Meanwhile, the U.S. was engaged in fraudulently extraditing Peltier from Canada. This was done on the basis of a single piece of substantive evidence, an affidavit sworn to by an Oglala woman named Myrtle Poor Bear, who was supposedly an eyewitness to the deaths of Williams and Coler. As it turned out, Poor Bear had a history of deep psychological disorder, for which she had undergone extensive treatment. This seems to have been a matter well known to FBI agents David Price and William Wood when they essentially abducted her - she was charged with, and apparently suspected of, no particular crime - and held her incommunicado in motels in Gordon, Nebraska and Sturgis, South Dakota for approximately one month. ¹⁷⁶ During this period, the agents prepared, and Poor Bear signed, not one but three mutually contradictory affidavits concerning Peltier's "guilt" in the RESMURS matter. ¹⁷⁷ In the documents (which accompany this text), Poor Bear variously claimed to have witnessed and not to have witnessed the shootings, and to have been a "girl friend" of Peltier, to whom he "confessed" his deeds. At more or less the same time, Poor Bear was also signing affidavits prepared by Price and Wood to the effect that she was the girl friend of another AIM leader, Richard Marshall, to whom he had confessed the murder of an Oglala named Martin Montileaux. The Poor Bear "information" was the decisive factor in Marshall's first degree murder conviction and receipt of a life sentence on April 6, 1976. ¹⁷⁸ It was also the key ingredient in Canadian justice W.A. Schultz's determination that Leonard Peltier should be extradited to the U.S., reached on June 18, 1976, and Minister of justice Ron Basford's order that the extradition be executed on December 16, 1976. ¹⁷⁹

Affidavit 1, in which SAs David Price and William Wood have Myrtle Poor Bear recounting how it was she overheard the planning of the Northwest AIM group to lure SAs Coler and Williams to their deaths in an ambush. Note that there is no claim Poor Bear witnessed the firefight, but that she heard Leonard Peltier order the agents killed beforehand, and that he later "confessed to her."

Affidavit 2, in which SAs Price and Wood not only have Poor Bear, as Peltier's "girl friend," overhear RESMURS planning, but witness Peltier killing both agents. Note details on escape route designed to explain away the Bureau's embarrassing inability to apprehend suspects at the scene of the firefight. Also note how the method of killing corresponds to the FBI's contrived "execution" scenario.

Affidavit 3, actually submitted to the Canadian courts, in which the agents totally abandon the notion of Poor Bear's having overheard planning for an ambush. Instead they have their victim provide considerable detail as an "eyewitness." Note also the absense of any alleged confession on the part of Leonard Peltier.

Poor Bear later recanted all "evidence" she'd offered - both by affidavit and through direct testimony - against Peltier and Marshall, contending that she had been grossly coerced by the FBI into providing false information (e.g.: she'd witnessed nothing, and knew neither man in any way at all). ¹⁸⁰ Among the methods used to achieve these results, aside from her virtual kidnapping by Price and Wood, appear to have been the use of morgue photos of the body of AIM member Anna Mae Aquash, who had earlier reported being threatened with death by Price unless she cooperated in the RESMURS investigation. ¹⁸¹Having been hustled back to South Dakota from Oregon by SA J. Gary Adams on February 10, after being arrested in the Brando motor home, Aquash had promptly disappeared. Her body - dead for several days -was discovered in a ravine near the village of Wanblee by Oglala rancher Roger Amiotte on February 24, 1976. Price was among a number of lawmen who atypically gathered to view the corpse in situ at this remote location, but claimed not to recognize the victim." ¹⁸² He and his partner, William Wood, then followed the ambulance carrying the body all the way to the Pine Ridge Hospital morgue (some 115 miles) where an autopsy was performed by the faithful coroner, W.O. Brown. Brown pronounced death to have been caused by "exposure," and ordered burial in a common grave at the nearby Red Cloud Cemetery. Prior to burial, Wood caused "Jane Doe's" hands to be severed and shipped - as is shown in the accompanying February 26, 1976 airtel from the Minneapolis SAC to Kelley - to the FBI crime lab in Washington, D.C., for "identification purposes." ^{183
[TIMELINE: Anna Mae Pictou Aquash]}

"Enclosed ... one pair of hands." Airtel sent as cover with the box containing Anna Mae Aquash's body parts to the FBI crime lab. It should be noted that had the Bureau followed usual procedures in attempting identification by dental x-ray, the bullet lodged in the victim's skull would have been revealed.

The hands were identified as belonging to Anna Mae Pictou Aquash on March 3 (see accompanying Identification Division report, dated March 10, 1976) and the victim's family in Nova Scotia, suspecting foul play, requested that WKLDOC attorney Bruce Ellison file for exhumation of the body and an independent autopsy. ¹⁸⁴ This was conducted by Minneapolis pathologist Garry Peterson on March 11. In less than five minutes, Peterson concluded that death was caused, not by exposure, but by a lead slug "consistent with being of either .32 or .38 caliber" having been fired point blank into the base of the skull. ¹⁸⁵ In Rapid City, ASAC Zigrossi thereupon announced a homicide investigation was being opened into the matter (it is apparently still ongoing, nearly 14 years later). ¹⁸⁶ But by then, according to subsequent testimony, agents Price and Wood had already - long since - taken to showing the morgue photos to Myrtle Poor Bear, identifying the "unidentified" corpse as being that of Aquash, and explaining to their captive that she'd end up "the same way" unless she did exactly what they wanted. Poor Bear quoted Wood as informing her, in specific reference to Aquash, that "they [Price and Wood] could get away with killing because they were agents." ¹⁸⁷

Lab report confirming positive identification of "Jane Doe," dead on Pine Ridge of alleged exposure, as Anna Mae Aquash, who in reality had been shot, execution-style, in the back of the head. Note return of "specimens" to Rapid City.

In any event, with Peltier illegally but securely in custody, and with the defense's hands tied by Judge Benson's odd assortment of evidentiary rulings, the FBI set about fabricating a "factual" basis upon which prosecutor Hultman could obtain a conviction. First, Bureau ballistics experts "established" - on the basis of no tangible evidence whatsoever - that Williams and Coler had been killed by shots fired from a .223 caliber AR-15 rifle. ¹⁸⁸ A highly circumstantial case that an AR-15 had been fired into the agents at close range was made through introduction of a single shell casing allegedly found in the trunk of Coler's car (which had been open during the fighting), supposedly discovered, not during the FBI's initial examination of the car, but at some point well after the fact. ¹⁸⁹Then, the head of the Bureau's Firearms and Tool Marks Unit, Evan Hodge, falsely cast the impression - the FBI already having (and hiding) conclusive evidence to the contrary - that only one AR15 was used by the Indians during the Oglala firefight. ¹⁹⁰ From there, Hodge went on to testify that he had been able to link the cartridge casing purportedly recovered from Colers trunk to a weapon used by the Northwest AIM group and found in Bob Robideau's burned out car on the Kansas Turnpike. However, as is shown in the accompanying October 2, 1975 teletype from Hodge to Clarence Kelley, these ballistics tests had produced the exact opposite results. ¹⁹¹ But once the ballistics chief's assertions on the stand were accepted by the jury, it followed that whoever among the Northwest AIM group could be shown to have carried an AR-15 during the firefight would be viewed, ipso facto, as the "murderer."

Then came the piece de resistance. SA Fred Coward was put on the stand to testify - as he had not been at Cedar Rapids - that in the midst of the firefight he had been peering through a meager 2x7 rifle scope. At a distance of "approximately 800 meters" (about one-half mile), through severe atmospheric heat shimmers, he claimed to have recognized Leonard Peltier, whom he admitted he had never seen before that moment. Peltier, Coward claimed, was running away from the location of the dead agents' cars - at an oblique angle to Coward's position, so that the identification had necessarily to be made in profile - carrying an AR-15 rifle. ¹⁹² With that, AUSA Lynn Crooks, who at Cedar Rapids had vociferously contended that Coler and Williams had died at the hands of a "gang of ruthless ambushers," reversed himself before the Fargo jury arguing that Peltier had been a 'lone gunman":
 

Apparently Special Agent Williams was killed first. He was shot in the face and hand by a bullet ... probably begging for his life, and he was shot. The back of his head was blown off by a high powered rifle Leonard Peltier then turned, as the evidence indicates, to Jack Coler lying on the ground helpless. He shoots him in the top of the head. Apparently feeling he hadn't done a good enough job, he shoots him again through the jaw, and his face explodes. No shell even comes out, just explodes. The whole bottom of his chin is blown out by the force of the concussion. Blood splattered against the side of the car." ¹⁹³

Under the weight of such cynical and deliberately sensational dosing argumentation, unhampered by a number of exculpatory documents the FBI had secretly withheld despite defense discovery motions, the jury found Peltier guilty on two counts of first degree murder on April 18, 1977. Judge Benson then again did his part, passing life sentences on each count, to run consecutively. Contrary to stated U.S. Bureau of Prisons (BoP) policy - which held at the time that the facility was reserved for "incorrigible" repeat offenders (Peltier had no prior convictions) and those who have created major problems within other facilities of the federal prison system - the defendant was taken directly to the super maximum security federal prison at Marion, Illinois.

An appeal of Peltier's conviction was immediately filed with the U.S. Eighth Circuit Court of Appeals, based more-or-less equally on Judge Benson's evidentiary rulings and documented FBI misconduct both in and out of court. The appeals case was compelling, as is reflected in the observation of one of the judges on the three member panel, Donald Ross, in connection with the Poor Bear affidavits:
 
 

But can't you see ... that what happened, happened in such a way that it gives some credence to the claim of the ... Indian people that the United States is willing to resort to any tactic in order to bring somebody back to the United States from Canada. And if they are willing to do that, they must be willing to fabricate other evidence as well [emphasis added]." ¹⁹⁴

This teletype, among the exculpatory documents withheld by the FBI during the trial of Leonard Peltier, shows that Bureau ballistics tests conclusively determined that the rifle attributed to the defendant had not fired the cartridge casing allegedly recovered from the trunk of SA Coler's car. FBI firearms expert Evan Hodge testified to the opposite at trial.

FBI lab notes detailing filing pin test performed with the "Wichita AR-15," showing that it did not match the crucial casing recovered at RESMURS scene. At trial, Evan Hodge testified that the test was "inconclusive."

In the end, however, while noting serious problems with the FBI's handling of "certain matters," and consequently expressing considerable "discomfort" with their decision, the judges opted to allow the judgment against Peltier to stand on February 14, 1978. ¹⁹⁵ An explanation of this strange performance may perhaps be found in the fact that shortly thereafter, William Webster - Chief Judge of the Eighth Circuit Court, and initial chair of the panel which considered Peltier's appeal - left the court for a new job: he had been named Director of the FBI, a matter of which he was aware well before the Peltier decision was tendered. ¹⁹⁶ On February 11, 1979, the U.S. Supreme Court refused, without explanation, to review the lower court's decision. ¹⁹⁷

In 1981, as a result of an FOIA suit filed by Peltier's attorneys, some 12,000 pages of previously classified FBI documents relating to the Peltier case were released (another 6,000-odd pages were withheld under the aegis of "national security" in this purely domestic matter). ¹⁹⁸ Based upon precedents that the withholding of exculpatory evidence - such as the accompanying October 2, 1975 ballistics teletype - by the prosecution was grounds for retrial, an appeals team filed a motion in this regard with Judge Paul Benson in April of 1982. Since certain documents obtained through the FOIA also revealed what appear to have been improper pretrial meetings between the prosecution, the FBI and Benson, the judge was simultaneously asked to remove himself from further involvement in the proceedings. ¹⁹⁹ This was essentially pro forma; given his previous record in the Peltier case, few were surprised when Benson rejected both of these motions on December 30, 1982.

A new appeal was then filed with the Eighth Circuit Court and, on April 4, 1984, the appeals court reversed Benson's decision. Citing the apparent contradiction implied by the October 2, 1975 teletype, and the critical nature of the .223 casing to the government's case, the court ordered an evidentiary hearing on the ballistics evidence. ²⁰⁰ The hearing was held in Paul Bensons regular courtroom in Bismarck, North Dakota at the end of October 1984. There, a very nervous Evan Hodge explained that the obvious conflict between his trial testimony and the documentary record arose from a "misinterpretation." ²⁰¹ Although Hodge steadily dug the hole deeper and was eventually caught by William Kunstler committing what would for "civilians" be described as outright perjury, Benson still allowed the distraught agent to resume the stand and retract his testimony. ²⁰² The judge then ruled that Peltier's conviction would stand.

This decision was anticipated, and the appeals team went straight back to the Eighth Circuit Court. In oral arguments heard before the court on October 15,1985, prosecutor Lynn Crooks was forced to abandon his flamboyant assertions - made at trial - that Peltier was a "cold blooded murderer." Instead, as Crooks now admitted the government "[didn't] really know who shot those agents." ²⁰³ Thus, he was willing to concede that the murder case conjured up against the defendant by the FBI no longer really existed. Peltier, the prosecutor now lamely contended again in stark contrast to his trial presentations - wasn't even in prison for murder, but rather for aiding and abetting in two murders. ²⁰⁴ Faced with official contradictions of this magnitude, the appeals court deliberated for nearly a year, finally handing down a decision on September 11, 1986. Although they rejected Crooks' argument concerning aiding and abetting - noting that Peltier had plainly been convicted of performing the murders himself - while detailing how the evidentiary basis for such a conviction had been eroded, probably beyond hope of repair, they still allowed the conviction to stand. Their collective motivation in reaching this untenable conclusion was put straightforwardly in one brief passage of their opinion:

There are only two alternatives ... to the government's contention that the .223 casing was ejected into the trunk of Coler's car when the Wichita AR-15 was fired at the agents. One alternative is that the .223 casing was planted in the trunk of Coler's car either before its discovery by the investigating agents or by the agents who reported its discovery. The other alternative is that a non-matching casing was originally found in the trunk and sent to the FBI laboratory, only to be replaced by a matching casing when the importance of a match to the Wichita AR-15 became evident ... We recognize that there is evidence in this record of improper conduct on the part of some FBI agents, but we are reluctant to impute even further improprieties to them [emphasis added]. ²⁰⁵

Thus, the appellate court left Peltier in the midst of a double-life sentence for "crimes" both it and the trial prosecutor acknowledged had never been proven rather than delve more deeply into the illegal FBI activities attending his case. The defense immediately petitioned for reconsideration by the full Eighth Circuit Court rather than the three member panel - composed of judges Gerald Heaney, Donald Ross and John Gibson - which had rendered the decision. ²⁰⁶ The en banc hearing was denied several months later, a development which left the appeals team with no alternative but to once again petition the Supreme Court. ²⁰⁷ On October 5, 1987, the high court refused, for the second time and again without explanation, to review the case of Leonard Peltier. ²⁰⁸ Judge Heaney later described the decision as the most difficult of his legal career because, in his view, "the FBI was at least as responsible for what happened as Leonard Peltier. " ²⁰⁹ The judge failed to explain why, if this is the case, only Peltier is sitting in prison - without legal recourse - while the FBI agents involved have been allowed to simply go on about their business.

Implications of COINTELPRO-AIM

 
In many ways, the stark unwillingness of the federal government to accord Leonard Peltier even a modicum of elementary justice is symbolic of the entire AIM experience during the 1970s and, more broadly posed, of the U.S. relationship to American Indians since the first moment of the republic. The message embedded, not only in Peltier's imprisonment, but in the scores of murders, hundreds of shootings and beatings, endless show trials and all the rest of the systematic terrorization marking the FBI's anti-AIM campaign on Pine Ridge, was that the Bureau could and would make it cost-prohibitive for Indians to seriously challenge the lot assigned them by policy-makers and economic planners in Washington, D.C. The internal colonization of Native America is intended to be absolute and unequivocal.

Thus it was that AIM, arguably the most hopeful vehicle for some meaningful degree of indigenous pride and self determination in the U.S. during the late 20th century was destroyed as a viable national political organization. In the end, as Dennis Banks has observed:

The FBI's tactics eventually proved successful in a peculiar sort of way. It's remarkable under the circumstances - and a real testament to the inner strength of the traditional Oglalas - that the feds were never really able to divide them from us, to have the traditionals denouncing us and working against us. But, in the end, the sort of pressure the FBI put on people on the reservation, particularly the old people, it just wore 'em down. A kind of fatigue set in. With the firefight at Oglala, and all the things that happened after that, it was easy to see we weren't going to win by direct confrontation. So the traditionals asked us to disengage, to try and take some of the heaviest pressure off. And, out of respect, we had no choice but to honor those wishes. And that was the end of AIM, at least in the way it had been known up till then. The resistance is still there, of course, and the struggle goes on, but the movement itself kind of disappeared. ²¹⁰

The logic of COINTELPRO, as evidenced in this excerpt from a 1976 document concerning the basis for an "investigation" of AIM and its supporters. Note the mention of the deliberate fostering of "paranoia" among AIM leaders through the use of informers, and insistence that the right of government to suppress dissent outweighs the rights of citizens to "privacy and free expression."

At another level, the nature of the FBI's assault against AIM during the mid-1970s demonstrated the willingness and ability of the Bureau to continue COINTELPRO-style operations even at the moment such methods were being roundly condemned by the Senate Select Committee on Intelligence Activities, and FBI officials at the highest levels were solemnly swearing before congress that all such "techniques" had been abandoned, long since. Indeed, as has been shown in this chapter, there is ample evidence that - at least in terms of sheer intensity and lethal results - the counterintelligence program directed at AIM represented a marked escalation over what had been done when such things had been designated by the formal COINTELPRO acronym. As Russell Means has put it, "COINTELPRO is COINTELPRO, no matter what they choose to call it." ²¹¹

Further, getting away with COINTELPRO-AIM at the precise instant it was supposedly being chastised and "reformed" due to earlier COINTELPRO "excesses" appears to have inculcated within the Bureau hierarchy a truly overweening sense of arrogance. ²¹² They were quite prepared to openly defend the rationale of COINTELPRO, even while pretending to disavow it, a matter readily evidenced in the accompanying excerpt from the FBI's June 1976 "Predication for Investigation of Members and Supporters of AIM," a position paper drafted by Richard G. Held and delineating the thinking underlying what was being done to the organization. The right of the government to "defend itself" from dissent, in this official Bureau view, clearly outweighs the rights of citizens to "privacy and free expression."

In 1953, just prior to the passage of PL-280, Felix Cohen, one of the foremost scholars of Indian law compared the role of the Indians in America to that of the Jews in modem Germany. He noted that, "Like the miner's canary, the Indian marks the shift from fresh air to poison air in our political atmosphere ... our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall of our democratic faith." ²¹³ Given that all that happened on and around Pine Ridge occurred long after COINTELPRO allegedly became no more than a "regrettable historical anomaly," ²¹⁴ Cohen's insight holds particular significance for all Americans. In essence, if we may ascertain that COINTELPRO remained alive and well years after it was supposed to have died, we may assume it lives on today. And that, to be sure, is a danger to the lives and liberties of everyone.