A federal judge in South Dakota has refused to expedite the trial of two men accused of murdering American Indian Movement activist Anna Mae Pictou Aquash
The U.S. Attorney's Office in
sought to try John Graham
, who is from the Southern Tutchone First Nation in the Yukon of Canada,
and Richard Marshall, a member of the Oglala Sioux Tribe
of South Dakota, at the same time in December. But amid opposition from defense attorneys, Judge Lawrence Piersol set the joint trial for February 24, 2009, nearly six years after Graham was first charged with the crime.
Marshall was indicted more recently but prosecutors are linking the men together due to a legal issue that could derail the case against Graham, who is not a member of a U.S.-recognized tribe. Graham is arguing that he can't be tried in federal court because he is not an "Indian" as defined by federal law.
Earlier this month, Piersol dismissed the original indictment against Graham because the "Indian" issue wasn't presented to the grand jury. That forced prosecutors to adjust their
strategy to prevent Graham, who fought his extradition from Canada for five years, from escaping punishment for the December 1975 crime.
Prosecutors are still arguing that Graham is "Indian" but they added charges of aiding and abetting in the second indictment against him. They claim he is subject to federal jurisdiction because he allegedly helped enrolled Oglala Sioux members commit the murder.
According to the U.S. Attorney's Office, Graham fired the gun that killed Aquash, who was targeted because other AIM members believed she was a government informant or may have known about alleged informants. Marshall supplied the weapon, the indictment states.
The government successfully prosecuted Arlo Looking Cloud for the murder. Looking Cloud, who is Oglala, is serving a life term in prison for his role in the murder.
A third Oglala member, Theda Clarke, took part in the crime, according to the indictment, but
she has not been charged. She is reportedly living in an assisted living home in rural Nebraska.
The case remained cold for decades until news reports in January 2003 said a grand jury was looking into Aquash's murder. Looking Cloud was quickly indicted and found guilty about a year later. He was unsuccessful in an appeal.
The case against Graham hasn't gone as smoothly for prosecutors. After being charged in April 2003, he finally appeared in federal court in Rapid City in December 2007, when he pleaded not guilty.
His trial was set to begin on October 6 until the "Indian" issue was raised for the first time. In addition to arguing about his status, Graham noted that Aquash, who was from the Indian Brook First Nation
in Nova Scotia, was not a member of a U.S.-recognized tribe either.
But prosecutors say Graham, who is Tshimshian, and Aquash, who was Mi'kmaq, associated themselves with the Oglala Sioux Tribe and took part in ceremonies. Some Tshimshian are recognized in the U.S. as part of Alaska tribes. A recognized Mi'kmaq tribe is based in Maine.
Order for Trial
John Graham Indictment
| New John Graham Indictment
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