Now in the final hours of his presidency, Barack Obama has thus far managed to make the dwindling moments count, issuing nearly 300 pardons since December. To the disappointment of the activists protesting the Dakota Access Pipeline, however, it looks like Red Fawn Fallis and Leonard Peltier will not be among those receiving commuted sentences or clean records.
In an email on Wednesday, the Justice Department gave its final answer to Peltier’s attorney, writing that “The application for commutation of sentence of your client, Mr. Leonard Peltier, was carefully considered in this Department and the White House, and the decision was reached that favorable action is not warranted. Your client’s application was therefore denied by the President on January 18, 2017.”
And with the clock running out, Obama has not given any sign that he would be willing to preemptively pardon Fallis, who has yet to stand trial. While both Fallis and Peltier’s cases are ambiguous, Obama’s decision hints at the severity of their crimes.
Peltier is serving two consecutive life sentences for the 1975 murders of two FBI agents in Pine Ridge Reservation in South Dakota. On June 26, 1975, Agents Ronald Williams and Jack Coler arrived at Pine Ridge to arrest Jimmy Eagle, who was suspected of robbery. Instead, the two men were ambushed by a group of what prosecutors later said was seven assailants. After the shooting stopped, three of the attackers approached the wounded agents. One, armed with an AR-15, shot both agents in the head, execution style.
The case is not an easy one. While there was no eyewitness evidence of the murders, Peltier was the only one carrying an AR-15 that day. At his trial, he was eventually convicted on the grounds that he had served as an “aider or abettor” in the murders even if he had not pulled the trigger on the final shots.
Since Peltier was found guilty in 1977, detractors have argued that his sentence unjustly reflected the tense attitude of the times rather than the facts of the case. Peltier was a member of the American Indian Movement, which at the time engaged in several tense standoffs with police over issues of sovereignty, racism, and harassment.
In the decades following, many, including both Pope Francis and James Reynolds, the U.S. attorney who supervised Peltier’s post-trial prosecution, began to think that his sentence was more than the crime deserved.
“Considering all of the surrounding factors, including the prevailing worldview of the time, the FBI’s role in the creation of dangerous conditions on Pine Ridge, the manner in which the case was investigated and prosecuted and the extraordinary length of time already served, in my opinion, Peltier should be released in the interests of justice,” wrote Reynolds earlier this year.
Others argued that the fact that the trial took place during a contentious period was not sufficient to negate the deaths of the two agents or the need for punishment.
“Obama has been unusually generous when it comes to clemency… Those commutations, more than 1,170, focus on inmates serving long sentences for nonviolent drug offenses,” wrote the Chicago Tribune in an editorial last week.
“Peltier’s case is wholly different. He was convicted of cold-blooded murder, and for that, he should stay behind bars,” it concluded.
The Standing Rock tribe and its supporters call for granting Peltier clemency. In December, Chairman Dave Archambault wrote to Obama to urge him to pardon the imprisoned activist.
While Peltier’s crimes and conviction occurred decades ago, those of Red Fawn Fallis are far more current. Although the two are often linked in protesters’ posts online requesting amnesty, her arrest is tied to the Dakota Access Pipeline protests.
Red Fawn Fallis continues to await federal charges in North Dakota. The charges stem from an altercation between police and pipeline protesters on October 27. Her arrest came about eleven weeks after the protests had begun, when police pushed protesters off of privately owned land and onto public ground reserved for their demonstrations.
Police used pepper spray and bean bag guns to push the protesters off of a patch of land on the north side of the camp. Protesters responded by starting fires and throwing things at police. During the altercation, officers identified Fallis as an instigator in the unrest.
Two officers moved to arrest Fallis, forcing her to the ground in the process. While they struggled to control her left arm, she pull out a pistol which had been concealed underneath her body and fired two shots.
In the affidavit filed in North Dakota court, the officers also allege that Fallis told them they were lucky she didn’t “shoot all you f*****.” She originally faced state charges of attempted murder, but these charges were dropped in favor of federal charges of felony counts of civil disorder and discharging a firearm in relation to a felony crime of violence, as well as possession of a weapon by a convicted felon.
Fallis, originally from Denver, has strong ties to the same American Indian Movement that Peltier was involved with forty years ago. Her mother was part of the 1973 occupation of Wounded Knee and a member of the AIM from the late 1970s until her death this year. Fallis herself has a previous felony conviction as an accessory to a crime in Arapahoe County, Colorado, which prevents her from legally owning a firearm. It is believed that she stole the pistol from a man she had been dating.
After her arrest, the American Indian Movement, spoke in her defense at a news conference.
“There is no evidence there was a gun,” said Glenn Morris, a leader in the American Indian Movement of Colorado.
The protesters allege that the police targeted Fallis for arrest while she was helping other protesters to wash tear gas out of their eyes. They have not responded to the discovery by investigators of spent shell casings in her revolver.
Despite her criminal record, Fallis has so far pled innocent to all charges and support for her in the protest camp remains high. One online petition site lists about 9,500 signatures pushing for clemency to be granted to her.
Already her case has gained significant attention. H.A. Goodman, a columnist for the Baltimore Sun and the Huffington Post, argued that a pardon would help to strengthen the Democratic party.
“By pardoning Red Fawn, President Obama will help unite both sides of the Democratic Party,” he wrote. “Progressives would view the pardon as a major victory, while establishment Democrats would benefit from a less hostile progressive base.”
As inauguration day dawns, it seems likely that Fallis, like Peltier, will not get a presidential get out of jail free card. Despite the narratives given by the protest movement, the facts of the matter are murkier and will need to be resolved at trial.
