SIOUX FALLS, S.D. (AP) — John Graham "pulled off the cruelest of 11th-hour heists" by forcing another delay in his trial that was scheduled to start Monday on charges he killed Annie Mae Aquash in 1975, her family said in a statement.
U.S. District Judge Lawrence Piersol canceled the Rapid City trial on Friday after concluding the indictment was "fatally defective" because the government failed to present the issue of whether Graham was an Indian to the grand jury.
Graham and Aquash were Canadian citizens and members of Canadian tribes, but the indictment doesn't show that either is a member of a federally recognized American Indian tribe, which the law requires, argued his lawyer, John Murphy.
Aquash's older daughter, Denise Maloney Pictou, didn't comment on the ruling but wrote in a statement that "lies and cowardice collide with irony" with it because Graham first claimed he couldn't get a fair trial in the U.S. because he is Indian, then argued he wasn't.
Years upon years of waiting
Family members are "devastated" they have to wait longer, she wrote.
"After 33 years, our family's journey is beginning to feel more like an exorcism of truth than a quest for justice," Maloney Pictou wrote.
"Our mother's spirit has been captive in this charade for long enough. Assaulted, raped and murdered in life, Annie Mae's Spirit continues to be assaulted and denied justice. The rape continues."
Graham's daughters could not be reached Monday.
Murphy said Monday he did not want to comment.
Issue is tribal membership
Federal prosecutors Marty Jackley and Bob Mandel argued that the indictment was sufficient because the other man indicted and already convicted, Arlo Looking Cloud, does fit the definition of Indian.
Looking Cloud is an Oglala Lakota originally from Pine Ridge. The indictment would allow jurors to find that Graham aided and abetted Looking Cloud, the prosecutors argued.
Piersol rejected that.
Graham is from the Tsimshian Tribe in the Yukon and for four years fought his return to South Dakota in Vancouver, British Columbia. 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, died of a gunshot wound to the head near Wanblee on the Pine Ridge Indian Reservation. Her body was found Feb. 24, 1976, and she was buried weeks later as Jane Doe but was disinterred when tests determined it was her body.
Aquash was reburied at an Oglala cemetery but her family exhumed the body in 2004 and returned it to Canada. She was laid to rest a third time at the Indian Brook reservation in Shubenacadie, Nova Scotia.
An 11th-hour intervention
In her statement, Maloney Pictou wrote that Graham's previous attorneys intervened in the 11th hour of preparing for the ceremony over a demand for DNA testing.
"During our traditional wake for our mother we were served with an injunction, filed with embarrassing inaccuracies and false information by Graham's lawyers in Canada threatening yet again to cancel our 28-year-old delayed funeral," she wrote.
The reburial was ultimately allowed because the lawyers dropped their request for a third autopsy after DNA tests concluded the body was too decomposed.
Graham made his initial court appearance Friday on a new complaint prosecutors filed against him within hours of the judge's ruling. They have 10 days to hold a preliminary hearing or bring a new indictment against Graham.
Looking Cloud was convicted in 2004 and sentenced to a mandatory life prison term.
A third AIM member, Richard Marshall, was indicted separately in August and is scheduled to stand trial in February on a charge of aiding and abetting Aquash's murder.
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.