopelessness overtakes me, but at my age all I can do is ask so many of you to stay with me and let’s try again. Because we have the only weapon we can use and that’s the Constitution and the laws of this so-called free democracy. And we must get everyone to know what the laws were they violated, not just the lawyers. EQUAL JUSTICE FOR ALL. What a joke that is. It has never been this way for my people. And more than likely will never be. BUT I welcome all who will stay with me to fight with me until I take my last breath. Thank you in the spirit of Crazy Horse.
Doksha, Leonard Peltier
This episode is dedicated to the memory of Michael Apted, who passed away in January.
This podcast was produced, written and directed on Tongva Land by Rory Owen Delaney and Andrew Fuller.
Kevin McKiernan serves as our consulting producer.
Thanks to Bobby Halvorson for the original music we’re using throughout this series.
And thanks to Mike Casentini at the Network Studios for his engineering assistance, and to Peter Lauridsen and Sycamore Sound for their audio mixing.
Thanks to Charles Wilkinson for sharing his knowledge of Indian treaty law.
Thanks to everyone at the International Leonard Peltier Defense Committee.
Thanks to Peter Coyote for giving Leonard a voice when we only had his words on paper.
And thanks, most of all, to Leonard Peltier.
Sign Off: To get involved and help Leonard, sign the new clemency petition at freeleonardpeltier.com. For more information, go to whoisleonardpeltier.info or find us on social media. @leonard_pod on Twitter and Instagram, or facebook.com/leonardpodcast.
This podcast is a production of Man Bites Dog Films LLC.
Free Leonard Peltier!