AIM case awaits several court rulings

By Carson Walker
Sioux Falls, South Dakota (AP) 4-09


Federal judges in Sioux Falls and St. Louis have pending before them several decisions that could again change the criminal case against two men charged with killing or aiding the murder of a Canadian woman 33 years ago – including a chance the case against one of them could be tried in state court.

John Graham and Richard Marshall are scheduled to stand trial May 12 in Rapid City on federal charges they committed or aided and abetted the December 1975 murder of Annie Mae Aquash on the Pine Ridge Reservation.

Marshall, a Lakota from Pine Ridge, was indicted in August, five years after Graham and Arlo Looking Cloud were charged.


Looking Cloud, also a Lakota from South Dakota who was living in Denver, was convicted in 2004 for his role in Aquash’s murder and sentenced to life in prison.

Witnesses said he, Graham and another AIM member drove Aquash from Denver and that Graham shot Aquash on orders from AIM leaders who suspected she was a government informant. Prosecutors accuse Marshall of providing the revolver and shells.

Days before Graham’s trial was to start in October, U.S. District Judge Lawrence Piersol threw out the indictment because it didn’t show that either Graham or Aquash belonged to a federally recognized tribe. Tribal status gives the federal government jurisdiction in the case.

Graham is from the Tsimshian Tribe in the Yukon and fought his return in British Columbia for more than four years before he was extradited in December 2007.

Aquash was a member of Mi’kmaq Tribe of Nova Scotia.


After Piersol dismissed the 2003 indictment, federal prosecutors re-indicted Graham and Marshall, combined their case and appealed the ruling. A three-judge panel with the 8th U.S. Circuit Court of appeals in St. Louis heard oral arguments on it April 15.

U.S. Attorney Marty Jackley argued the law does not require Graham to be an American Indian because co-defendant Looking Cloud belongs to a federally recognized tribe.

“We may not know and be able to prove beyond a reasonable doubt who actually pulled the trigger. But these two, in concert, joined in a criminal venture to murder Aquash. And they did that on the Pine Ridge Reservation. Thus, this court has jurisdiction,” he said.

But Graham’s lawyer, John Murphy, said nothing in statute allows an aider and abetter to be tried in federal court if the person does not belong to a federally recognized tribe. Since Graham is Canadian, the U.S. does not have jurisdiction, he said.

“Congress very clearly was trying to create a very narrow class of cases that permit the federal government to exercise exclusive jurisdiction. They said, ‘Indian defendants,”’ Murphy said.

“Non-Indians are not subject to federal prosecution.”

Murphy said during the hearing it’s possible Piersol will wait on a ruling from the 8th Circuit before deciding whether to dismiss the new charges – something he and Marshall’s lawyer have requested.

Murphy also asked the court to dismiss the government’s appeal.

If the dismissal of the 2003 indictments stands, one of the three counts in the 2008 indictment could also be dismissed because it deals with Graham’s Indian status.

And though unlikely, Jackley and Murphy also acknowledged during the hearing that the case against Graham could ultimately end up in state court if the appeals court concludes the U.S. does not have jurisdiction.

South Dakota Attorney General Larry Long affirmed that possibility.

“If the 8th (Circuit) agrees with the district court, what they have to conclude is the perpetrator and victim are Canadians and therefore do not meet the American Indian definition and therefore it is a non-Indian on non-Indian crime committed in Indian Country,” he said.

“Then jurisdiction lies with the state and not the feds.”