Murder trial stalled due to 'Indian' status issue

First Nations | Law

Monday, October 6, 2008

Government prosecutors filed new murder charges against a Canadian man on Friday after a judge raised questions about the defendant's "Indian" status.

The new indictment acknowledges John Graham is from the Southern Tutchone First Nation in the Yukon of Canada. But prosecutors claim he was "affiliated" with the Oglala Sioux Tribe of South Dakota and participated in tribal ceremonies on the Pine Ridge Reservation.

The U.S. Attorney's Office in South Dakota also says Anna Mae Pictou Aquash, who was murdered on the reservation in December 1975, was affiliated with the tribe even though she was from the Indian Brook First Nation in Nova Scotia. Since Graham and Aquash are "Indian" and the crime occurred in Indian Country, the case belongs in federal court, the indictment alleges.

Even if Graham is not "Indian," prosecutors want him to stand trial for aiding and abetting the brutal murder. Two other defendants -- Arlo Looking Cloud, who has already been found guilty, and Richard Marshall, who was recently charged in connection with the crime -- are Oglala Sioux members so their status isn't an issue.

The U.S. Attorney's Office quickly filed the charges after Judge Lawrence Piersol dismissed the original indictment, ruling that it was "fatally defective." "In the present case, there is no dispute that Graham's Indian status is an essential element," the decision stated.

Prosecutors tried to save the first indictment by bringing up the aiding and abetting charge but Piersol said that wasn't sufficient to fix the defect. Looking Cloud and Marshall might be "Indian" but Graham's status hasn't been properly presented, the judge ruled.

The development posed a setback for the government since it came on the eve of Graham's trial. Proceedings were due to start today in Rapid City but they were canceled since the indictment was dismissed.

The case already suffered a delay of more than five years as Graham fought his extradition from Canada. The U.S. Attorney's Office now faces the possibility that they won't be able to try Graham at all if Piersol doesn't agree that the defendant is "Indian."

In that situation, the state of South Dakota would be able to prosecute the crime. But it's not clear whether the extradition proceedings for Graham to face charges in federal court mean Graham can be tried in state court.

Aquash, who was born in Nova Scotia, was a prominent activist who helped start the Indian center in Boston, Massachusetts, a city that has historically drawn Mi'kmaqs from Canada. She became involved in the American Indian Movement in the 1970s and took part in the Wounded Knee standoff at Pine Ridge in 1973.

She married Nogeeshik Aquash, an Ojibwe from Canada, on the reservation and, despite her work for AIM, became the target of rumors that she was an informant for the government. The rumors led to her murder, prosecutors allege.

Looking Cloud was found guilty for Aquash's murder in February 2004 and is serving a life sentence in federal prison. The 8th Circuit Court of Appeals rejected his bid to overturn his conviction.

Marshall was indicted in August for his role in the crime. Another suspect, Theda Clarke, took part in the murder, according to prosecutors, but she hasn't been charged.

Looking Cloud, Marshall and Clarke are all members of the Oglala Sioux Tribe. Clarke was considered Graham's "adopted" aunt.

Graham is not a member of the tribe, nor was Aquash. The new indictment does not allege either has Indian blood from a U.S. tribe but states that Graham, through his affiliation with the Oglala Sioux Tribe, his acceptance by tribal members and his participation in tribal life makes him a "recognized Indian."

Graham has been charged under Title 18 of the United States Code. Section 1153 states that any "Indian" who commits a crime in Indian Country is subject to federal court jurisdiction.

Relevant Documents:
Dismissal of John Graham Indictment | New John Graham Indictment