Status

Through the Freedom of Information Act (FOIA), the Peltier Legal Team continues to press the government to produce the over 100,000 documents which it has withheld for over 30 years.

FOIA complaints have been filed against the Federal Bureau of Investigation (FBI) and Central Intelligence Agency in Minneapolis, Minnesota, and Washington, DC, respectively.

Further, FOIA requests have been issued to 35 FBI field offices which had not previously been served with FOIA requests. Due to these complaints, the Peltier attorneys determined that the government was still withholding over 100,000 documents concerning Leonard's case.

Buffalo, New York

On August 11, 2004, the Peltier attorneys filed a Memorandum of Law in opposition to the government's Motion for Summary Judgment in the Buffalo case, a FOIA lawsuit pending in the United States District Court for the Western District of New York.

There were 812 pages of material responsive to Leonard Peltier’s FOIA request submitted to the Buffalo Field Office. The FBI released 797 pages in full or in part in 2004. Fifteen pages were being withheld in their entirety. Review released documents (PDF Format, 25.7 MB).

The majority of the sought-after documents in the Buffalo case are over 25 years old. Nevertheless, the government vigorously resisted efforts to release this data on national security grounds. Documents are supposed to be automatically declassified after 25 years under Executive Order 12958. The FBI argued, however, that this material should not be subject to automatic declassification because it could damage or cause serious damage to national security and the so-called war on "transnational terrorism." The FBI also contended that release of the data could have a chilling effect on the free flow of intelligence information and strain diplomatic relations between the United States and a foreign government.

Oral arguments were heard on September 13, 2004, on the government's Motion for Summary Judgment.

On April 5, 2005, citing legal provisions that protect identities of FBI personnel and confidential sources, U.S. District Judge William M. Skretny denied the Legal Team access to the full text of the 1975 Teletype message from the FBI's Buffalo office to then-FBI Director Clarence M. Kelley. Skretny deferred a final decision on releasing seven of the 15 requested pages; all had been withheld on national security grounds. The Legal Team appealed the decision to the U.S. Court of Appeals for the Second Circuit in New York City. 

On February 27, 2006, Skretny issued his ruling on the remaining seven documents. The FBI can keep secret a handful of documents, he said, in the interest of national security. Skretny issued the decision after reviewing some of the pages in private. The pages of most interest to the Peltier attorneys revolved around a teletype from Buffalo, a three-page document that seems to indicate that a confidential source was being advised by the FBI not to engage in conduct that would compromise attorney-client privilege.

Peltier attorney Michael Kuzma argued an appeal before the Second Circuit Court of Appeals on December 7, 2006. The argument was heard before a three-judge panel for the full release of all documents maintained by the Buffalo field office of the FBI relating to Leonard Peltier and RESMURS.  As a result of this FOIA lawsuit, and the similar case brought against the FBI in Minnesota, it has been learned that the FBI actually possesses 142,579 pages of material.

A Summary Order was issued on February 23, 2007. The courts refused to order the FBI to release thousands of pages of documents relating to Leonard Peltier.

Chicago, Illinois

In 2004, the Chicago Field Office released its documents on the Peltier case to the Legal Team.

Manhattan (New York, New York)

A FOIA request was made on November 1, 2002, to the FBI Field Office in Manhattan (New York, New York). The FBI alleged that its file on Leonard Peltier was missing. Correspondence from the FBI claims that the so-called "missing" file is on "special locate," a bureaucratic manner of saying that they are looking for the file. This file has yet to be located by the FBI. The "missing" Manhattan file is of particular significance given that a number of Peltier's attorneys including William M. Kunstler, Elliot A. Taikeff, and Ramsey Clark were based in Manhattan.

The Peltier legal team has filed a brief with the United States Court of Appeals for the Second Circuit in Manhattan.  In this case, the legal team is seeking the production of  FBI documents which the government is withholding on, among other grounds, national security.  This is the first of several legal filings that have been prepared to require the FBI to produce the documents it has been withholding for over 30 years.  Put simply, it is Peltier's position that the government would not be fighting so hard to keep these documents secret unless it had something to hide.

Minneapolis, Minnesota

On August 15, 2003, in connection with attempts by the legal team to obtain documents still being withheld by the Minneapolis FBI field office, Magistrate Susan Richard Nelson (U.S. District Court – Minnesota) issued an order denying without prejudice Peltier’s Motion for a Vaughn Index (a listing detailing the documents withheld and the FBI’s reasons for doing so) and granting the FBI’s Motion for a Stay of Proceedings. The magistrate concluded that exceptional circumstances exist where the resources of the FBI are inadequate to deal with the volume of FOIA requests it receives within congressionally mandated time limits. The magistrate also ruled that the FBI has shown due diligence in processing its requests. However, the FBI was ordered to give four-month updates and produce documents as they are reviewed. Specifically, the FBI was to begin releasing documents no later than December 2004 and to complete processing by December 2005.

The records in this FBI field office are of particular interest as Minneapolis was the Office of Origin for the RESMURS investigation. This field office maintained 90,000 pages of material responsive to Leonard’s FOIA request.

On December 30, 2004, the FBI produced 5,112 pages of material from its Minneapolis Field Office File #70-10239 Sub X Sections 1 through 97. The documents released made it clear that the FBI was not acting in good faith with respect to the processing of Leonard Peltier’s FOIA request. The 5,112 pages released consisted of Leonard Peltier’s 1977 trial transcript, as well as the trial transcript from the case of USA v. Robideau and Butler—material to which the Legal Team already had full access. Incredibly, the FBI withheld 144 pages from these transcripts on the basis that they were exempt from disclosure under Exemption (b) (5).  

The FBI subsequently released an additional 5,167 pages of records from its Minneapolis field office on February 25, 2005.

On January 6, 2005, because Leonard Peltier had exhausted his administrative remedies as they relate to his request for expedited processing, the Legal Team requested that the judge issue a briefing schedule and a date for oral argument so that the Court may reconsider its decision in this regard.

On January 11, 2005, Judge Nelson issued his Reply. (PDF Format)

On March 21, 2005, the U.S. District Court, District of Minnesota, issued a Memorandum and Order for oral argument regarding an appeal of Magistrate Judge Nelson's decision. (PDF Format) 

Oral arguments were heard on April 15, 2005.

On April 26, 2005, the U.S. District Court, District of Minnesota, affirmed Magistrate Judge Nelson's decision. (PDF Format)

This has been an arduous process, but the Minneapolis field office recently produced certain sub-files of particular interest. 

The government tried to delay producing these documents and future documents by demanding the payment of monies (fees) up front. This was a change in tactics because, until this production, the government had produced the documents and the Legal Team then reimbursed them for the cost. Thanks to loyal supporters, the attorneys were able to quickly raise the funds to get the documents.

On September 8, 2006, at 9:30 a.m., Peltier's attorneys argued before United States Magistrate Judge Susan R. Nelson for the full release of all FBI files maintained by the Minneapolis Field Office relating to Leonard Peltier. To date, the FBI has reviewed 77,149 pages and released 66,594 pages in full or in part. However, 10,555 pages were withheld in their entirety.

Leonard Peltier seeks release of documents relating to informants, particularly with respect to the extent the Federal Bureau of Investigation paid informants to infiltrate Leonard Peltier's defense team. Leonard Peltier's legal team has recently discovered evidence establishing that Douglas Durham, who was a confidential source paid by the FBI to infiltrate the highest levels of the American Indian Movement and who was exposed on March 7, 1975, spoke with and provided information to William Halprin, the Chief Prosecutor from Canada against Leonard Peltier in connection with his extradition proceedings. Halprin requested Durham's involvement "to enable him to utilize source [Durham] to refute statements made by Peltier's defense." The FBI instructed Durham "to provide information requested by Crown Attorney [and]... If recontacted by Halprin, he would cooperate fully and would keep Omaha advised of developments."

Knowing the impact such revelations would have on Leonard Peltier's case, the government is fighting vigorously to prevent these documents, that date back over 30 years, from being released to the public. Among other things, the FBI claims that the release of this information would harm national security and reveal the identities of confidential sources. Mr. Peltier's lawyers argued that these claims are nothing more than pretexts to prevent the release of further evidence of the continuing violation of Leonard Peltier's constitutional rights, and further drive home the fact that Leonard Peltier never received a fair trial.  Read the hearing transcript. (PDF Format)

Magistrate Judge Nelson, on October 24th, filed a report with Judge Donovan Frank in which she concurred with the FBI's position. In response, the Peltier attorneys formally submitted its objections to Judge Frank.

On June 8, 2007, Peltier attorneys filed with the U.S. Court of Appeals for the Eighth Circuit an appellate brief asking the Court to review and release some 11,000 pages of documents related to the investigation and prosecution of Leonard Peltier. The FBI continues to withhold those documents, claiming that their release would violate promises of confidentiality made to informants and would, incredibly, endanger the national security of the United States. In the brief, it is argued that the FBI's promises to its informants expired long ago, and were waived when those informants testified publicly. It is asserted that the virtually unprecedented public interest in the case of Leonard Peltier warrants careful judicial review of the withheld documents. In addition, it is demonstrated that the FBI's historic misconduct in this case, coupled with its continued misrepresentations about Peltier's case, shows sufficient bad faith to require the most searching inquiry into any claims of privilege. Read the appellate brief. (PDF Format)

The government's response was to categorically insist that there is no degree of governmental misconduct toward a FOIA litigant that could cause a court to "question the good faith of the agency," Cox v Department of Justice, 576 F2d 1302, 1312 (8 Cir. 1978) unless the litigant can prove misconduct in the FOIA proceedings themselves.

On October 9, 2007, attorneys Ron Kuby and David Pressman filed a reply brief with the United States Courts of Appeals for the Eight Circuit. Read the reply brief. (PDF Format)

According to the Peltier attorneys: "The government's assertion that it can wave away its sordid history of proven FBI and prosecutorial misconduct toward Peltier with a 'what have we done to you lately' nonchalance rests entirely on the government's own insistence. More significantly, the government conflates Peltier's lengthy, documented, proven history of the most serious governmental misconduct with some fanciful, gauzy grievance made by some hypothetical litigant. The government again demonstrates that it does not now, nor has it ever, taken seriously any of the courts that have admonished it about the treatment of Leonard Peltier. It has been proven that the FBI withheld exculpatory evidence, manufactured inculpatory evidence that it knew to be false, coerced witnesses and engaged in an over reaction to Wounded Knee sufficiently grave to cause a Senior Judge of this Court to opine that the Government shares responsibility for the firefight that led to the death of the two FBI agents. The government has shown no solicitude for the enormous 'burden on the judiciary' that its own malfeasance has caused."

NOTE: Oral argument in the above referenced case (No. 07-1745MN) was heard by the Court of Appeals for the 8th Circuit on March 11, 2008, at 9:00 a.m., at the University of St. Thomas School of Law, Frey Moot Courtroom, 1000 LaSalle Avenue, Minneapolis, Minnesota. Read the Court's decision (April 29, 2009) here. 

Myrtle Poor Bear passed away on September 15, 2005, in Rapid City, South Dakota. On November 14, 2006, a FOIA request to FBI Headquarters for all records pertaining to Myrtle Poor Bear was submitted. Peltier attorney Mike Kuzma was informed that the Minneapolis Field Office of the FBI might have records responsive to the request. A separate FOIA request was submitted to that office on April 20, 2007.

In a letter dated November 21, 2008, Mr. Hardy from the FBI claimed that, "A search of the indices to our central records system at FBI Headquarters reflected there were documents potentially responsive to your request. This office has attempted to obtain this material so that it could be reviewed for responsiveness. We were advised the records were not in their expected location and could not be located. Following a reasonable waiting period, another attempt was made to obtain this material. This also was met with unsuccessful results. Therefore, we are closing your request administratively."

North and South Dakota

In November 2002, after attempting for over a year to amicably acquire some of these documents, the Legal Team filed a FOIA complaint in the U.S. District Court for Massachusetts against the Executive Office of the United States Attorneys.

On February 6, 2003, due to the above complaint, the legal team succeeded in acquiring 1,000 documents from North Dakota and South Dakota.

Portland, Oregon

A letter dated February 20, 2007, from the Portland Field Office of the FBI advised Peltier's attorneys that it located 15,264 pages of documents that had not been indexed under Mr. Peltier’s name. The FBI will release 3,866 pages of this material once they receive duplication fees in the amount of $386.60.

The Count

The following is a list of the FBI Field Offices that maintain records relating to Leonard Peltier and/or the investigation of the shoot-out on the Pine Ridge Reservation on June 26, 1975.

How You Can Help

The government must release all documents related to the Peltier case. These documents are over 25 years old and are considered historically significant. Further, they may contain information that may exonerate Leonard Peltier. Sign the online petition.

You may also wish to write a letter asking Congress to intervene and take an active hand in releasing the Peltier documents.