SIOUX FALLS, S.D.—A federal judge dismissed a key charge against one of two men accused in the 1975 slaying of a fellow American Indian Movement member and scheduled a hearing on whether they should be tried separately.
John Graham and Richard Marshall are scheduled to stand trial starting May 12 in Rapid City on federal charges they killed or aided and abetted the murder of Annie Mae Aquash on the Pine Ridge Indian 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. He’s now a government witness.
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 American Indian tribe. Tribal status gives the federal government jurisdiction in the case.
In other words, Graham is a Canadian Indian and Aquash was a Canadian Indian, so neither fit the definition of American Indian.
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.
Federal prosecutors re-indicted Graham and Marshall, combined their cases and appealed Piersol’s ruling. A three-judge panel with the 8th U.S. Circuit Court of appeals in St. Louis heard oral arguments on it April 15 but hasn’t filed a decision.
Piersol has filed an order dismissing the third count against Graham in the new indictment—which is similar to the 2003 charge—which means prosecutors must prove to jurors that either Graham or Aquash was part Indian.
Otherwise, the other two remaining charges against Graham will likely be dismissed, though the state of South Dakota could try him, Piersol wrote in his order.
Federal prosecutors argued that because Looking Cloud is Lakota, Graham can be charged as an aider and abetter. But Marshall’s lawyer disputed that, saying federal law requires membership to a federally recognized tribe.
Piersol agreed.
“There is no authority for this proposition, and the Court rejects it,” he said.
U.S. Attorney Marty Jackley said late Thursday he appealed the dismissal of the third count to a federal appeals court.
Piersol wrote that “considering the likelihood” the other two charges against Graham will be dismissed at trial, he wants lawyers to be ready to discuss whether the Graham and Marshall cases should be split, which both defense lawyers want.
Piersol scheduled a hearing for Tuesday in Rapid City to deal with it and other motions, including two filed by Marshall.
One is to dismiss the indictment because the government waited 33 years to charge Marshall. Piersol wrote in an order that it does not appear prosecutors recklessly or intentionally delayed the charge but agreed to hear arguments on the motion.
The other request by Marshall is to prevent a government witness from testifying about a comment attributed to Marshall but one he denies making regarding whether Aquash was tied up at his house the night she was killed.
The prosecution theory is that Marshall gave a .32-caliber revolver and shells to Graham, Looking Cloud and Theda Clarke when they stopped by Marshall’s house with Aquash hours before Graham shot her because AIM leaders suspected her of being a government informant.
Clarke, who lives in a nursing home in western Nebraska, has not been charged, though prosecutors plan to call her as a witness.
