Local Attorneys Seek Federal Leonard Peltier Documents

by George Sax Art Voice

Attorney Michael Kuzma addresses a rally in front of Buffalo's federal courthouse on Saturday, February 4, the day after he filed a suit against the US Department of Justice for failure to answer his FOIA requests for information regarding the case of Leonard Peltier.

On May 13, 2004, Buffalo attorney Michael Kuzma filed an application with the US Department of Justice for all records in its possession relating to one Frank Black Horse. Kuzma represented Leonard Peltier, a federal prisoner since 1976, convicted of killing two FBI agents on the Pine Ridge Indian Reservation in South Dakota on June 26, 1975, during a siege of a reservation ranch by federal agents.

Last Friday, on Kuzma’s behalf, local attorneys Peter A. Reese and Daire Brian Irwin filed a suit in the US District Court in Buffalo seeking an order directing the Justice Department to release the requested records of Black Horse. (Reese has represented both Artvoice and one of its staffers.)

Black Horse, whose real name is Frank Deluca and who is no Indian despite his alias, has been a resident of Canada since 1976 when, under federal indictment, he fled this country after shooting and wounding an FBI agent at Wounded Knee, South Dakota. He and Peltier were both arrested in Hinton, Alberta on February 6, 1976, but only Peltier, a leader of the American Indian Movement (AIM), was extradited to the States to stand trial. Despite the federal indictment against him, Black Horse has remained free across the border ever since. Peltier’s supporters, legal counsel and a number of independent observers have regarded this shadowy figure as someone who could shed light on what they regard as a concerted effort by federal authorities to railroad Peltier for crimes he didn’t commit. Hence, Kuzma’s long, dedicated, and tortuous attempt to obtain the Justice Department’s records on Black Horse.

The paper filed in federal court by Reese and Irwin included a list of events, turns and turnarounds in Kuzma’s unsuccessful over seven-and-a-half-year-long quest, accompanied by 21 copies of correspondence between him and either Justice or the FBI. Reese and Irwin’s suit alleges that Kuzma “has exhausted the applicable administrative remedies with respect to his FOIA (Freedom of Information Act) request,” and that the government “has wrongfully withheld the requested records from the plaintiff.”

Very early in his tangled negotiation with the federal government, Kuzma agreed to accept only those “public-source” records in the government’s possession—such as news reports—and not seek any documents whose release could invade the privacy of third parties. These public-source documents, he explained in an interview Tuesday in his office, are very difficult or impossible to track down today because of their obscurity, age, and lack of availability on the Internet. The fact that the FBI collected them may be significant in explaining what its goals and methods were in this case.

And on November 14, 2008, after a number of delays and dead ends, an FBI official, David M. Hardy, wrote Kuzma informing him the bureau had “located approximately 927 pages which are potentially responsive to your request.” Hardy even provided an estimate of the cost to duplicate them: $82.70. But after Kuzma promptly remitted that sum, it was returned, with no explanation. In response to his puzzled inquiry, the bureau eventually told him that it had no public-source records it could share with him, after all. Despite several subsequent twists, including backing off from and then reinstating this position, Justice and the FBI have continued to deny Kuzma’s applications. (In a brief telephone interview, US Attorney William Hochul said he was unaware of the suit, but doubted that Justice would have any comment. Maureen Dempsey, a press representative at the FBI’s Buffalo office, said it knew of the action but could not make any statement about a pending civil suit.)

Peltier’s arrest, conviction, and imprisonment have long been regarded by many people as a product of the FBI’s illicit COINTELPRO (counter-intelligence program) that was secretly operated from the 1950s through the 1970s, all too often in violation of the law and federal court decisions. The Reverend Martin Luther King, Jr. was a targeted victim of the FBI’s spying and character assassination, as depicted in Clint Eastwood’s recent movie, J. Edgar. In his A People’s History of the United States, the late Boston University historian Howard Zinn described the government’s massive response with over 200 heavily armed federal agents when AIM occupied the reservation village of Wounded Knee in 1973 to protest the Bureau of Indian Affairs’ miserable treatment of Native Americans. This was the political backdrop to the charges against Peltier.

Kuzma said that “the FBI set the wheels in motion that got its agents killed.” It had apparently infiltrated AIM with informants, including the bogus and violent Black Horse. Kuzma cites a document, previously obtained by Peltier’s defense, from January 15, 1976, in which Deputy Director General (Ops) M. S. Sexsmith of the Royal Canadian Mounted Police (RMCP) wrote to a colleague about Black Horse’s surreptitious provision of information from inside AIM.

Kuzma says it’s his hope that a federal magistrate judge will review the withheld material and say it should be released. Under FOIA, he said, “disclosure, not secrecy, is the focus.”

Tuesday, one of Kuzma’s lawyers, Irwin, said his goal is “to discover why it’s so important to the government to keep [Peltier] in prison,” and keep their documents secret. “What are they hiding?”

Nelson Mandela and 55 members of the US Congress, among others, have called for Peltier’s release.