Feds want to keep 3rd count in Pine Ridge slaying

By Carson Walker
Sioux Falls, South Dakota (AP) 11-08

One of the three counts against a man charged with the 1975 slaying of Annie Mae Aquash should not be dismissed because it ensures the defendants are treated equally, federal prosecutors argued in response to a request from John Graham’s lawyer.

Graham and Richard Marshall have pleaded not guilty to charges they committed or aided and abetted the first-degree murder of Aquash on the Pine Ridge Indian Reservation.

They are scheduled to stand trial in Rapid City starting Feb. 24 – which is 33 years to the day after her body was found.

Marshall was indicted in August, five years after Graham and Arlo Looking Cloud were initially charged.

Looking Cloud was convicted in 2004 for his role in Aquash’s murder and sentenced to life in prison.

Witnesses at his trial said he, Graham and Theda Clarke drove Aquash from Denver in late 1975 and that Graham shot Aquash in the Badlands as she begged for her life.

Clarke, who lives in a nursing home in western Nebraska, has not been charged.

In court documents, prosecutors accuse Marshall of providing the handgun that killed Aquash.

Graham has denied killing Aquash but acknowledged being in the car from Denver.

His lawyer, John Murphy, filed a motion to dismiss the third count against Graham that alleges jurisdiction over him based on his aiding and abetting Looking Cloud, Clarke and Marshall, all American Indians.


Murphy argued the court doesn’t have jurisdiction because Graham and Aquash were Canadian citizens and affiliated with Canadian tribes when she was killed and the law requires them to be members of a tribe recognized by the U.S. government.

Federal prosecutors disagree, saying that because Looking Cloud, Clarke and Marshall are legally Indians, the government has jurisdiction and the count against Graham ensures equal treatment of Indian and non-Indian defendants.

“A failure to find federal jurisdiction would give rise to unequal treatment of parties to a single transaction on the impermissible premise of race,” prosecutors Marty Jackley and Bob Mandel wrote.

Murphy responded to the government’s memorandum saying it doesn’t properly cite authority and repeats the error of the previous indictment against Graham that was dismissed.

Graham was to stand trial Oct. 6 but the judge threw out the indictment because grand jurors didn’t previously consider whether Graham or Aquash belonged to a federally recognized Indian tribe.

Murphy suggested the government wants to keep the third count alive in case Graham is acquitted of the other two counts. Prosecutors then could correct the problems with the third count and recharge him, he wrote.

“It is a bad faith action by the government to prolong this litigation and give it multiple attempts at conviction,” Murphy wrote.

The judge now will decide whether the third count stands.

All of those involved were American Indian Movement members.