(1)
Upon issuance of a Tribal court arrest warrant, a peace officer in the state may
apprehend the person identified in the Tribal warrant if the peace officer verifies
the validity of the warrant and confirms that the warrant permits extradition. The
law enforcement agency in the arresting jurisdiction may surrender a person
arrested pursuant to a Tribal arrest warrant to the law enforcement agency of the
Tribal jurisdiction if the law enforcement agency of the Tribal jurisdiction is
available to take custody of the person. If the law enforcement agency of the Tribal
jurisdiction is not available to take custody of the person, the law enforcement
agency in the arresting jurisdiction shall hold the person in the county detention
facility of the law enforcement agency in the arresting jurisdiction. If the arrest
warrant is non-extraditable or if the bond on the arrest warrant is a personal
recognizance bond, the law enforcement agency in the arresting jurisdiction must
immediately release the person from state custody.
(2) Court process. (a) Courts shall follow the process outlined in this
subsection (2) for extradition cases arising from a Tribal court order.
(b) If a person is arrested on a Tribal court arrest warrant and the law
enforcement agency in the arresting jurisdiction does not surrender the person
immediately to the law enforcement agency of the Tribal jurisdiction as described
in subsection (1) of this section, a peace officer of the law enforcement agency with
custody of the person shall bring the person before the nearest court in the time
frame described in sections 13-10-111.5 (5) and 16-4-102 (2)(a)(II). The court shall
appoint the office of state public defender to the person if the person is eligible and
inform the person of the existence of the arrest warrant, the nature of the arrest
warrant, and the person's rights, including the right to counsel, the right to remain
silent, the right to contest the legality of the extradition request, and the right to
waive extradition and knowingly, intelligently, and voluntarily agree to return to the
Tribal jurisdiction.
(c) (I) The arrested person identified in subsection (2)(b) of this section may,
in the presence of the court, sign a waiver of extradition verifying that the person
consents to the return to the Tribal jurisdiction. Before the person signs the waiver
of extradition, the court shall inform the person of the person's right to test the
legality of the extradition request.
(II) If a person requests a hearing to test the legality of the extradition
request, the court shall hold the hearing within seven days after the person facing
extradition requests the hearing unless the court grants the person more time to
prepare for the hearing. The court shall not place a burden on the state at the
hearing. The court shall not consider the person's guilt or innocence during the
hearing. At the hearing, the court shall order the person extradited unless the
person challenging the extradition shows by a preponderance of the evidence that:
(A) The law enforcement agency in the arresting jurisdiction did not verify
the validity of the arrest warrant and did not confirm that the warrant permitted
extradition prior to the person's arrest, resulting in an unconstitutional illegal
seizure pursuant to the state constitution or the United States constitution;
(B) Extradition of the person would violate the state constitution or the
United States constitution; or
(C) The person appearing before the court is not the person named in the
arrest warrant.
(d) (I) Eligibility for bail. Unless the Tribal court with jurisdiction over the
arrest warrant requests the person be held without bail, the court may set bail on
the extradition case. If the court releases the person on bail, the court shall also set
a review hearing date and a deadline for the person to travel to the Tribal court's
jurisdiction and answer the arrest warrant. In setting the amount and conditions of
bail, the court shall consider the conditions necessary to ensure the person's
appearance before the court and to consider the community's safety. When setting
bail, the court shall consider the amount of bail on the Tribal court arrest warrant.
(II) If the court receives notice from the law enforcement agency with
custody of the person or the district attorney on or before the review hearing from
the Tribal court that the person has appeared before the Tribal court, the court
shall dismiss the extradition case.
(III) If the person appears before the court but has not appeared before the
Tribal court as ordered, upon notice from the law enforcement agency with custody
of the person or the district attorney, the court shall revoke the extradition bond
and order the person extradited.
(IV) If the person fails to appear before the court, the court shall issue an
arrest warrant and order forfeiture of the extradition bond as set forth in section 16-4-111 (3).
(3) Extradition process. (a) The court shall give the extradition orders to the
person, the person's counsel, the prosecution, the law enforcement agency with
custody of the person, the Tribal court, and the Tribal law enforcement agency.
(b) If the court determines that the person must be held without bail pending
extradition, the court shall order the law enforcement agency with custody of the
person to notify the requesting Tribal court when any other local holds are resolved
and the person may be transported to the Tribal court's jurisdiction.
(c) When the law enforcement agency with custody of the person notifies the
Tribal jurisdiction that a person is available for extradition, the law enforcement
agency shall notify the court of the date and time of the notice.
(d) (I) Upon receiving a valid order from a court authorizing the extradition of
the person and notification from the law enforcement agency with custody of the
person that there are no local holds preventing transport, the Tribe shall arrange
transport of the person to the Tribe's detention facility without undue delay unless
otherwise agreed upon by the law enforcement agency with custody of the person
and the law enforcement authority of the Tribal jurisdiction. The Tribe shall take
custody of the person within seventy-two hours after receipt of the extradition
order and notice that the person is available for transport.
(II) Notwithstanding subsection (3)(d)(I) of this section to the contrary, if a
Tribe is not able to take custody of the person within seventy-two hours after
receipt of the extradition order and notice that the person is available for transport,
the court may, upon a finding of good cause, adjust the time frame as necessary for
the Tribe to take custody of the person.
(e) If a court orders extradition and the court receives information that the
Tribal jurisdiction has custody of the person or the person has appeared before the
Tribal court, the court shall dismiss the extradition case and order the extradition
bond released.
(f) Except for a court's finding of good cause to hold a person longer than
seventy-two hours pursuant to subsection (3)(d)(II) of this section, the law
enforcement agency with custody of the person shall release the person if the Tribe
has not taken custody of the person within the time frame set forth in subsection
(3)(d)(I) of this section. A person who has been held in excess of the time limit set
forth in subsection (3)(d)(I) of this section may file a motion for release, and upon
receipt of the motion, the court shall conduct an immediate hearing. If the court
determines at the hearing that the person has been held in excess of the time limit
set forth in subsection (3)(d)(I) of this section, the court shall order the person's
immediate release.