1 The Honorable Lawrence L. Piersol, United States District Judge for the District of South Dakota. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 08-3580 / 09-2009

___________ United States of America, *
* Appellant, * * Appeal from the United States v. * District Court for the District * of South Dakota. John Graham, *
* Appellee. *

___________ Submitted: April 15, 2009 Filed: July 28, 2009 (Corrected: 10/23/2009)

___________ Before RILEY, BENTON, and SHEPHERD, Circuit Judges.

___________ BENTON, Circuit Judge. A grand jury indicted John Graham on one count of first degree murder, 18 U.S.C. § 1153. The district court 1 dismissed the indictment because it failed to allege his Indian status. Months later, the districtcourt dismissed an iden tical count in a later indictment. The government appeals. This court affirms.2The 2008 indictment for first degree murder alleges: Count I: Only Graham is an Indian, citing 18 U.S.C. § 1153; Count II: Only Aquash is an Indian, citing 18 U.S.C. § 1152;

Count III: Graham aided and abetted certain Indians, citing 18 U.S.C. § 1153.
-2- I.
In 2003, a grand jury charged:
On or about the 12th day of December, 1975, near Wa nblee, in Indian Country, in the District of South Dakota, the defendants, Fritz Arlo Looking Cloud, an Indian, and John Graham, a/k/a John Boy Patton, willfully, deliberately, maliciously , and with premeditation and malice aforethought, did unlawfully kill and ai d and abet the unlawful killing of Annie Mae Aquash, a/k/a Annie M ae Pictou, by shooting her with a firearm, in violation of 18 U.S.C. §§ 1111, 1153, and 2.
While the indictment alleged that Looking Cloud was Indian, it did not allege Indian status as to Graham or the victim. Grah am made a pretrial motion to dismiss the indictment, which the court granted. The government appeals.
In 2008, a grand jury again indicted Gr aham on first degree murder. Count I and II of the indictment brought new charge s; Count III, the same charge as the 2003 indictment, did not allege that Graham is Indian. 2Graham moved to dismiss all charges. The court dismissed Count III, preserving Counts I and II for trial. The government appeals the interlocutory dismissal of Count III.-3- Jurisdiction being proper under 28 U.S .C. § 1291 and 18 U.S.C. § 3731, this court consolidated the government’s app eals from the dismissals of both the 2003 indictment and Count III of the 2008 indictment.

II.

This court reviews “ de novo the district court’s decision to grant [a] motion to dismiss the indictment.” United States v. Keeney , 241 F.3d 1040, 1042 (8th Cir. 2001). The Fifth Amendment states: “No pers on shall be held to answer for a capital, or otherwise infamous crime, unless on a pr esentment or indictment of a Grand Jury . . . .” U.S. Const. amend V . Generally, the words “presentment” and “indictment” are interchangeable under the Fifth Amendment. See Hale v. Henkel , 201 U.S. 43, 60-61 (1906).

“An indictment is sufficient if it contai ns ‘all of the essential elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and alleges sufficient information to allow a defe ndant to plead a conviction or acquittal as a bar to subsequent prosecution.’” United States v. Sohn , 567 F.3d 392, 394 (8th Cir. 2009), quoting United States v. Cavins , 543 F.3d 456, 458 (8th Cir. 2008).
The Indian Major Crimes Act, 18 U.S.C . § 1153, extends federal jurisdiction over specific offenses committed by Indians in Indian Country:
Any Indian who commits against th e person or prope rty of another Indian or other person any of the following offenses, namely, murder . . . shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.3 The Indian Country Crimes Act, 18 U.S.C. § 1152, provides federal jurisdiction for crimes occurring within I ndian country between an Indian and a nonIndian.
-4- The government argues that the distri ct court erred in dismissing the indictments, because the failure to alle ge Indian status under § 1153 does not bar federal jurisdiction. See United States v. Pemberton , 405 F.3d 656, 659 (8th Cir. 2005) (holding that “the alleged dispute ove r [the defendant’s] Indian status did not deprive the district court of jurisdiction”); United States v. White Horse , 316 F.3d 769, 772 (8th Cir. 2003) (concluding that th e defendant’s “assertion that he is an Indian is relevant to the matter of proof but irrelevant on the matter of jurisdiction”). See also United States v. Beck , 250 F.3d 1163, 1165 (8th Cir. 2001) (“jurisdictional” elements such as an interstate nexus are not truly jurisdictional because they do not affect a court’s constitutional or statutory power to adjudicate a case). Pemberton and White Horse establish that the court has subject matter jurisdiction; however, they do not control the issue in this case – whether the indictments sufficiently state a violation of § 1153.

The Tenth Circuit considered the suffici ency of an indictment that failed to allege a defendant’s Indian status under the Indian Country Crimes Act, 18 U.S.C. 1152. 3 United States v. Prentiss , 206 F.3d 960, 962 (10th Cir. 2000), rev’d on other grounds , 256 F.3d 971, 985 (10th Cir. 2001) (en banc). The pane l reversed the conviction, holding “the Indian status of the defendant and victim are essential elements under 18 U.S.C. § 1152, which must be alleged in the indictment and established by the government at trial. Because [the defendant’s] indictment did not allege these elements, it is insufficient.” Id . at 966. Accord United States v. Hilderbrand , 261 F.2d 354, 357 (9th Cir. 1958) (dismissing an § 1153 indictment that “did not allege that appellant or vi ctim of the accused was an Indian”).-5- In a Ninth Circuit case, the defendant argued, post-trial, that the § 1153 indictment was defective because it faile d to state that he was an Indian. United States v. James , 980 F.2d 1314, 1316 (9th Cir. 1992). The court noted that “[w]hen the indictment is questioned prior to trial, reference to a statute cannot cure a defect in the indictment where it fails to a llege the elements of the crime.” Id . at 1318, citing United States v. Kurka , 818 F.2d 1427, 1431 (9th Cir. 1987). By “the liberal standard of review” for an indictment challenged post-trial, however, the indictment “adequately” alleged the nece ssary elements of the crim e by including a reference to the statute. Id

. In this case, Graham’s pr etrial motions challenged th e sufficiency of the failure to allege his Indian status. The plai n language of § 1153 covers any “Indian” who commits murder. This court concludes th at the indictments are deficient because Graham’s Indian status is an essential element of § 1153.
The government also argues that the court erred in dismissing the indictment because Graham can be charged as an ai der-and-abettor. Looking Cloud was properly indicted under § 1153. See United States v. Looking Cloud , 419 F.3d 781, 785 n.3 (8th Cir. 2005). The government claims th at liability extends to Graham without an allegation of Indian status. The law provides that
a) Whoever commits an offense agains t the United States or aids, abets, counsels, commands, induces or proc ures its commission, is punishable as a principal. b) Whoever willfully causes an act to be done which if directly performed by him or another person would be an offense against the United States, is punishable as a principal.
18 U.S.C. § 2.-6- The government cites no authority applying aider-and-abettor liability in the Indian law context. See United States v. Rector , 538 F.2d 223, 225 (8th Cir. 1976) (stating that 18 U.S.C. § 2 is generally applicable to the entir e criminal code); United States v. Sigalow , 812 F.2d 783, 785 (2d Cir. 1987) (“ A defendant can be convicted as an aider and abettor without proof that he participated in each and every element of the offense.”); United States v. Standefer , 610 F.2d 1076, 1085 (3d Cir. 1979) (en banc) (affirming conviction of private c itizen as aider and abettor under statute prohibiting government officials from receiving gifts), aff’d , 447 U.S. 10 (1980); United States v. Lester , 363 F.2d 68, 73 (6th Cir. 1966) (affirming convictions for aiding and abetting police officers in cons piracy even though defendants could not act under “color of law”).
This court has considered accomplice liability under the Indian Major Crimes Act. United States v. Norquay , 905 F.2d 1157, 1159-63 (8th Cir. 1990). There, the defendant, an Indian, pled guilty to bur glary under § 1153. This court addressed whether he should be sentenced under Minnesota or federal law. The defendant argued that, because his non-Indian accomplice could be prosecuted only under Minnesota law, he should be sentenced under Minnesota law to avoid disparate treatment. This court reasoned that Federal Sentencing Guidelines applied, but agreed that the accomplice could not be federally prosecuted:

Defendant is correct that his non-I ndian accomplice is outside the reach of federal jurisdiction because the vi ctim of the burglary was also a nonIndian. United States v. McBratney , 104 U.S. 621, 26 L. Ed. 869 (1881) (Congress did not assume jurisdic tion over crimes committed within Indian country by non-Indians against other non-Indians in 18 U.S.C. § 1152 and therefore the states have jurisdiction over these offenses) (McBratney ); see United States v. Antelope , 430 U.S. 641, 644 n.4, 97 S.Ct. 1395, 1397 n.4, 51 L. Ed. 2d 701 (1977).-7- Id . at 1162. Accord United States v. Dodge , 538 F.2d 770, 775-76 (8th Cir. 1976) (reversing burglary conviction involving non -Indians for lack of jurisdiction); United States v. Torres , 733 F.2d 449, 453 n.1 (7th Cir. 1984) (noting that a non-Indian, who allegedly conspired to murder a non-Indi an, was not prosecuted under §§ 1153 or 2).

Based on Norquay, § 2 does not extend federal jurisdiction to an accomplice charged under § 1153. The counts in both indictments failed to allege Graham’s Indian status, which cannot be cured by anapplication of aider-and-abettor liability.

III. The judgment of the district court is affirmed.

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