The Associated Press. October 3, 2008 at 4:03 PM EDT

SIOUX FALLS, S.D. — U.S. prosecutors filed a new complaint Friday  against a Vancouver man less than two hours after a judge dismissed the  indictment in the slaying of a Canadian Mi’kmaq woman 32 years ago. John Graham was scheduled to stand trial Monday in Rapid City on a  charge of first-degree murder for the 1975 shooting death of Anna Mae Aquash on the Pine Ridge Indian Reservation when both were affiliated
with the American Indian Movement. The ruling means Monday’s trial will be called off but the case will  proceed under a new complaint and will likely go before grand jurors again.

Mr. Graham is now charged with three alternative counts of first-degree  murder for committing and aiding and abetting others in the killing of Ms. Aquash on or about Dec. 12, 1975, near Wanblee, according to a news release from U.S. Attorney Marty Jackley.

Mr. Graham is from the Tsimshian tribe in the Yukon and for four years fought his return to South Dakota. He was extradited in December after the Supreme Court of Canada refused to review his case.

Ms. Aquash was a member of the Mi’kmaq Tribe. Her family had her remains exhumed from an Oglala grave in 2004 and reburied in her native Nova Scotia.

Judge Lawrence Piersol filed his response Friday to a request from Mr. Graham’s lawyer, John Murphy, that the indictment be dismissed on grounds the United States didn’t have jurisdiction.

Mr. Graham and Ms. Aquash were Canadian citizens and members of Canadian tribes, but the indictment doesn’t show that either is a member of a federally recognized American Indian tribe, which the law requires, he argued.

Mr. Jackley and Assistant U.S. Attorney Bob Mandel argued at a hearing Thursday that the indictment was sufficient because the other man indicted and already convicted, Arlo Looking Cloud, does fit the definition of Indian.

Mr. Looking Cloud is an Oglala Lakota originally from Pine Ridge. The indictment would allow jurors to find that Mr. Graham aided and abetted Mr. Looking Cloud, the prosecutors argued.

Judge Piersol rejected that.

“There is no authority for this proposition. The aiding and abetting statute is simply another means of convicting someone of the underlying substantive offence, which in this case is murder,” he wrote.

“There is no dispute that the superseding indictment fails to set forth Graham’s Indian status. An indictment must set forth the essential elements of the offence charged or it is fatally defective.”

Mr. Murphy said he had no comment on the decision or the new complaint. Mr. Jackley was unavailable to comment.

One of Aquash’s two daughters, Denise Maloney Pictou of Halifax, said earlier this week family members were preparing to travel to Rapid City for the trial. She said Friday they would wait to comment about the
judge’s decision.

Mr. Looking Cloud was convicted in 2004 and sentenced to a mandatory life prison term but could qualify for parole.

Apparently he was ready to testify at Mr. Graham’s trial.

Mr. Looking Cloud was at a Louisiana prison but his status with the federal Bureau of Prisons indicates he’s “in status” and he’s currently listed as an inmate in a western South Dakota jail.

A third AIM member, Richard Marshall, is scheduled to stand trial in February in Sioux Falls on a charge of aiding and abetting Ms. Aquash’s murder.

Witnesses at Mr. Looking Cloud’s trial said he, Mr. Graham and another AIM member, Theda Clarke, drove Ms. Aquash from Denver and that Mr. Graham shot Ms. Aquash in the Badlands as she begged for her life.

Ms. Clarke, who lives in a nursing home in western Nebraska, has not been charged.

Mr. Graham has denied killing Ms. Aquash but acknowledges being in the car from Denver.

Some speculated Ms. Aquash was killed by AIM members because she knew some of them were government spies, while others said she was executed because she herself was an informant. Federal authorities have said Ms. Aquash was not an informant and they had nothing to do with her death.

Ms. Aquash, 30, was among the Indian militants who occupied the village of Wounded Knee in a 71-day standoff with federal authorities in 1973 that included an exchange of gunfire with agents who surrounded the village.