Lawyer: 1975 slaying appeals hearing unwarranted

By Carson Walker
Sioux Falls, South Dakota (AP) 10-09

Federal prosecutors seeking to put a Canadian man on trial in a 1975 slaying have struck out twice with a judge and once with an appeals panel, so a review by a full appeals court is not warranted, the man’s lawyer has argued.

Attorneys for the U.S. government have asked for a rehearing before the full 8th Circuit U.S. Court of Appeals in their case against John Graham of Yukon territory.

Graham and Richard Marshall of Rapid City were scheduled to stand trial during October on federal charges that they killed or aided and abetted the slaying of Annie Mae Aquash of Nova Scotia when they were affiliated with the American Indian Movement.

The trial was postponed while prosecutors challenged the rulings by a federal judge and appeals panel that the U.S. government lacked jurisdiction on one of three counts against Graham because neither he nor Aquash are American Indians as defined by U.S. law while he is in the United States. The federal government has jurisdiction over Indian-related crimes. The judge also said the other two counts are likely to be dismissed for the same reason.

Graham and Thelma Rios of Rapid City also face state charges of taking part in the kidnapping and killing of Aquash. That case has not been scheduled for trial.

Federal prosecutors have said AIM leaders suspected Aquash was a government informant and ordered her to be killed. She was found on the Pine Ridge reservation with a gunshot to the head.

Arlo Looking Cloud of Denver was convicted of murder in 2004 for his role and sentenced to life in prison. He is now a government witness.

Attorneys for the government have argued that because Looking Cloud belongs to a federally recognized Indian tribe, Graham could be charged in federal court as being an accomplice.

The judges who have heard the case disagreed, and without a law giving the U.S. jurisdiction, a rehearing before the full 8th circuit is not warranted, Graham lawyer John Murphy argued in his response filed during the first week of October.

“If the scope of that statute is to be broadened to encompass non-Indians, that is for Congress to do. The government has been unable to cite a single Indian law case that supports its position,” Murphy wrote.

He declined to comment further. The federal prosecutor declined to comment because the case is pending.

It took prosecutors decades to press charges in Aquash’s killing because for a long time, investigators were unable to get enough key witnesses to cooperate. That changed in 2003, when a federal grand jury heard enough evidence to indict Graham and Looking Cloud.