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Eid: Federal actions speak louder than words

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Too many federal officials say they honor the sovereignty of Indian tribes and nations, but abandon that respect when the rubber meets the road. Such was unfortunately the case when federal authorities removed an alleged murderer from a Navajo Nation jail Nov. 9 after deliberately bypassing the nation’s courts.

The crime is horrifying. The defendant, 18-year-old Reehahlio Carroll, is accused of brutally murdering a nun – Sister Marguerite Bartz, 64 – on the Navajo Nation, apparently in a botched burglary attempt shortly on or around Halloween. New Mexico’s U.S. Attorney’s Office has charged Carroll with first-degree murder under the federal Major Crimes Act because the crime allegedly occurred on Indian lands and was committed by a Native American.

No question: The federal government has jurisdiction in this murder case. I’ve worked previously with New Mexico U.S. Attorney Greg Fouratt, and hold him and his office in high regard. And based on what’s been publicly reported, Carroll – who like all criminal defendants is innocent until proven guilty – can and should stand trial in federal court for this terrible crime.

The problem is not the murder charge, but the way in which federal authorities involved intentionally avoided the Navajo Nation’s criminal laws and justice system – as if tribal sovereignty matters only in theory and not in practice.

In this case, Carroll was already in the Navajo Nation’s custody for allegedly violating Navajo traffic laws. Once the Navajo Nation’s new chief prosecutor – Bernadine Martin, a respected former deputy district attorney from Gallup who has successfully tried numerous homicide cases – learned that Carroll was also wanted in connection with a federal murder investigation, Martin did what any veteran prosecutor would have done. She asked federal officials to go first to Navajo court and get permission to transfer Carroll from Navajo to federal custody, a process known as extradition.

This is no trivial matter. The United States Constitution expressly recognizes not two, but three sources of governmental power: The federal government, state governments, and the governments of Indian tribes and nations. The U.S. Supreme Court has ruled that each of these governments is empowered to make its own laws and be governed by them. While federal law is supreme, state and tribal laws and legal institutions must be respected.

Like the federal government and all states, the Navajo Nation has its own extradition laws and procedures. It would be unthinkable for federal agents to simply show up unannounced in a county jail, flash their badges, and take custody of a defendant charged with committing a crime under state law. Instead, the extradition process protects the due process rights of all citizens against arbitrary government action. It also ensures that the state’s sovereignty – especially its interest in enforcing its own criminal laws – is respected.

Yet federal agents ignored the Navajo courts and extradition process in the Carroll case, just as they do routinely in dealing with other Navajo Nation members accused of violating federal laws. FBI agents attended Carroll’s bail hearing in Navajo Nation court Nov. 9, but rather than ask permission from that court to take Carroll into custody, the agents produced handcuffs and attempted to take the defendant away.

In an act of professional courage, Martin stood her ground and refused to turn Carroll over. While accused of “playing hardball” by a local television station, Martin was merely honoring her oath to enforce the Navajo Nation’s laws, just as any conscientious state prosecutor would have done in a similar circumstance. The hardball was really played by federal officials, who – even after Martin’s understandable insistence that tribal sovereignty be respected – refused to follow the nation’s extradition process and instead asked a federal court to issue a writ of habeas corpus ordering Carroll’s release into federal custody.

Navajo law requires that in order to extradite a criminal defendant, the jurisdiction seeking custody must first present an arrest or “bench” warrant and supporting affidavit along with a copy of the criminal complaint. Even after Martin took her stand, federal officials still produced only a bench warrant. While complying with the nation’s extradition procedure would have been straightforward, federal officials left Martin no choice but to back down or to go to the considerable time and expense of intervening a full-blown habeas corpus proceeding before a U.S. magistrate judge in Albuquerque.

Martin reminded the magistrate that respect for tribal sovereignty on the part of federal officials isn’t optional. “The Navajo Nation did not get notice of any of the proceedings in federal court,” she said, “nor did we get any petitions or any other paperwork in this matter.” Martin was “repulsed by the homicidal acts alleged to have been committed by the accused” and urged the court to punish Carroll “to the maximum extent permitted under federal law” if convicted. However, Martin also correctly noted that had any Navajo tribal member attempted to take a criminal defendant into custody without first filing the proper legal paperwork, he “would certainly be placed into federal custody himself.”

While unsuccessful for now, Martin’s courageous stand ought to remind federal officials that their actions speak louder than words.

Troy A. Eid is an attorney in private law practice with the firm of Greenberg Traurig LLP in Denver. Eid served as the United States Attorney for the District of Colorado from 2006 until earlier this year. He is a member of the Navajo Nation Bar Association.