SD court upholds conviction in 1975 AIM slaying

The South Dakota Supreme Court on Thursday upheld a Canadian man's murder conviction and life sentence in the 1975 slaying of a fellow American Indian Movement activist, ruling that the state had jurisdiction to prosecute him.

John Graham was convicted in December 2010 of taking part in the killing of Annie Mae Aquash. Prosecutors said Graham and two other AIM activists, Arlo Looking Cloud and Theda Clarke, killed Aquash because they suspected she was a government informant.

Graham, a member of the Southern Tutchone tribe in Canada's Yukon Territory, argued that the government should not have been allowed to move his case from federal to state court after his extradition to the U.S.

However, the state's highest court ruled unanimously that the state had jurisdiction to prosecute Graham and that prosecutors presented sufficient evidence to convict him. Graham's sentence of life in prison without parole also is not grossly disproportionate to his crime, the justices said.

"Indeed, the evidence reflects that Graham was involved in Aquash's initial kidnapping, in ensuring that she was kept in captivity, in transporting her to her place of death, and in the ultimate shooting," Justice Steven Zinter wrote for the court.

Graham's lawyer, John R. Murphy of Rapid City, said he and Graham are disappointed in the ruling but will pursue secondary appeals.

"We are going to continue to pursue relief both in the courts in the United States as well as seeking to address certain matters regarding the propriety of the extradition in Canada," Murphy said.

South Dakota Attorney General Marty Jackley said state, federal and tribal authorities have cooperated for 35 years to bring justice for Aquash and her family.

Asked if authorities are still investigating other suspects for possible involvement in Aquash's murder, Jackley said: "This remains an ongoing, open investigation."

Aquash's body was found in a remote area in southwest South Dakota in February 1976. She was a member of the Mi'kmaq tribe of Novia Scotia. Federal agents investigated the case for years but didn't bring an indictment until March 2003, when Denver police arrested Looking Cloud.

Looking Cloud was convicted in federal court of first-degree murder in 2004 and sentenced to life in prison. A federal judge signed an order in August reducing Looking Cloud's sentence to 20 years.

Clark, who was never charged, died in October.

Graham was arrested in December 2003 in Vancouver, British Columbia, on federal charges in Aquash's killing. Two courts ruled that the U.S. government lacked jurisdiction to try Graham because he is not an American Indian. The case was eventually moved to state court.

Graham was acquitted of premeditated murder in the state trial, but was convicted of felony murder and sentenced to life in prison without parole. The felony murder charge alleged he was involved in a killing while engaged in another felony, kidnapping.

Graham argued that the state lacked jurisdiction to prosecute him for felony murder because he was extradited from Canada on a different charge, premeditated murder. He contended that his conviction should be overturned and he should be allowed to return to Canada to challenge his extradition.

But the Supreme Court said Canada consented in February 2010 to Graham's prosecution for felony murder.

"Graham has not argued that Canada did or would object to Graham's prosecution for felony murder. On the contrary, the only record evidence reflects Canada's express consent to the prosecution," the court said.

Graham also contended that several witness statements should not have been allowed at his trial, including those made by Looking Cloud about an alleged 2002 telephone conversation between Looking Cloud and Aquash's daughter, Denise Maloney, in which Looking Cloud said Graham shot Aquash with Looking Cloud and Clarke present.

Graham said Looking Cloud changed his story to negotiate a reduced sentence.

The Supreme Court said Looking Cloud's testimony was admissible because it was consistent with his prior statement to Maloney in the telephone call.

The appeal also questioned the inclusion of another person's testimony about a conversation in which Leonard Peltier — who is serving a life sentence after being convicted in 1977 of shooting two FBI agents — accused Aquash of being an FBI informant. The Supreme Court said that person's testimony was impermissible hearsay, but that its inclusion in the trial was a harmless error because it would not have affected the verdict.

AIM was founded in the late 1960s to protest the U.S. government's treatment of Indians and to demand the government honor its treaties with Indian tribes. The group grabbed headlines in 1973 when it took over the village of Wounded Knee on South Dakota's Pine Ridge Indian Reservation, leading to a 71-day standoff with federal agents that included the exchange of gunfire.