John Graham's Attorney Argues that Graham Is Not "Indian" Under Federal Criminal Law

"[F]ederal 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 recognized as an Indian through living on the reservation and participating in Indian social life."--Rapid City Journal (9-25-08)

American Indian Movement (AIM) member John Graham (pictured above) goes on trial on October 6, 2008, for the December 1975 murder of the Canadian Indian Anna Mae Aquash. Anna Mae's body was found on the Pine Ridge Indian reservation near Wanblee, S. Dakota. She may have been killed because Leonard Peltier told her that he killed two FBI agents and there were fears she would reveal this information to the FBI.

The prosecution will ask Dr. Gary Peterson, a pathologist who examined Anna Mae's remains, to testify. Dr. Peterson found that Anna Mae had been shot in the back of the head and that there was evience she had been raped or had sex before she was murdered.

The Rapid City Journal (9-25-08) reports that Graham's defense attorney John Murphy is arguing that the indictment should be dismissed because U.S. District Court does not have jurisdiction over the case because Graham is a Canadian Indian:

...[Murphy argues that] 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.

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

Aquash, Graham and [convicted killer Arlo] 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. [Full text]

The assertions in this article are a real surprise to me. I always thought that the crime of murder on an Indian reservation was a federal offense and that the race or nationality of the person was irrelevant. I will have to find out more about this.