Extradition from Canada to the United States : John Graham

John Graham, a Canadian man accused of killing American Indian Movement (AIM) activist Anna Mae Pictou Aquash in 1975, will be extradited to the United States to stand trial.^[1] The Supreme Court of Canada has dismissed an appeal from Graham, a former AIM member facing U.S. murder charges in relation to Aquash’s death on the Pine Ridge Indian Reservation.^[2]

Marty Jackley, U.S. attorney for South Dakota, said that the Canadian Supreme Court was Graham’s last hope of avoiding return to the U.S. to stand trial, and that he will be brought back soon.^[2] Greg DelBigio, Graham's federal criminal defense lawyer, could not be reached immediately for comment.^[2] Graham himself maintains that he is innocent.^[3]

The American Indian Movement is an activist group that has protested the federal government's treatment of Indians and demanded that the government honor its treaties with tribes.^[4] In 1972, the AIM gained attention when it seized Bureau of Indian Affairs headquarters in Washington.^[5] The group, including Aquash at the time, occupied Wounded Knee on the Pine Ridge Indian Reservation in 1973, during a 71-day standoff that included the exchange of gunfire with federal agents who surrounded the village.^[6]

The death of Aquash, a member of Mi'kmaq Tribe of Canada, occurred amid a series of mid-1970's clashes between federal agents and AIM members.^[7] American prosecutors said AIM leaders ordered Aquash's death late in 1975 over suspicion that she was a government informant.^[8] AIM leaders have since denied such accusations and instead blame the U.S. government for her death.^[9]

The other man charged in the death of Aquash, Fritz Arlo Looking Cloud, was convicted in 2004 in federal court of first-degree murder committed in the perpetration of a kidnapping.^[10] He received a mandatory sentence of life imprisonment, and the conviction was upheld on appeal.^[11] Witnesses at Looking Cloud's trial testified that Graham shot Aquash.^[12]

A Canadian judge ruled in 2005 that Graham should be extradited, a decision which was affirmed by the Canadian minister of justice in 2006.^[13]

Extradition from Canada to the United States

Extradition between Canada and the United States is governed by the 1976 treaty between the two nations.^[14] This treaty has been amended by a supplementary treaty signed in 1988 and enacted in 1991, which replaced the typical "laundry list" of extraditable offenses common to older treaties with the more contemporary "dual criminality clause."^[15] Now, an extraditable offense is defined as "an offense punishable by the laws of both Contracting Parties by imprisonment or other form of detention for a term exceeding one year or any greater punishment."^[16]

Article 6 of the treaty is death penalty clause, stating that "when the offense for which extradition is requested is punishable by death under the laws of the requesting State and the laws of the requested State do not permit such punishment for that offense, extradition may be refused unless the requesting State provides such assurances as the requested State considers sufficient that the death penalty shall not be imposed, or, if imposed, shall not be executed."^[17]

Canada does not have capital punishment, whereas the United States does. Therefore, Canada has the right to decline extradition of suspects facing the death penalty abroad, but as we have discussed before, the Canadian government is becoming increasingly more hesitant to do so.

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^[1] Carson Walker, Man to be Extradited for '75 Death, Associated Press Newswire, December 6, 2007, available at LEXIS, News Library, Wire News Services.
^[2] Id.
^[3] Id.
^[4] Id.
^[5] Id.
^[6] Id.
^[7] Id.
^[8] Id.
^[9] Id.
^[10] Id.
^[11] Id.
^[12] Id.
^[13] Id.
^[14] Treaty on Extradition between the United States of America and Canada, U.S.-Can., Mar. 22, 1976, 1971 U.S.T. LEXIS 226.
^[15] Protocol Amending the Extradition Treaty with Canada, U.S.-Can., Nov. 26, 1991, 1988 U.S.T. LEXIS 182.
^[16] Id. at Art. 2.
^[17] Id. at Art. 6.