Ian Mulgrew: Ghost Dancers return to haunt B.C. Supreme Court
Credit to Author: Ian Mulgrew| Date: Tue, 01 Oct 2019 16:24:41 +0000
A Canadian convicted of an infamous U.S. murder claims he was illegally extradited a decade ago, reopening bitter debates from the turbulent seventies over the 1973 armed standoff at Wounded Knee by American Indian Movement militants.
In a 60-page application to the B.C. Supreme Court for judicial review, John Graham accused U.S. and Canadian authorities of reaching a backroom deal about what happened in the blood-soaked South Dakota Badlands and the execution of a 30-year-old Nova Scotia Mi’kmaq woman.
Vancouver lawyer Marilyn Sandford claims former Conservative Justice Minister Rob Nicholson agreed in 2010 to a U.S. request and secretly waived a breach of the extradition treaty to allow Graham to face state prosecution for the slaying of Anna Mae Pictou Aquash.
“(Graham) claims that the decision violated principles of procedural fairness, his Aboriginal rights, and/or his rights under the Charter,” the application stated.
“The petitioner further claims that the requesting state (the U.S.) breached his Charter rights, his Aboriginal rights, and principles of comity, and that the extradition process was abused by the requesting state and/or the minister. He seeks an appropriate remedy.”
American Indian Movement Anna Mae Pictou-Aquash was murdered in the U.S. in 1975.
Graham, now 63, did not see the minister’s decision until August 2011, after he was convicted in the killing of Aquash, a mother of two young daughters and a fellow AIM soldier suspected of being an FBI informant.
The court filing late Monday was triggered by a U.S. ruling last year that concluded Graham was seeking relief for the alleged injustice of his trial in state court in the wrong forum, in the wrong country.
The Eighth Circuit Appeal Court said it did not have jurisdiction to review the minister’s decision and that Graham must seek a remedy in Canada.
He wants disclosure of the reasons for the waiver and records of the discussions between the two governments.
The reopening of the case pulls a scab off an old and deep Canadian legal wound — the decision in Dec. 1976 to extradite AIM leader Leonard Peltier based on evidence fabricated or pressured out of witnesses.
Incarcerated in Florida, Peltier was convicted in 1977 of the first-degree murder of FBI agents during a 1975 shootout following the notorious AIM occupation at the site of the U.S. Seventh Cavalry’s 1890 massacre of Oglala Lakota Sioux on the Pine Ridge Reservation.
The 75-year-old maintains he did not kill the agents and his case remains a cause celebre.
Former U.S. Attorney General Ramsey Clark represented Peltier pro bono, insisting his trial was rigged. Amnesty International called it unfair. There were numerous appeals and broad support for the AIM leader — Mikhail Gorbachev, Nelson Mandela, the Dalai Lama, Rage Against the Machine and myriad others.
Peltier was nominated seven times for the Nobel Peace Prize.
The Hollywood film Thunderheart was loosely based on his case and earlier persecution of the 19th century Sioux Ghost Dancers who were scapegoated for provoking the original atrocity. Robert Redford narrated a 1993 documentary, Incident at Oglala: The Leonard Peltier Story.
Warren Allmand, solicitor general at the time, said the FBI submitted false information to support the extradition and Assembly of First Nations national chiefs have regularly called for Peltier’s release.
Aquash was shot in the back of the head and her body dumped in a remote ravine in 1976 because she reputedly heard Peltier confess to killing the agents.
Graham’s proceedings promise to be Peltier Redux.
The alleged extradition deal between the two governments could also impact the controversial proceedings against Meng Wanzhou.
Charges of political interference already have been raised in that case by the Chinese Huawei executive.
As part of the evidence he was railroaded, Graham’s lawyers point to two 1998 assessments of the case against him, including one by U.S. Attorney Karen Schreier.
Her office was not pursuing charges against Graham, the letter explained because he could not be prosecuted under U.S. federal law — neither he nor Aquash were “American Indians” so the federal justice department lacked jurisdiction.
“The charges in federal court required, however, that the Petitioner be an ‘Indian’ within the meaning of U.S. law,” the judicial review application said. “He was found by the U.S. Courts not to meet that definition as he was of Canadian Aboriginal status, a fact known to the U.S. authorities long prior to his extradition.”
Born in Whitehorse, Graham is a member of the Southern Tutchone Champagne and Aishihik First Nations.
“Another potential downside to federal prosecution of the case is that it may be seen as a coverup,” Schreier’s 1998 letter added.
“Over the years, numerous individuals have alleged that the victim was either killed by the FBI or was killed as a result of FBI actions. Prosecution of members of the American Indian Movement for the homicide could be seen as an effort on the part of the federal government to hide the role of the FBI in Aquash’s death.”
By one count, more than 400 arrests and 275 indictments followed the occupation as Washington hunted down the members of the Red Power group modelled on the Black Panthers.
Arlo Looking Cloud was convicted in 2004 and sentenced to life imprisonment in the slaying of Anna Mae Pictou-Aquash.
At the turn of the century, however, new information came forward that led to indictments for Aquash’s slaying against Arlo Looking Cloud, another AIM comrade, and Graham.
Looking Cloud was convicted in 2004 and sentenced to life imprisonment.
Graham was arrested in Vancouver on Dec. 1, 2003, but released on strict conditions while he waged a high-profile battle against extradition.
Justice Elizabeth Bennett ultimately ordered Graham handed over on Feb. 21, 2005 in spite of having identical concerns about the evidence against him as those raised in the Peltier case.
His appeal was dismissed and Graham was returned to the U.S. on Dec. 6, 2007.
After two years of vainly trying to proceed in federal court, American prosecutors came back to Canada and asked Ottawa to agree to allow Graham to be tried in state court.
On Feb. 2, 2010, Nicholson waived any objection to the treaty violation and allegedly told the Americans to keep the decision from Graham.
Graham’s lawyer claims that he was not provided with an opportunity to make submissions and no Canadian Court assessed whether the new charge met the test for committal under the Extradition Act.
“The Requesting State did not have the consent of Canada to charge the Petitioner with the new felony murder charges,” the application claimed.
“Felony murder is akin to the former Canadian offence of constructive murder, which had been struck down in Canada as unconstitutional.”
This would have provided a compelling basis for submissions to the minister that surrender should not occur, the petition added.
On Dec. 10, 2010, a jury acquitted Graham of premeditated murder but convicted him of felony murder and he was sentenced to life imprisonment without parole.
His conviction was confirmed on appeal.
Once he learned of Nicholson’s waiver, Graham asked the U.S. Court of Appeals for the Eighth Circuit to review the case claiming the state lacked jurisdiction over him.
The three-judge panel agreed “felony murder” was not in the extradition request.