The American lawyer representing a former East Vancouver resident accused of murder believes his client’s 2007 extradition to the U.S. was based on “bogus federal charges”.

John Murphy told the Straight that new information related to the case of John Graham makes it “hard to imagine” the Canadian government would have sent the Yukon-born First Nations man across the border “had the U.S. told them all along they [the U.S.] had no jurisdiction”. Graham was wanted by U.S. authorities for the murder of Canadian Native activist Anna Mae Aquash, whose body was found in a ravine in South Dakota in 1976.

“How could Canada extradite him in good faith if they had been told by the U.S. that, five years before the request was made, the U.S. had already determined that John was not subject to federal prosecution?” Murphy said by phone from Rapid City, South Dakota. “So that leads me to believe Canada was never told anything.”

Graham was set to face federal charges of first-degree murder in February, only to have the federal prosecutors drop the charges two weeks before the trial was scheduled to begin. He now awaits a state murder trial set for July 6.

“And just so you understand, the reason why they dismissed it right on the eve of trial is, had we gone to trial, and as soon as the jury is empanelled, if then the judge dismissed the case, double jeopardy would prevent them from ever prosecuting this case again,” Murphy said. “Imagine this: we got a letter two weeks after the case was dismissed, and it [the new information] was in some documents that at first the government claimed didn’t exist.”

In a March 22 motion filed with the U.S. district court for South Dakota, Murphy quotes a 1998 letter, written on Department of Justice letterhead, from the U.S. attorney’s office in South Dakota to the district attorney’s office in Denver, Colorado. In the letter, Dennis Holmes, then assistant U.S. attorney, states that Graham, as a Canadian Indian, does not fall under the jurisdiction of two federal statutes governing the prosecution of offences committed in “Indian Country”. Aquash’s body was found on the Pine Ridge Reservation.

“The difficulty in proceeding under either of these two statutes arises from the fact that generally the Justice Department has taken the position that Canadian Indians may not be considered ”˜Indians’ within the meaning of the federal criminal statutes,” Holmes writes.

Holmes also states: “Criminal charges cannot be brought under [section 1153 of the U.S. Code] against the Canadian Indian.”

Murphy had this to say about the Canadian government: “Legally, are they asleep at the wheel up there, or do they even care?”

Neither Indian Affairs Minister Chuck Strahl nor Attorney General Rob Nicholson responded to interview requests.

Graham now faces three separate charges at the state level. One is premeditated first-degree murder; the other two are “first-degree felony murder”, one involving kidnapping and the other rape, according to Murphy.

Murphy said he is asking the court to “turn over the documents that supposedly authorized—from the Canadian government—that authorized this prosecution. We haven’t received anything.”

Graham has remained in the same holding facility in South Dakota since December 2007, according to Murphy, and his health has deteriorated. Graham has always maintained that he is innocent.