The defense attorney for murder suspect John Graham has filed a motion asking that the indictment against Graham be dismissed, arguing that the U.S. District Court does not have jurisdiction over the case.

Graham is scheduled to go on trial in Rapid City on Oct. 6 for the 1975 murder of Anna Mae Aquash, who was murdered near Wanblee. Another defendant, Arlo Looking Cloud, was convicted of her murder in 2004, and is serving a life sentence in federal prison.

Although Looking Cloud is Lakota, 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.

Because Looking Cloud is considered "Indian," the federal government could prosecute him for Aquash's death, Murphy writes. However, crimes 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 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.

Contact Heidi Bell Gease at 394-8419 or heidi.bell@rapidcityjournal.com