Federal prosecutors have filed a superceding indictment against John Graham, again charging him in the 1975 slaying of activist Annie Mae "Anna" Aquash.
Graham, 52, was supposed to go on trial this week in U.S. District Court for the murder of Aquash, a fellow American Indian Movement activist whose body was found near Wanblee on the Pine Ridge Indian Reservation. Aquash, 30, had been shot in the head.
But after a last-minute motion filed last week by defense attorney John Murphy, U.S. District Judge Lawrence Piersol canceled Graham's trial because of problems with the indictment.
Both Graham and Aquash were Canadian citizens and members of Canadian tribes, but the original indictment did not show that either was a member of a federally recognized Native American tribe. For a crime that occurs on the reservation to be tried in federal court, either the defendant or the victim must be Native American; otherwise, the state has jurisdiction.
Murphy argued that the federal government did not have jurisdiction based on the indictment.
Within hours of the judge's ruling last Friday, prosecutors filed a complaint against Graham that included an affidavit signed by a Federal Bureau of Investigation FBI agent.
On Tuesday, a federal grand jury issued a superceding indictment that charges Graham and Vine Richard Marshall, also known as Dick or Dickie Marshall, with committing or aiding the first-degree murder of Aquash in December 1975.
The indictment lists three alternative counts. One alleges federal jurisdiction over Graham and Marshall based on Indian status; the second alleges jurisdiction over Graham based on Aquash's Indian status; and the third alleges jurisdiction over Graham based on his aiding and abetting others who are Indians, including Marshall, Fritz Arlo Looking Cloud and Theda Nelson-Clarke, in Aquash's murder.
All of the counts carry a mandatory penalty of life in prison.
Looking Cloud was convicted at trial in 2004 and is serving a mandatory life sentence. Nelson-Clarke lives in a nursing home in Nebraska and has not been charged. Marshall is scheduled for trial Feb. 24.
The superceding indictment eliminates the need for Graham's preliminary hearing, which was scheduled for Oct. 17.
