Yukoner John Graham was extradited to the United States on false information and there’s documents to prove it, his lawyer told a South Dakota court late last month.
Graham, a member of the Champagne/Aishihik First Nations, was extradited on the basis he could be charged for murder as an American Indian, but documents kept at the Denver Police station prove the US Department of Justice has known since 1998 that it could not prosecute a Canadian aboriginal person, and Graham in particular, according to a statement made by his lawyer John Murphy on March 22.
The two department officials who wrote the memo on the immunity of Canadian First Nations from being treated as American Indians still work for the department, says the statement.
And the US may have tricked Canadian officials by never mentioning that fact when they requested an extradition three years ago.
“It is apparent that the government’s attorneys have been manipulating the system at Graham’s expense for years,” says Murphy’s statement.
The possibility the US knew Graham could not be prosecuted is damning.
US Prosecutors dropped the federal charges in February because Graham could not be considered an American Indian, they said at the time. But then Graham had already been hit with murder charges from the state of South Dakota after he was extradited.
If the department knew they would eventually lose the case, it means they convinced Canada to release one of its citizens on a false premise, and they planned to only hit him with state charges all along.
“It is counsel’s information and belief that the government never disclosed these issues to the Canadian minister of Justice when seeking Graham’s extradition in 2003,”says the statement.
There is a government memo in what’s known as the “Aquash Box,” named after Annie May Aquash, who Graham is accused of murdering in 1975. That letter was kept from Canadian officials when the extradition request was made, said Murphy.
In it, Dennis Holmes, assistant US attorney for the District of South Dakota, tells Robert Whitley, chief deputy district attorney from Denver, why Canadian First Nations can’t be prosecuted as American Indians.
Both attorneys were working on the Aquash case at the time.
The box was kept at the Denver Police Station and its contents were disclosed to the defense and the prosecution when the federal charges were dropped two months ago.
“The difficulty in proceeding under either of these two statures 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,” wrote Holmes.
“A United States Court in the State of Washington dismissed a criminal indictment brought against a Canadian Indian in 1999, and the solicitor general determined that no appeal should be taken from that matter,” he wrote.
After Graham’s indictment, federal prosecutors never told Graham about this memo and it’s unlikely Canada would have granted an extradition if it had known the case was bunk.
The ministerial decision to extradite Graham is privileged and cannot be revealed to the public. But documents filed in relation to his extradition can be accessed through a federal Access to Information request, which the News is currently compiling.
The charges dropped in February were dismissed without prejudice, which means new charges can be brought against the person charged. Murphy’s statements are part of an application to have the federal charges dismissed with prejudice, which would ensure no new federal charges would arise.
Graham still faces the state charges.
A message left with Carole Saindoin, spokesperson with the Canadian Department of Justice, was not returned before press time.
Contact James Munson at jamesm@yukon-news.com