John Graham asks judge to dismiss murder indictment

John Graham asks judge to dismiss murder indictment
Defense claims U.S. court lacks jurisdiction in case involving Canadians
By Heidi Bell Gease, Journal staff Thursday, September 25, 2008

The defense attorney for murder suspect John Graham has filed a motion
asking that the indictment against Graham be dismissed, arguing that the
U.S. District Court does not have jurisdiction over the case.

Graham is scheduled to go on trial in Rapid City on Oct. 6 for the 1975
murder of Anna Mae Aquash, who was murdered near Wanblee. Another
defendant, Arlo Looking Cloud, was convicted of her murder in 2004, and
is serving a life sentence in federal prison.

Although Looking Cloud is Lakota, Graham and Aquash are both Canadian
citizens who belong to indigenous tribal bands there. Neither belonged
to tribes recognized by the U.S. government. And because of that,
defense attorney John Murphy argues, the U.S. government can't prosecute
Graham.

"For this court to have jurisdiction over this case, either Mr. Graham
or Ms. Aquash have to be recognized as an 'Indian,'" Murphy wrote in his
motion. "The threshold inquiry to determine whether a person is 'Indian'
under federal criminal law is whether the person is a member of a
federally recognized Indian tribe."

Murphy goes on to cite case law, saying that historically, when tribes
in the U.S. migrated to Canada, the United States' relationship with
those tribes ceased to exist.

Because Looking Cloud is considered "Indian," the federal government
could prosecute him for Aquash's death, Murphy writes. However, crimes
that happen on reservations that do not involve either a native
defendant or a native victim are subject to prosecution in state court.

But federal prosecutors say Aquash and Graham are "Indians" and subject
to federal jurisdiction. According to proposed jury instructions filed
in U.S. District Court, "An 'Indian' is a person who 1) has some Indian
blood; and 2) the person is 'recognized' as an Indian."

Jury instructions proposed by prosecutors go on to say that other
factors can be used to help determine whether a person is recognized as
an "Indian," such as whether the person is "socially r

recognized as an Indian through living on the reservation and
participating in Indian social life."

Aquash, Graham and Looking Cloud all belonged to the American Indian
Movement, as did a third defendant, Richard Marshall.

Prosecutors are expected to file a response to Murphy's motion. U.S.
District Judge Lawrence Piersol has not issued a ruling.

Contact Heidi Bell Gease at 394-8419 or heidi.bell@rapidcityjournal.com


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