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* CR. 03-50020


BEFORE: The Honorable Lawrence L. Piersol
Chief United States District Judge
For the District of South Dakota
Sioux Falls, South Dakota


Mr. James McMahon
Mr. Robert Mandel
United States Attorney
Sioux Falls, South Dakota
Attorneys for the Plaintiff.

Mr. Timothy Rensch
Attorney at Law
Rapid City, South Dakota
Attorney for the Defendant.

PROCEEDINGS: The above-entitled matter came on for
hearing on the 3rd day of February, 2004
commencing at the hour of 9:00 a.m. in the
courtroom of the Federal Building, Rapid
City, South Dakota.

Proceedings recorded by mechanical stenography, transcript
produced by computer.

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877





(A jury was duly selected.)

(Court Reads Preliminary Instructions.)

THE COURT: That completes my preliminary instructions, and

counsel for the government may give opening statements.

MR. McMAHON: Ladies and gentlemen. On a December morning in

1975 a little red Pinto wagon pulled up to the edge of a road about

three miles north of the junction between Highway 73 and 44. The

driver of that little red car was Theda Clark, there were three

passengers in the car; the defendant, Arlo Looking Cloud, fellow

by the name of John Graham, and Anna Mae Aquash. After Anna

Mae was taken out of the car, she was walked by the defendant

and by Mr. Graham from the edge of the road out to the edge of

that cliff. All the way out there she was begging them not to kill

her. When they got to the edge of the cliff and she realized that

her pleas were to no avail, she asked to have time to pray. While

she was praying on the edge of that cliff she was shot in the back

of the head. Her body was either thrown or fell over the cliff, came

to rest right there where that white mark is. Stayed there for about

two and a half months until a rancher riding fence found it. After

Anna Mae was killed, the defendant, Mr. Graham, walked back to

the car and three people drove back to Denver. So who was Anna

Mae Aquash, why was she taken to that cliff to be killed, and how

did she get there?


JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877





This is Anna Mae Aquash. Anna Mae was a member of the Mik'maq

Tribe from Canada. She was a mother of two young daughters.

She came to the United States to support the American Indian

Movement. She came down at a time that AIM was occupying

Wounded Knee. She joined the occupation and she stayed. She

spent the next two years attending AIM events, making friends

within the AIM organization. When she wasn't attending events

somewhere else around the country, she was often times on the

Pine Ridge Indian reservation. But at the same time she was

making friends. As we approached the year 1975 there started

to be rumors all through the AIM movement that Anna Mae Aquash

was a government informant. Portions of the AIM movement

within South Dakota had turned somewhat violent. There had

been riots at the Custer courthouse, Minnehaha courthouse in

Sioux Falls, the occupation of Wounded Knee when there was gun

fire exchanged between the occupants and federal authorities,

and there were rumors of many people possibly being

informants. But particularly Anna Mae. We are going to pick

up our story in June of 1975. There was an AIM national

convention held in Farmington, New Mexico. Hundreds of people

gathered from around the country, some of the leaders of the

AIM movement were there, Anna Mae was there, Dennis Banks, one

of the leaders, was there. There were many people there.

Along with Dennis Banks was a young lady by the name of Kamook

Nichols. Kamook finished high school in 1927 at seventeen

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877



years old and following that she entered in to a relationship

with Mr. Banks, and she traveled with him and the two of them

eventually had four children together. They were together in

Farmington. During this national convention there was a

general topic of conversation that Anna Mae was a government

informant. She was confronted down there with the possibility

that she was an informant, she was actually threatened down

there. She denied it. And she was not. After the convention

ended, the participants went back to their various homes.

There were a number of them that came back to South Dakota to

the Pine Ridge Indian reservation, and there was encampment at

a place called Jumping Bull on the Pine Ridge Indian

reservation. On June 26, 1975, two FBI agents by the name of

Coler and Williams were following someone they believed to be

a fugitive, and they found themselves at that encampment.

They came under fire and they were shot and killed. This

escalated the tension immensely between law enforcement and

members of the AIM movement. In the next month, July of 1975

there was a trial in Custer, South Dakota. Dennis Banks was

on trial for his participation in the courthouse riots down

there. Mr. Banks was convicted during that trial, he was let

out on bond pending his sentencing. He went back to the Pine

Ridge Reservation and was waiting around there. He was

supposed to be sentenced approximately four to six weeks

later, something like that. When it was time for him to go

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877



back for his sentencing he made a decision that he was not

going to go back to be sentenced, he decided to run. Kamook

went with him. On September 5, 1975, law enforcement

conducted a raid at a place called Crow Dog's Paradise which

is on the Rosebud reservation. There were a number of people

arrested during that raid and charged with weapons and

explosives violations. Anna Mae Aquash was one of those

people. The people arrested were taken to Federal Court in

Pierre, South Dakota for an appearance. Anna Mae appeared,

she had a court appointed lawyer by the name of Bob Riter from

Pierre. The Judge let Anna Mae out on bond, and she was

supposed to come back on November 10th. After Anna Mae was

out on bond she traveled to California. She stayed with a

friend of her's by the name of Mathalene White Bear. She and

Mathalene had become acquainted through being together at

different AIM organizational events. Mathalene was a young

woman at the time, twenty years old, she was still living at

home with her parents, and Anna Mae stayed with them for a

week or two. During that time Anna Mae shared with Mathalene

that she was - -

MR. RENSCH: At this point I object, getting in to

argument that is inadmissible evidence.

THE COURT: We will see if it is admissible. It is

the attorney's expectation that the evidence will be admitted,

I can't rule on it yet because the evidence hasn't been

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877



presented. So I am not going to sustain the objection,

because I don't know at this point, but it is supposed to be.

If it isn't, I'm sure we will hear about it if it isn't

admitted, proceed.

MR. McMAHON: Thank you. Your Honor. Anna Mae

confided in Mathalene that she had been confronted about

being an informant. She was very fearful for her life. She

was afraid of the FBI, and she was afraid of different

factions within AIM. She told Mathalene that she was

concerned about she may be killed. She received a telephone

call while she was there, she told Mathalene she was leaving.

Mathalene tried to talk her out of it, but Anna Mae said she

was going to go. She met up with a man by the name of David

Hill, and they drove a motor home from Los Angeles back to

Chadron, Nebraska. They parked the motor home there and made

their way up to the Pine Ridge Indian reservation. We are now

approaching Columbus Day, 1975, October 12. There was a

get-together on the Pine Ridge. Mr. Banks was back for the

meeting, Leonard Peltier was there, David Hill was there, Anna

Mae was at this meeting, and Kamook Nichols was at the

meeting. And there may have been others. A plan was hatched

whereby they were going to make some home made bombs and plant

them at utilities in Pine Ridge. Leonard Peltier and David

Hill made Anna Mae participate in that so her fingerprints

would be on the bombs. So the next day when they were planted

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877



they made her participate in that. They then made their way

back to Chadron and picked up the motor home, Mr. Banks,

Leonard Peltier, Anna Mae, and Kamook Nichols, Kamook's

sister, and one or two others were in the motor home. They

were taking Anna Mae with them because they wanted to keep an

eye on her. They traveled from Chadron, Nebraska to the state

of Washington where they camped for two or three weeks.

During that time there were more accusations, more

conversation about Anna Mae being an informant. She was not

allowed to go anywhere alone. When they left that spot they

started on the road, they were traveling down a highway in

Oregon, a Highway Patrolman saw the motor home, he knew who

was in the motor home, and he stopped it. He ordered the

occupants of the motor home out. All of the occupants got out

of the motor home except Mr. Banks. Mr. Banks decided to take

off in the motor home and an exchange of gun fire followed

between the gun fire and the motor home. Mr. Banks got away

during the gun fire, Mr. Peltier got away. Anna Mae was

re-arrested, Kamook Nichols was arrested, there were a couple

other people there that were following in a car that were

arrested. Anna Mae and Kamook Nichols were put in a jail cell

together. Now they hadn't been spending much time together.

They were friends from 1973 when Anna Mae showed up until June

of '75 in Farmington, New Mexico, they became friends and

spent quite a bit of time together. While they were in

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877



Farmington, New Mexico, Kamook learned that Anna Mae Aquash

had also fallen in love and entered in to a relationship with

Mr. Banks. So during the summer months and through that fall

there was not much contact between the two of them. But now

when they were alone together in the jail cell they began

visiting again. And Anna Mae also shared with Kamook that she

was scared. They were in jail up there for about two weeks,

and then they were brought back to this part of the country.

Kamook was taken to Kansas where she was wanted because she

had missed a court date while they were traveling in the motor

home. Anna Mae was taken to Pierre, South Dakota, because she

had missed her November ten court date. She appeared in court

on November 24. This was the day before her trial on the

weapons and explosive charges was set to begin. She met with

her court appointed attorney. When she appeared in court,

even though she had just missed a court appearance, the Judge

let her out on bond again. During the night she was picked up

by two people within the American Indian Movement, Evelyn

Bordeau and her husband Ray Handboy. They transported her to

Denver. She was taken by Theda Clark to the home of Troy Lynn

Yellow Wood. Ms. Yellow Wood had an apartment there and it

was used for members of AIM as more or less of a safe house

when they were on the run. She was dropped off there with

Theda Clark and Michelle Wood to keep her there safe. She was

not initially being held against her will. She spent

JERRY J, MAY. RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877



Thanksgiving there. She spent in to December there, but she

was very scared while she was there. The first part of

December a call came from South Dakota down to Denver, by

Angie Janis. Said that Anna Mae was an informant, she was

wanted back in South Dakota. A meeting was convened at the

home of Troy Lynn Yellow Wood. Theda Clark was there, and of

course Troy Lynn Yellow Wood was there. Angie Janis was there,

there were some members of the Crusade for Justice there,

which was I believe it was a Chicano organization out of

Denver that had close ties with the AIM people. And there

were other people there who have not yet been identified. The

defendant Arlo Looking Cloud was there, and John Graham was

there, and their job during this meeting was they kept Anna

Mae Aquash in a separate room under guard. When the meeting

ended, Theda Clark came to the room and said let's go. They

got Anna Mae up and they tied her wrists together. They

started escorting her out of the house, they ran in to Troy

Lynn Yellow Wood. Anna Mae was crying, she said I don't want

to go. If I go back to South Dakota you will never see me

alive again. Troy Lynn Yellow Wood had a conversation with

Theda Clark, Theda Clark said she is going one way or the

other. The defendant, Mr. Looking Cloud, and John Graham

marched her out of the apartment, put her in the back, the

hatch end of that little red Pinto car that was owned by Theda

Clark, tied up, then the two of them got in the car along with

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877



Theda Clark. They drove all night to Rapid City. Early in

the morning they arrived and they went to an empty apartment

that was owned by Thelma Rios, another AIM member in Rapid.

The defendant, Mr. Looking Cloud, and John Graham kept Anna

Mae Aquash under guard all day. Theda Clark was in and out of

the house. Some point late in the afternoon Anna Mae was

taken to a house that had been set up for what was called the

Wounded Knee Legal Defense-Offense Committee. They used it to

coordinate the defense of people that had been charged with

criminal cases, or AIM members. There was another meeting at

that time involving Anna Mae, she was seen to be visibly

upset. When they left that house, the defendant, Mr. Graham,

Theda Clark again took Anna Mae, they put her back in the

little red Pinto, again bound up, tied up. The defendant was

now driving and they headed south toward the Pine Ridge Indian

reservation. They first went to a small town, Allen, South

Dakota, on the Pine Ridge reservation. About three or four

hundred people live there, it was late at night by now, about

eleven o'clock at night. They showed up at the house of Cleo

and Dick Marshal. The Marshals were in bed already, they woke

them up, went into the house. They left Anna Mae at the

kitchen table with Cleo. The defendant, John Graham, Theda

Clark and Dick Marshal walked into the next room and shut the

door. A few minutes later they came out. Dick Marshal said

to his wife they want us to keep her here for a while. Cleo

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877



said I don't like the looks of this, no way. So the

defendant, Mr. Graham, Theda Clark take Anna Mae, put her back

in the car again and now they are on their way to Rosebud.

They stop at a house in Rosebud in the wee hours of the

morning. This time just Theda Clark and John Graham go in the

house, and the defendant stays in the car and guards Anna Mae.

While they are in that car, she begs him to let her go. She

tells him she knows she is going to be killed, and she begs to

be set free. The defendant refuses. Theda Clark and John

Graham come out of the house, they get into the car, they

start driving north. North toward Wanblee. Soon they cross

the intersection of Highway 44, they are going north on

Highway 73. Three miles approximately north of that

intersection is where they pulled over. Now as I said to you,

Anna Mae's body laid at the bottom of that cliff until late in

February. Roger Amiotte, a rancher was out riding fence,

found the body and reported it immediately. The body had been

there long enough that it wasn't in very good shape. An

autopsy was done by a doctor by the name of Dr. Brown out of

Scotts Bluff, Nebraska. In a nutshell, that autopsy was

botched. Dr. Brown found that the cause of death was

exposure. Didn't even find the bullet hole in her head.

Commented about the weight of the kidneys, but it turns out

later that the kidneys hadn't ever been removed from the body

to be weighed. Because of the condition of the body, they

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, tt305A
Sioux Falls, South Dakota 57104 (605) 330-4877



couldn't take fingerprints there, so they severed the hands

and sent them back to the lab in Washington, D.C., the FBI

lab. Approximately two weeks later the report came back Anna

Mae Aquash. At that time the FBI and the family of Anna Mae

both started down the same road to obtain a Court order to

have the body exhumed and another autopsy done. That was

done. There was discussions about having two pathologists at

the autopsy, what ended up happening is the pathologist that

was obtained by the Aquash family is the one that did the

second autopsy because the FBI said we are fine with that.

Dr. Garry Peterson from Minneapolis came and did that second

autopsy. He didn't realize even when he arrived that he was

going to do the autopsy. On initial examination of the body

he noticed right away there was what he believed to be a gun

shot wound to the back of the head. He ordered X-rays of the

skull which clearly slowed there was a bullet lodged in the

upper left part of her skull. He completed the autopsy and

found that she had been shot in the head and killed. An

investigation pursued, hundreds and thousands of hours spent,

but because of the tensions of the time between law

enforcement and AIM, there wasn't much cooperation going on.

So the case was not being solved. Years later as the years

went on bits and pieces came in, and finally people started tc

be willing to talk about this. Starting in approximately 1988

the defendant, Mr. Looking Cloud, started to talk to some

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877




people about his involvement in Anna Mae's murder. He made

statements to a number of people. We are going to bring those

statements to you. You are going to hear that the statements

are inconsistent in various areas depending on who he is

talking to. You are going to hear Mr. Looking Cloud profess

his ignorance that he didn't know what was going on. After

you compile and listen to all those statements and the other

evidence, it is going to show you through his own words from

the time in Denver when Anna Mae Aquash was taken, bound and

put in to that little red Pinto, when she was hauled bound and

tied up to Rapid City, when she was hauled bound and tied up

down to the Pine Ridge Reservation, to the Rosebud reservation

and out to that cliff on the south edge of the Bad Lands where

she was killed, Mr. Looking Cloud was there every step of the

way. And when we are done with the evidence, ladies and

gentlemen, we are going to ask you to find him guilty. Thank


THE COURT: Counsel.

MR. RENSCH: Thank you, Your Honor. Arlo Looking

Cloud didn't kill anybody. Arlo Looking Cloud the evidence in

this case will show didn't help kill Mrs. Pictou-Aquash. Arlo

Looking Cloud today, this year, is a fifty year old man. In

1975 he was a 22 year old young adult. He was born in South

Dakota, he lived on the reservation for a period of time, he

lived in Denver for a period of time, and he spent his young

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877



adult years in Sante Fe at an art school. You will find that

this is a case of fate. You will find through the evidence in

this case that what Arlo Looking Cloud became embroiled in was

simply being in the wrong place at the wrong time. You see in

December of 1975 Arlo lived in a place near the projects down

in Denver. He lived with a woman by the name of Charlotte

Zephier. He had a job selling art, making paintings, things

of that nature. He had a little boy. Up to that point in his

life he had had some problems with alcohol and with drugs, but

he was doing well. And this weekend in early December of 1975

his path would change. You see, the woman who lived with him,

Charlotte Zephier, was going on a trip that weekend, she was

going to Nebraska and taking his son to Nebraska to visit some

relatives. And what does Arlo do, the 22 year old young man

that he is, he goes out on the town. He goes out on the town

with a friend who was named Joe Morgan, and he goes drinking

with this other young adult down in the streets of Denver,

down in the bars of Denver, down in the haunts of Denver, and

he drinks all night. And he comes home to his empty house,

his woman is not there, his live-in girlfriend is not there

with their child, and he sleeps off his hangover. And he

sleeps all day. He sleeps all day, and he wakes up in the

afternoon with a splitting headache, and little did he know

his path was going to change. You see he gets out of his bed

and he puts his clothes on and he decides to go downtown again

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877



and try to find his friend Joe Morgan, and that's what changed

his fate. When he dressed that evening, little did he know

that Joe Morgan wouldn't be over at Yellow Wood's house. Troy

Lynn was a friend of Arlo's, Troy Lynn was a friend of many

people. Troy Lynn lived close to Arlo, so when he walked over

to his house that night in late December, his intent was not

to kill somebody or help premeditate the end of a human being,

his intent was to go down drinking that day because he had a

hangover, he appeared on the steps and knocked on the door to

see if his friend Joe Morgan is there and Troy Lynn doesn't

answer. Theda Clark is there. Theda Clark is a fifty'ish

Indian woman at this point in her life who owns a bar in

Colorado, Arlo had known her from before. He had driven for

her from time to time, she would give him some drinks, let him

drink in her bar, things of this nature. Theda on this night

says to young Arlo, hey, we want you to drive up to Rapid City

for us. Arlo doesn't really want to drive up to Rapid City

for her. You will find evidence in this case that Theda

Clark, well, she was older, she was pushy, and when she asked

Arlo to drive to Rapid City, Arlo said okay, I will do it.

His friend Joe Morgan wasn't there, and he was would just

drive to Rapid City for Theda. As he steps in to the house of

Yellow Wood's they don't really let him go many places in the

house, they shoo him right down to the basement. And as he is

walking down those basement steps little does he know he is

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877

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