The Associated Press

Tue, Oct 7, 2008 (5:27 p.m.)

A new federal indictment has been handed up against a Canadian man who was days from being tried in the 1975 slaying of a fellow American Indian Movement member when a judge threw out the original charges.

Federal prosecutors said Tuesday that the new indictment by a jury in Rapid City addresses the concerns that prompted the dismissal of the earlier charges against John Graham in the slaying of fellow Canadian Annie Mae Aquash in 1975 on the Pine Ridge Indian Reservation.

Graham had been set to stand trial this week, but a judge on Friday threw out the original indictment because it didn't show that either Graham or Aquash belonged to a federally recognized American Indian tribe. Tribal status gives the federal government jurisdiction in the case.

Graham is from the Tsimshian Tribe in the Yukon and fought his return to South Dakota in Vancouver, British Columbia, for more than four years. He was extradited in December after the Supreme Court of Canada refused to review his case.

Aquash, a member of Mi'kmaq Tribe of Nova Scotia, was killed by a gunshot wound to the head near Wanblee. The 30-year-old was among the Indian militants who occupied the village of Wounded Knee in a 71-day standoff with federal authorities in 1973 that included an exchange of gunfire with agents who surrounded the village.

The new indictment combines Graham's case with that of another defendant, Richard Marshall, who was charged in August.

U.S. Attorney Marty Jackley said Tuesday the new indictment charges Graham and Marshall with three alternative counts of first-degree murder and aiding and abetting Aquash's killing, and alleges that both men, like the victim, are Indian.

Another AIM member, Arlo Looking Cloud, was convicted in 2004 of killing Aquash and sentenced to a mandatory life prison term. He is a Lakota who was living homeless in Denver.

Witnesses at Looking Cloud's trial said he, Graham and another AIM member, Theda Clarke, drove Aquash from Denver in late 1975 and that Graham shot Aquash in the Badlands as she begged for her life.

Graham has denied killing Aquash but acknowledges being in the car. Clarke, who lives in a nursing home in western Nebraska, has not been charged.

Some speculated Aquash was killed by AIM members because she knew some of them were government spies, while others said she was executed because she herself was an informant. Federal authorities have said Aquash was not an informant and they had nothing to do with her death.

The judge scheduled the trial for Graham and Marshall in February in Rapid City.