SIOUX FALLS, S.D. - A federal appeals court on Tuesday upheld the dismissal of a key charge against one of two men accused of the 1975 slaying of a fellow American Indian Movement member, opening the possibility he could be tried in state court.
John Graham pleaded not guilty to charges that he killed or aided and abetted in the death of Annie Mae Aquash on the Pine Ridge Indian Reservation.
U.S. District Judge Lawrence Piersol threw out the first indictment against Graham because it did not show that either Graham or Aquash belonged to a federally recognized Native tribe. They both belonged to Canadian tribes.
When federal prosecutors re-indicted Graham, Piersol again dismissed a similar charge against him.
The appeals court agreed that both indictments were flawed because they did not prove that either Graham or Aquash were Native. Tribal status gives the federal government jurisdiction in the case.
U.S. Attorney Marty Jackley and Graham's lawyer, John Murphy, argued the case in April before a three-judge panel of the 8th U.S. Circuit Court of Appeals, which filed its unanimous decision affirming Piersol's dismissal of the charge.
Jackley argued the law does not require Graham to be a Native because the third co-defendant, Arlo Looking Cloud, belongs to a federally recognized tribe.
But the appeals court disagreed, saying federal jurisdiction doesn't extend to an accomplice.
"The counts in both indictments failed to allege Graham's Indian status, which cannot be cured by an application of aider-and-abettor liability," they wrote.
Jackley said his office is "evaluating the decision and available options."
Two charges are pending against Graham, but prosecutors would still have the challenge of showing that either Aquash or Graham were Native.
If federal prosecutors opt to not go forth with a trial against Graham, he could be tried in state court, though that would happen only after government lawyers drop the remaining charges, said Attorney General Larry Long.
"It's still just a little too early to tell. As to the overall question, 'Does the state have jurisdiction?' The answer to that, of course, is yes, if the federal courts have determined conclusively that they don't have jurisdiction," he said.
Murphy said he and Graham are pleased with the decision and that it's resolved.
The other man charged, Richard Marshall, last week asked that he be tried separately. He's pleaded not guilty.
Jurisdiction is not in question with Marshall because he belongs to a recognized tribe, as does Looking Cloud, who was convicted in 2004 for his role in Aquash's murder and sentenced to life in prison.
Witnesses said Looking Cloud, Graham and Theda Clarke, 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.
Clarke is in her mid-80s and lives in a nursing home in western Nebraska. Graham fought his return from British Columbia for more than four years before he was extradited in December 2007.
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