See 3 CCAR 01 (1995)

OVERTURNED IN PART

See 3 CCAR 01 (1995)

William COLEMAN, Appellant,

vs.

COLVILLE CONFEDERATED TRIBES, Appellee.

Case No. AP93-15405, 1 CTCR 74, 20 ILR 6106

2 CCAR 1

[Stephen L. Palmberg, Attorney at Law, Grand Coulee WA, counsel for Appellant.

Lin Sonnenberg, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.]

Argued July 9, 1993. Decided July 22, 1993.

Before Chief Judge Bonga, Judge Chenois and Judge Collins

BONGA, C.J.

This matter came before the Appellate Panel of Chief Judge David Bonga, Judge Edythe Chenois and

Judge Brian Collins for oral arguments on July 9, 1993. Present at the hearing was Tribal Prosecutor Lin

Sonnenberg. Neither the appellant nor his attorney were present. The Panel decided to proceed as the file was

sufficiently complete to reach a decision to uphold the ruling of the Trial Court.

DISCUSSION

I. Defendant’s Right to Speedy Trial

A defendant’s Time of Trial is governed by Colville Tribal Code (CTC) 2.4.03. As to Speedy Trial CTC

2.4.03(d) states:

Provided, a defendant not released from jail pending trial shall be brought to

trial not later than 60 days after the date of arraignment.

The Panel believes that the 60 day rule was adopted to shorten the period for bringing defendants to trial

who are either unable to post bail or are held without bail. The 60 day rules reflects a sense of urgency to promptly

bring such defendants to trial in order to keep them from unnecessarily languishing in jail pending trial. Thus, in

cases where the defendant has no choice but to remain in jail, either due to inability to post bail or because he is

being held without bail, the 60 day rule ensures that his rights will be promptly adjudicated. However, the Panel

does not believe this is an inflexible rule. When a defendant chooses to remain in jail in order to receive credit for

time served on an unrelated matter, the same urgency to rapidly bring the matter to trial is lacking. In such cases, we

believe the defendant has knowingly and voluntarily waived his rights to be brought to trial within 60 days under

CTC 2.4.03(d).

In this case the defendant was arraigned on September 28, 1992 with his trial date being December 10,

1992. The elapsed time between Defendant’s arraignment and trial was 73 days. It is the defendant’s position that he

should have been brought to trial within 60 days of September 28, 1992.

The Appellate Panel finds from the record that the defendant was incarcerated at the time of his

arraignment on unrelated charges. The defendant explicitly stated at the arraignment that he desired to remain in jail,

so that the incarceration period would count against the unrelated jail sentence. It is the position of the Panel that

following the arraignment the 60 day rule was not applicable and that Defendant’s trial had to be held within 90

days of his arraignment which did happen. Therefore, the Panel holds that the defendant waived his right to Speedy

Trial under CTC 2.4.03(d) by choosing to remain in jail.

It is the belief of the Panel that if the defendant had been in jail due to an inability to post bail the

defendant’s interpretation of the 60 day rule would have been correct in this case.

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II. Right to a Jury Trial

The defendant at his arraignment requested a jury trial which was scheduled for December 10, 1992. The

defendant’s counsel on November 23, 1992 confirmed the December 10, 1992 jury trial. On the date of the

scheduled jury trial the defendant requested and was granted a trial continuance until January 28, 1993.

The laws for the Colville Confederated Tribes at CTC 4.1.05 mandate that when a jury trial is scheduled,

the defendant must confirm that jury trial no later than ten (10) days prior to the date of the jury trial. Without a

confirmation the law states that there is a waiver of the right to trial by jury and the trial becomes a bench trial.

The Court record indicates that the defendant did not confirm the January 28, 1993 jury trial under the 10day rule. As a result the January 28, 1993 hearing was a bench trial. The Appellate Panel finds that the defendant

failed to abide by the laws of the Colville Confederated Tribes by not confirming the January 28,1993 hearing as a

jury trial.

Furthermore, the record indicates that the trial judge gave the defendant a chance to ask for a continuance

so that a jury trial could be scheduled. The defendant declined to ask for the continuance. The Panel therefore

believes that the defendant knowingly waived his right to a jury trial by refusing to ask for the continuance that

would allow a jury trial to be scheduled for his hearing.

The defendant’s Appeal is hereby Denied.

David L. ST. PETER, Appellant,

vs.

COLVILLE CONFEDERATED TRIBES, Appellee.

Case Numbers AP93-15400, AP93-15507, AP93-15508,

AP93-15509 and AP93-15510, 1 CTCR 75, 20 ILR 6108

2 CCAR 2

[Frank LaFountaine, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for

Appellant.

Tim Liesenfelder, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel

for Appellee.

Trial Court Case Numbers 92-15400, 92-15507 to 92-15510]

Arguments heard May 28, 1993. Decided September 28, 1993.

Before Chief Judge Collins, Judge Baker and Judge Bonga

COLLINS, C.J.

This matter was brought before the Appellate Panel seeking review of five maximum sentences

imposed by the Trial Court in the above cases. In her Memorandum Opinion; Judgment And Sentence,

dated February 2, 1993, Judge Elizabeth Fry imposed maximum jail sentences for two counts of

Disorderly Conduct, Assault, Trespass To Buildings, and Resisting Arrest, and specified that each

sentence would run consecutively to any other incarceration.

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The appellant alleges that the Trial Court erred by imposing excessive sentences which are

arbitrary and capricious and constitute cruel and unusual punishment, and claims his rights were violated

under the Indian Civil Rights Act, 25 U.S.C. Sections 1301-1303 (ICRA) and the Colville Tribal Civil

Rights Act, Title 56.01 et seq. (CTCRA). Appellant raises various issues in support of his Assignment Of

Error concerning sentencing by the Trial Court. These issues will be addressed by the Panel.

The Appellate Panel first observes that the myriad of issues raised on this appeal were not fully

researched or briefed by Appellant's counsel. Consequently, the Judges have expended considerable time

and effort reviewing decisional law and secondary authority bearing on the issues raised on appeal. Many

matters addressed herein are vital to the Colville Confederated Tribes and issues of first impression for

the Tribal Court. The Panel believes that when such constitutional issues are raised, Appellant's counsel

must engage in thorough analysis and briefing during the course of the review process.

I.

The appellant first contends that because the term "sentence" is not defined in the Colville Tribal

Code, the term must be given meaning under the laws of the State of Washington. The appellant urges the

Court to adopt RCW 9.94A.400 in order to give meaning to the term. The term "sentence" is not defined

in the Tribes' sentencing statute, CTC 2.6.07 and the Panel has not found a definition of the term

elsewhere in the Tribal Code. The Panel also has not found a definition for "sentence" in the State

sentencing statute, RCW 9.94A.400.

The Colville Tribal Code provides that the Principles of Construction at CTC 1.1.07(e) are to be

followed when a term is not clear on its face or in the context of the Code.

"Whenever the meaning of a term used in this Code is not clear on its

face or in the context of the Code, such term shall have the meaning

given to it by the laws of the State of Washington, unless such meaning

would undermine the underlying principles and purposes of this Code."

CTC 1.1.07(e).

The question Appellant raises is whether the term "sentence" used in CTC 2.6.07 means fine, jail

term, or both. Because the appellant contends that the term, as used in that section, is subject to more than

one interpretation, we refer to the pertinent sections of the Code and other authority for guidance.

The Principles of Construction direct the Court to follow the plain meaning of terms found in the

Code.

"Words shall be given their plain meaning and technical words shall be

given their usually understood meaning where no other meaning is

specified."

CTC 1.1.07(b). Moreover, the Principles of Construction also direct the Court to "[c]onstrue the Code as a

whole to give effect to all of its parts in a logical, consistent manner." CTC 1.1.07(d).

The Court will look to the laws of Washington only when the meaning of a term is unclear on its

face or in context of the Code. Further, the rules of construction instruct the Court to use the definition of

a term given by the State only if such meaning would not undermine the underlying principles and

purposes of the Code. CTC 1.1.07(e). In addition to the direction provided by the Principles of

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Construction, the Court Rules provide that we may look to other authority for an appropriate definition.

CTC 4.1.11.

The Panel believes that the term "sentence", both by its facial definition and in the context of

2.6.07, unambiguously means punishment. In that regard, the Plain Meaning Rule in CTC 1.1.07(b) is

controlling. It is equally clear that the term "sentence" used in CTC 2.6.07 refers to the punishment to be

imposed by the Court in a criminal matter following a defendant's conviction of violating a criminal

statute. The remaining question is whether the term refers only to confinement in jail.

In reviewing Chapter 5.7 Penalties of the Code, usage of the term "sentenced" indicates that the

Tribal Council intended the term to include "[i]mprisonment..., or a fine..., or both imprisonment and a

fine." CTC 5.7.01, 5.7.02, 5.7.03. When CTC 2.6.07 is read together with CTC 5.7.01 et seq., as provided

by the Rules of Construction, 1.1.07(d), we believe the meaning of the term "sentence" includes

imprisonment, a fine, or both.

Even if we assume that the term "sentence" is not sufficiently clear by definition or usage in the

Code, we note that our interpretation of the term is the same as under Washington and Federal decisional

law. The Washington courts have defined "sentence" in State v. King, 18 Wash.2d 747, 140 P.2d 283

(1943). In that case Washington Supreme stated as follows:

"In its technical legal signification "sentence" is ordinarily synonymous

with "judgment" and denotes the action of a court of criminal jurisdiction

formally declaring to the accused the legal consequences of the guilt

which he has confessed or of which he has been convicted."

18 Wash.2d at 753, citing 24 C.J.S. 15 Criminal Law, Sec. 1556. Further, the term "judgment" has been

defined by the Washington courts as a "determination or sentence of the law, pronounced by a competent

judge or court, as the result of an action or proceeding instituted in such court." State v. Siglea, 196 Wash.

283, 82 P.2d 583.

The federal courts have taken a similar view. A sentence in a criminal case is the action of the

court fixing and declaring the legal consequences of predetermined guilt of a criminal offense. Barnes v.

United States, 223 F.2d 891 (5th cir. 1955), citing 24 C.J.S. Sec. 1556. In Subas v. Hudspeth, 122 F.2d 85

(10th cir. 1941) the court differentiated between usage of the term "sentence" as an active verb and as a

noun. In a legislative context, the latter denotes the punishment to be imposed on the accused by the court

as part of the judgment after conviction of a criminal offense. The punishment or penalty imposed by the

trial court must be within statutorily prescribed limits authorized by legislative branch. United States v.

Elkin, 731F.2d 1005 (1985), cert. denied 469 U.S. 822, 105 S.Ct. 97, 83 L.Ed.2d 43. Therefore, it is the

language of the statute which prescribes the punishment or penalty which may be imposed at sentencing.

Further, the statute may provide punishment consisting of a fine, imprisonment, or both.

The legislative branch of government may create a broad sentencing range within which a judge

may fix a particular sentence. United States v. Butler, 763 F.2d 11. Within the sentencing range

prescribed by the legislative body, the judge has broad discretion in determining the sentence. United

States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592.

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Although the Panel considers state and federal decisional law to be only advisory, we find that the

definition of "sentence" used by those courts is the same as under Tribal law. Thus, whether or not the

term "sentence" is subject to construction, the Court finds that "sentence" means an essential part of a

judgment in a criminal case which involves the legal consequences of a confession of guilt or a finding of

guilt, punishment. From our reading of the Code, it is clear that the Tribal Council intended, and the Panel

holds, that "sentence" also means punishment consisting of a fine, a jail term, or both. CTC 5.7.01 et seq.

The Panel does not read CTC 1.1.07(e) to mean that the Court must adopt the Washington

sentencing statute, RCW 9.94A.400, in order to give meaning to the term. The Panel declines the

appellant's invitation to do so. Such a strained application of the Principles of Construction would

seriously undermine the principles and purpose of the Code.

II.

We next turn our attention to review of sentences imposed upon the appellant and the sentencing

procedures used by the Trial Court. Appellant contends his right to due process and right to be free from

cruel and unusual punishment were contravened under the Indian Civil Rights Act, 25 U.S.C. Sec. 1302

(7),(8) and the Colville Tribal Civil Rights Act, Title 56.02 (g),(h). Because the appellant claims a

violation of his civil rights based upon Tribal and federal statutes, our review will necessarily include

principles of Tribal and federal law. In Trial Procedure set forth in Chapter 2.6 of the Tribal Code

provides as follows:

"All accused persons shall be guaranteed all civil rights secured under

the Tribal Constitution and federal laws specifically applicable to Indian

tribal courts."

CTC 2.6.09. We interpret CTC 2.6.09 to mean that a reviewing court must apply the Tribal Constitution,

Tribal statutory and common law, and the Indian Civil Rights Act.

We will also examine principles

applied by the federal courts in sentencing review under the United States Constitution. The federal law

principles for sentencing review cited infra, are not "specifically applicable to Indian tribal courts", CTC

2.6.09, supra. They are based upon the federal constitutional standards, and not on the Tribal Constitution

or the Indian Civil Rights Act. Therefore, we consider such principles to be advisory only.

III.

The Indian Civil Rights Act, Act of April 11, 1968, P. L. 90-284, Sections 201-203, 82 Stat. 7778, codified at 25 U.S.C. Sec. 1301-1303, places limitations on the exercise of tribal criminal jurisdiction.

Those parts of ICRA which concern the instant appeal state:

"No Indian tribe in exercising powers of self-government shall-(7) require excessive bail, impose excessive fines, inflict cruel and

unusual punishments, and in no event impose for conviction of any one

offense any penalty or punishment greater than imprisonment for a term

of one year or a fine of $5,000, or both;

(8) deny to any person within its jurisdiction the equal protection of its

laws or deprive any person of liberty or property without due process of

law;"

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25 U.S.C. Sections 1302 (7), (8). We note that the Colville Tribal Civil Rights Act, CTC 56.02 (g),

closely parallels the operative language in 25 U.S.C. Sec. 1302 (7) with regard to prohibitions against

imposing excessive bail, excessive fines, or infliction of cruel and unusual punishment. CTC 56.02 (h)

appears to contain identical language to that found in 25 U.S.C. Sec. 1302 (8).

The Indian Civil Rights Act contains similar but not identical provisions as found in the Bill of

Rights. See generally, Comment, The Indian Bill Of Rights And The Constitutional Status Of Tribal

Governments, 82 Harv. L. Rev. 1343 (1969). The legislative history of the ICRA indicates congressional

intent that the Act should be read consistent with the principles of tribal self-government and cultural

autonomy. See 114 Cong. Rec. 5518, 5520 (1968), (reporting the President's message urging that ICRA

be enacted as part of a goal furthering Indian self determination). See also, Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 62-64 and n. 11-15 (examining ICRA legislative history).

Although the due process and equal protection provisions under ICRA, 25 U.S.C. Sec. 1302 (8)

are similar to corresponding constitutional principles under the Bill of Rights, they differ both in

substance and origin. The Panel reads ICRA to mean that equal protection and due process guarantees

refer to constitutional protections provided under tribal law and not federal law. Howlett v. Salish And

Kootenai Tribes, 529 F.2d 233, 237 (9th cir. 1976). This interpretation is consistent with view that

Congress, with modification, selectively incorporated certain provisions of the Bill of Rights into a

substitute bill which was enacted to protect the individual rights of Indians while fostering tribal self

government and cultural identity. Moreover, Congress did so recognizing that coextensive provisions of

tribal constitutions and the Bill of Rights would not be identically aligned, Wounded Head v. Tribal

Council Of Oglala Sioux Tribe, 507 F.2d 1079, 1082 (8th cir. 1975). See also Groundhog v. Keeler, 442

F.2d 674 (10th cir. 1971). Thus, we interpret ICRA in light of the inherent power of tribes to create and

administer a criminal justice system, Ortiz-Barraza v. United States, 512 F.2d 1176 (9th cir. 1975) and a

well established federal policy of preserving the integrity of tribal governmental structure, including the

authority of tribal courts. O'Neal v. Cheyenne River Sioux Tribe, 482 F.2d 1140, 1146 (8th cir. 1973). We

also note that federal courts have been careful to construe notions of due process and equal protection

under ICRA with due regard for historical, governmental and cultural values of Indian tribes. Tom v.

Sutton, 533 F.2d 1101, 1104, (9th cir. 1976).

We also take note that due process and equal protection guarantees applicable to tribal courts

under ICRA flow from congressional exercise of its plenary power, which, despite the United States

Supreme Court's pronouncements in Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), lack the clear

constitutional underpinnings of the Bill of Rights. See Pommersheim, Tribal State Relations: Hope For

The Future, 36 S.D. L. Rev. 239, 247-48. Instead, the origins of such plenary power, if a constitutional

source can be found, arise from the Indian Commerce Clause. United States Constitution, Article I, Sec.

8, Clause 3. In addition, the legislative history of ICRA clearly indicates that Congress did not intend to

impose full constitutional guarantees under the Bill of Rights on litigants coming before the tribal court or

to restrict the tribes beyond what was necessary to give the Act the effect Congress intended. Tom v.

Sutton, 533 F. 2d at 1103-1104. Among the goals intended by Congress in enacting ICRA were affording

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constitutional protections to litigants on one hand, and supporting tribal self government and cultural

autonomy on the other. We therefore apply due process principles under ICRA with flexibility and in a

manner contextually adapted by the Colville Confederated Tribes.

IV.

We also note that neither the Federal Rules Of Criminal Procedure nor the Federal Rules Of

Evidence have been adopted for use in the Colville Tribal Court. Therefore, the Panel will consider case

law construing F.R.Cr.P. 32 as advisory and will not apply the Federal Rules of Evidence as controlling

what evidence is admissible in the Tribal Court for sentencing purposes. The Federal Rules of Evidence

and the Federal Rules of Criminal Procedure are not federal laws which are specifically applicable to

Indian tribal courts. CTC 2.6.09, supra.

The Tribal Code expressly rejects use of common law rules of evidence, and directs the Court to

"[u]se its own discretion as to what evidence it deems necessary and relevant to the charge and the

defense." CTC 2.6.02. Further, prior to imposing sentencing, the judge is directed to allow a spokesman

or the defendant to speak on behalf of the defendant and to present any information which would help

the judge in setting punishment. 2.6.07 (emphasis added). A literal reading of 2.6.07 shows that the

only restriction on what information a spokesman or the defendant may present to the Court to consider in

sentencing is that the information be of a type which will "help the judge in setting punishment." Id.

Clearly, such information is strictly within the discretion of the sentencing judge.

The Panel has not found any provision in the Code which provides guidance as to what

information the Trial Court may consider from the prosecution in sentencing. The Panel believes that

because the Trial Court is directed to consider any information from the defense which will be helpful in

sentencing, a judge also has broad discretion in determining what information it will consider from the

prosecution for that purpose. We emphasize, however, that information which is presented to a sentencing

judge by either the prosecution or the defense does not necessarily mean that the judge relied on such

information in determining the sentence.

Because the Panel has declined to adopt the Washington sentencing statute RCW 9.94A.400 for

purposes of statutory construction, the Panel also declines to apply substantive provisions of that statute

in reviewing sentences imposed by the Tribal Court. Similarly, Washington case law relating to RCW

9.94A.400 and the Washington Constitution have no application to the questions presented in this case.

V.

The appellant alleges that the Trial Court erred by considering and relying upon misinformation

as to his criminal history at sentencing. The appellant further contends that he has a due process right to

be sentenced on the basis of accurate information. The source of the allegedly erroneous information

referred to by Appellant is a computer printout from the Federal Bureau of Investigation.

The record shows that the computer printout was used by the Colville Tribal Court Probation

Department to establish at least part of St. Peter's criminal history for the Presentence Investigation

Report (hereinafter "PSIR"). The record also shows that the trial judge at least referred to the printout

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during the sentencing hearing. However, our review of the record indicates that the trial judge, in

response to objections by appellant's counsel, disregarded state convictions reflected in the printout.

During the sentencing hearing, appellant's counsel argued that such computer printouts are

unreliable and often contain erroneous information. Appellant's counsel also argued that at least one of

the St. Peter's criminal convictions shown in the printout was in error. However, defense counsel did not

point out which state court convictions were in error or explain the error. He further argued that the PSIR

contained erroneous information since the computer printout was used, and that only certified copies of

judgments could be used to establish the appellant's criminal history for sentencing.

Appellant cites Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948) in support of his

argument that a criminal defendant has a due process right to be sentenced on the basis of accurate

information. Appellant's Opening Brief at 8. In Townsend, supra, the court acted on false assumptions as

to the defendant's criminal record which were materially untrue. The criminal case relied upon by the trial

judge to establish part of the defendant's criminal history, the defendant was denied his right to counsel

and the prosecutor misrepresented his criminal record. Two of the defendant's criminal convictions were

unconstitutional under Gideon v. Wainwriqht, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

In Gideon, the defendant also requested assistance of counsel and the trial judge indicated, "[i]t

was not the practice of the County to appoint counsel for indigent defendants except in murder and rape

cases." 372 U.S. at 338. Gideon proceeded to represent himself, was convicted, and was sentenced to

eight years in prison. The United States Supreme Court reversed Gideon's conviction stating that the right

to counsel under Amendment VI of the United States Constitution is fundamental and essential to a fair

trial. Thus, Gideon stands for the principle that, under federal law, it is unconstitutional to try a person for

a felony in state court unless he has a lawyer or affirmatively waives his right to be represented. Burgett v.

Texas, 389 U.S. 109, 114, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967).

In addition to the standards established in Townsend and Gideon, the United States Supreme

Court in United States v. Tucker, supra, held that a trial court cannot rely on unconstitutionally invalid

convictions in sentencing. In that case, the convictions impermissibly relied upon by the court involved

cases in which the defendant was neither informed of his right to counsel nor represented by counsel.

Although the sentence was reversed and the case remanded for resentencing, the court upheld the

conviction.

The cases cited above involve federal constitutional principles and cannot, without a review of

Tribal standards, be said to represent an accurate reflection of Tribal law. Although the Panel does not

adopt each principle of law set forth in Townsend, Gideon, and Tucker, we do hold that a criminal

defendant in Tribal Court has a due process right under the Indian Civil Rights Act and the Colville Tribal

Civil Rights Act not to be sentenced on the basis of prior criminal convictions where the defendant was

not advised of his right to counsel or was improperly denied his right to counsel. We do not believe that

the defendant is denied due process when the Trial Court considers or relies on criminal convictions in

which the defendant was simply unrepresented. We believe that principles of fundamental fairness

reflected in the cases cited above are consistent with the language in CTC 56.02 (h) and 25 U.S.C. Sec.

1302 (8).

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Appellant's counsel alleged that one or more of St. Peter's convictions reflected in the FBI

computer printout were invalid, but he did not mention which convictions were misrepresented by the

printout. We also note that appellant's counsel did not ask the Court to convene an evidentiary hearing

prior to sentencing so that he could rebut the information contained in the PSIR and computer printout.

Rather, appellant's counsel now argues that under Washington law, the Tribes were required to prove, by

a preponderance of the evidence, what sentence should be imposed on the appellant. Counsel has also

advanced the argument that because the computer printouts are not admissible as evidence under the

Rules of Evidence, the Tribes have not proven by a preponderance that St. Peter should receive an

enhanced sentence. Appellant's counsel also argues that under Washington law, a sentencing court may

not refer to a computer printout of a defendant's criminal history for purposes of sentencing. Appellant's

Opening Brief at 15, citing In re Bush, 26 Wn. App. 486, 616 P.2d 666 (1980).

We have stated that Washington law has no place in this analysis. In addition, we find that

Washington statutory law with regard to sentencing diverges from CTC 2.6.02 and 2.6.07. Because there

is nothing in the Tribal Code or Tribal decisional law which precludes use of a computer printout to

establish a defendant's criminal history, we find that the principle established by In re Bush, supra does

not apply to the cases at bar. The principles set forth in CTC 2.6.02, CTC 2.6.07, and the discretion of the

trial judge, control information which may be considered at sentencing.

The federal due process right to be sentenced on the basis of accurate information has been

interpreted to mean that a defendant has the right to rebut or explain allegations made at a sentencing

proceeding. United States v. Shepherd, 739 F.2d 510, 515 (10th cir. 1984), citing United States v.

Papajohn, 701 F.2d 760,763 (8th cir. 1983), United States v. Aquero-Segovia, 622 F.2d 131, 132 (5th cir.

1980). In sentencing the trial judge may consider uncorroborated hearsay evidence that the defendant had

an opportunity to rebut or explain.

In United States v. Matthews, 773 F.2d 48 (3rd cir. 1985) the court adopted a test under federal

law to evaluate whether a sentence was based on criteria violative of a defendant's due process rights. The

test involves two inquiries: (1) whether misinformation of a constitutional magnitude was given to the

court; and (2) whether that misinformation been given specific consideration by the sentencing judge. The

federal courts have held, and the Panel agrees that factual matters considered as a basis for sentencing

must have some "minimal indicium of reliability beyond mere allegation" and must "either alone or in the

context of other available information, bear some rational relationship to the decision to impose a

particular sentence." Id. at 51. The Matthews court held that where the defendant had an adequate

opportunity to examine and correct controverted information and request an evidentiary hearing, the court

did not err by considering such information at sentencing.

Similarly, in United States v. Monaco, 852 F.2d 1143 (9th cir. 1988), the court addressed the

question of whether the trial court erred by considering a presentence report containing inaccuracies in

sentencing. The court held that in order to successfully challenge a presentence report, that information

must lack "[s]ome minimal indicium of reliability beyond mere allegation." Although a defendant must be

given an opportunity to explain why he believes a presentence report is incorrect, the scope of the

procedure for rebuttal lies within the sound discretion of the trial judge in "[b]alancing the need for

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reliability with the need to permit consideration of all pertinent information." Thus, it is within the court's

discretion to deny a request for an evidentiary hearing to rebut such alleged inaccuracies. Id. at 1148.

In United States v. Barnhart, 980 F.2d 219 (3rd cir. 1992), the court sentenced the defendant to 5 years

imprisonment rather than long-term alcohol treatment, as recommended in the presentence report. In that

case, the court held that in Pre-Guidelines cases the sentencing judge may consider a wide range of

factors when imposing sentence. Citing United States v. Tucker, 404 U.S. 443, the court noted that "[A]

judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of

information he may consider, or the source from which it may come." A sentencing judge is not obligated

to give reasons for imposing a particular sentence. Providing reasons for sentencing is salutary and not

mandatory. United States v. Crow Dog, 537 F.2d 308 (8th cir. 1976), cert. denied, 430 U.S. 929 (1977)

In Barnhart, supra, the court stated that to prove a due process violation, the defendant must show that the

challenged information "(1) false or unreliable, and (2) demonstrably made the basis for the sentence." (citation

omitted) The defendant bears the burden to show that the information is inaccurate and that the court relied on it.

980 F.2d at 225.

The Panel believes that the cases cited above provide sufficient guidance for adopting a scope of review of

trial court decisions when the defendant seeks to prove the court violated his right to due process by using inaccurate

information in sentencing. We have no difficulty applying those principles to reviewing sentencing procedure under

CTC 2.6.02 and CTC 2.6.07, and we hold, that when a defendant's criminal history is considered and relied upon by

the trial judge to impose an enhanced criminal sentence, that information must be accurate. However, in order to

successfully challenge a sentence imposed by the trial court on due process grounds, the defendant must do more

that make a mere allegation that information coming directly before the court or used in the presentence report is

materially false. The defendant must ask the sentencing judge for an opportunity to rebut such information and,

carry the burden to show the information is both material and false. Whether the trial court provides the defendant

with an opportunity to rebut such controverted information by continuing sentencing and holding a separate

evidentiary hearing is within the discretion of the court. If the trial judge refuses the defendant's request to set an

evidentiary hearing on the issue, that decision will be subject to appellate review as to whether the trial judge abused

his or her discretion.

Applying the above standards to the cases at bar, we find that the appellant was not denied an opportunity

to rebut controverted information about his criminal record. The appellant did not request an evidentiary hearing on

the accuracy of information contained in the FBI computer printout and PSIR. Nor has the appellant shown that the

trial judge relied on the allegedly false information in imposing the sentences. Thus, the Panel does not believe that

the appellant has carried his burden in showing (1) the information coming before the Court was material and false;

and (2) that the Court relied on that information in sentencing.

VI.

The appellant also challenges the Trial Court's refusal to follow the recommendations contained in the

Presentence Investigation Report that St. Peter be placed on probation and undergo substance abuse treatment. The

PSIR did not recommend that St. Peter be sentenced to imprisonment on any of the five charges. The issue before us

then is whether the Trial Court abused its discretion in sentencing St. Peter to imprisonment rather than long-term

substance abuse treatment, as recommended in the PSIR.

The federal courts have held that Presentence Investigations and Presentence Reports are intended to

provide the trial court with information about the defendant which will enable the court to meaningfully exercise its

sentencing authority. United States v. McCoy, 770 F.2d 647. A trial court does not abuse its discretion by sentencing

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2 CCAR ___

a defendant without the aid of a presentence investigation and report when it has sufficient information available to

make a fair sentencing determination. United States v. Latner, 702 F.2d 947 (Fla. 1983), cert. denied, 464 U.S. 914,

104 S.Ct. 274, 78 L.Ed.2d 255.

Although a sentencing judge is required to carefully evaluate the information contained in a presentence

report to ensure its accuracy, in toto adoption of information contained in presentence reports without regard to

erroneous information has given rise to reversal and remand for resentencing. United States v. Morgan, 942 F.2d

243 (4th cir. 1991).

While sentencing judges routinely rely on the recommendations contained in presentence investigation

reports, there is good reason for a prudent judge to approach such information and sentencing recommendations

contained in the PSIR with deliberation. Id. The probation officer has broad discretion as to the information which

may be included in presentence reports. Such reports may properly include hearsay which the trial judge may

consider at a sentencing hearing, United States v. Cardinal, 782 F. 2d 34, 37 (6th cir. 1986), cert. denied 476 U.S.

1161, 106 S.Ct. 2282, 90 L.Ed.2d 724. Even if information contained in presentence reports is accurate, the court

must weigh numerous variable and subtle factors which may properly influence his or her decision. These factors

inter alia include a balancing of sentencing theories. In the end, discretion in sentencing must reside in the trial

judge and not in the Probation Department.

In a case strikingly similar to the case at bar, a federal trial judge was held to have properly acted within his

discretion by rejecting the sentencing recommendation contained in the presentence report and imposing a five year

jail term. United States v. Barnhart, supra. In that case, the sentencing recommendation contained in the PSIR was

for long-term alcohol treatment rather than incarceration. The court, observing that the defendant had been given

ample opportunities to get his life together, disregarded the sentencing recommendation. The appellate court found

that the trial judge, who had previously dealt with the defendant, had adequate information about the offense and the

individual to meaningfully exercise his sentencing discretion.

Although there are many reasons for conducting a presentence investigation, the appellant has cited no

authority in support of his argument that the Trial Court must comply with the sentencing recommendations

contained in a presentence report. We are aware of no statutory requirement under Tribal law which says the trial

judge must order a presentence investigation or requires the trial judge to follow the recommendations contained in a

PSIR. Further, requiring the trial judge to follow sentencing recommendations of the Probation Department would,

in effect, divest the Court of sentencing authority. The Panel believes this is contrary to the discretionary authority

delegated to the trial judge in CTC 2.6.02 and 2.6.07.

Accordingly, we hold that the Trial Court did not err by refusing to follow the recommendations contained

in the PSIR and, instead, imposing successive jail terms.

VII.

We next address whether the Trial Court abused its discretion by sentencing David St. Peter to five

maximum consecutive jail terms. The appellant contends that the Trial Court abused its discretion by imposing

sentences which were arbitrary and capricious and violated the prohibition against cruel and unusual punishment.

The appellant advances a number of theories in support of these contentions.

The Colville Tribal Business Council has established a broad range of criminal penalties for offenders who

are convicted of violating criminal statutes enumerated in the Code. These criminal misdemeanor statutes are

divided into three classes, and the penalty range for a given offense is governed by the class to which the particular

crime was assigned. A person convicted of "Class A" offenses "shall be sentenced to imprisonment for a period not

to exceed 360 days, or a fine not to exceed $5,000, or both the jail sentence and the fine." CTC 5.7.01. "Class B"

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offenses carry a maximum jail term of 180 days, or a maximum fine of $2,500, or both. CTC 5.7.02. "Class C"

offenses carry a maximum penalty of 90 days imprisonment, or a maximum fine of $1,000, or both. CTC 5.7.03.

The Code is silent as to whether the sentences for offenses arising from the same transaction may be imposed

consecutively.

The appellant was convicted of Disorderly Conduct, CTC 5.5.04, Assault, CTC 5.1.03, and Trespass To

Buildings, CTC 5.2.18 which are "Class C" offenses, and Resisting Arrest, CTC 5.4.17, a "Class B" offense. Thus,

the maximum consecutive penalties for all offenses is 540 days in jail, $6,500 in fines, or both. The appellant,

having received credit for 10 days of jail time served, was sentenced to a jail term of 530 days. Although the trial

court imposed maximum jail sentences on the appellant, she did not impose the maximum penalty available for the

offenses.

The language chosen by the Tribal Business Council in CTC 5.7.01 et seq. limits the Trial Court's

discretion in sentencing. The various offenses enumerated in the Code have been graded into classes for purposes of

sentencing. These statutes prohibit the trial judge from imposing a greater sentence for a crime than provided for the

class within which the offense falls. Further, all criminal offenses set out in the Code are classified as misdemeanors,

which, by definition cannot result in imprisonment for more than one year. In addition, the Congress has restricted

sentencing authority of the Tribal Court by placing an upper sentencing limit of one year imprisonment and a fine of

$5,000 on the court. 25 U.S.C. Sec. 1301 et seq.

We note that the sentences imposed upon St. Peter by the trial judge were within statutory limits. It is

evident that the Tribal Council has delegated considerable latitude to the Trial Court in sentencing criminal

offenders within the statutory limits set out in the Code. Because the sentences fall within statutory limits, the

Appellate Panel will review only the process by which punishment is determined rather than make an unjustified

incursion into the province of the sentencing judge.

VIII.

We now turn to the appellant's argument that the Tribal Court abused its sentencing discretion by arbitrarily

and capriciously imposing punishment or violating the prohibition against cruel and unusual punishment. We have

found no legal precedent under Tribal law to guide us in determining when a trial judge abuses his or her discretion

in sentencing or when appellate intervention is required. Further, we have stated that Washington statutory law and

case law concerning sentencing does not apply to this analysis. Although we are not bound to apply judicially

created standards of appellate review of criminal sentencing practices under the United States Constitution, we turn

to federal case law to see how these issues have been resolved.

IX.

It is a well established principle under federal law that sentences imposed within statutory limits are

generally not reviewable by the appellate court. Dorszynski v. United States, supra; United States v. Tucker, supra.

See also Wright, Federal Practice and Procedure (1986), Sentence and Judgment, Sec. 533. Subject only to the

limitations imposed by the statute and Constitution, the punishment to be given a convicted offender is in the

discretion of the court. Robbins v. United States, 345 F.2d 930 (9th cir. 1965).

Where it is shown that the trial court failed to exercise its discretion or, in exercising its discretion has

manifestly or grossly abused that discretion, will the appellate court intervene. Giblin v. United States, 523 F.2d 42

(8th cir. 1975), cert. denied 424 U.S. 971, 96 S.Ct. 1470, 47 L.Ed.2d 759. The constitutional guarantee of due

process continues to operate in sentencing, and circumscribes the court's discretion. United States v. Borrero-Isaza,

887 F.2d 1349, 1352 (9th cir. 1989). Thus, in appellate review of the judicial process by which a particular sentence

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is imposed, the court's goal is to "[g]uarantee that the trial judge's discretion actually has been exercised, and that the

information relied upon in sentencing is not unreliable, improper, or grossly insufficient." Appellate review of the

sentencing process, as distinguished from the length of sentence, is an appropriate area of inquiry. United States v.

Hopkins, 531 F.2d 576, 580 (D.C. cir. 1976) (citations omitted).

The federal courts have held that a defendant's due process rights may be violated when the trial court does

not exercise its discretion in sentencing. United States v. Wardlaw, supra. This can be shown where the court

maintains a rigid policy of imposing maximum sentences for certain offenses, United States v. Johnson, 501 F.2d

826, 830 (7th cir. 1974), cert. denied, 421 U.S. 949, refuses to consider mitigating and aggravating factors in making

its sentencing determination, United States v. Lopez-Gonzales, 688 F.2d 1275, (9th cir. 1982), or mechanically

imposes punishment based on the type of crime, without considering the characteristics of the offender. Williams v.

New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed.2d 637 (1949).

The court must individualize the sentence by considering all the circumstances of the crime and an

assessment of the defendant's culpability. United States v. Barker, 771 F.2d 1362, 1364 (9th cir. 1985). Whatever the

judge's thoughts might be as to the deterrent value of a jail sentence, he or she must reexamine and measure that

view against the relevant facts and other important goals such as the offender's rehabilitation. United States v. Foss,

501 F.2d 522, 529 (1st cir. 1974). Having considered the crime, the surrounding circumstances, the defendant's

individual characteristics, and balanced these factors with sentencing theories, the judge must decide what factors, or

mix of factors, carry the day. United States v. Wardlaw, supra; United States v. Foss, supra.

While the duty of the courts to individualize sentences is clear, in Baker, supra, the court observed that it

may be impossible to develop "a single test or standard sufficient to insure individualized sentencing." 771 F.2d at

1366. The development of any sort of rigid review standard runs a risk of becoming as mechanistic as the sentencing

practices the court seeks to avoid.

X.

In conducting this limited review, we emphasize that the due process principles reflected in the cases cited

above are federal constitutional standards which cannot be applied without great difficulty to Tribal law. Further, the

question before us is whether the appellant's due process rights under Tribal law were contravened. We believe that

such a finding must precede any determination that the appellant's due process rights were violated under the Indian

Civil Rights Act, 25 U.S.C. Sec. 1302 (8). Therefore, we adopt a flexible standard of review, utilizing the above

principles, to determine whether the appellant was afforded due process under Tribal law.

XI.

An examination of the record shows that while David St. Peter was given maximum jail terms for each of

five sentences, additional charges of Battery and Resisting Arrest were dismissed as part of a plea bargain

agreement. Appellant's Opening Brief, Page 1. In addition, the Presentence Investigation Report indicates that St.

Peter has an extensive background of prior offenses and a history of alcohol-related incidents with the Tribes.

Further, St. Peter has undergone alcohol treatment on four separate occasions.

The record does not show that the trial judge stated her reasons for the sentences she imposed, and we do

not believe she was required to do so. It is clear that the trial judge was made aware of the appellant's criminal

history and that she considered, at least, Tribal convictions in sentencing. In response to the appellant's objections to

use of a United States Government computer printout showing his criminal history, the trial judge indicated that she

would not rely on state convictions reflected in the printout, but would refer to the printout for a record of Tribal

convictions.

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The fact that the PSIR was before the court and contained a recommendation to place St. Peter on 18

months probation, with involvement in adult vocational rehabilitation and alcohol programs indicates that the trial

judge considered rehabilitation along with deterrence in sentencing. We believe the Court was not bound to follow

the recommendations of the Probation Department in sentencing. We believe that a trial judge would fail to exercise

discretion if she were required to impose sentencing consistent with such recommendations. In view of St. Peter's

past criminal involvement, including alcohol-related offenses after undergoing alcohol treatment on four separate

occasions, and the dismissed Battery and Resisting Arrest charges, we find the trial judge did not abuse her

discretion by rejecting the Probation Department's recommendations for sentencing.

From the preceding discussion, it is clear that the trial judge balanced the value of deterrence in sentencing

with St. Peter's likelihood of alcohol rehabilitation and adult educational training as part of probation. It is equally

clear that the trial judge determined that rehabilitation was not an appropriate sentencing goal in this instance. In

light of St. Peter's past alcohol treatment and continued criminal conduct, we believe the trial judge did not abuse

her discretion in reaching that conclusion. From this and the information before the Court, we conclude that the trial

judge did not mechanically sentence St. Peter. We hold that the trial judge had sufficient information to

meaningfully exercise her sentencing discretion and that she exercised her discretion by sufficiently individualizing

sentencing so that the punishment fit not only the offenses, but the individual.

XII.

We are not aware of any provision under Tribal law that requires a trial judge to make a finding that a

defendant would derive no benefit from rehabilitation before imposing a maximum jail sentence. From our reading

of the Code it is clear that the Tribal Business Council delegated broad sentencing discretion to the trial judge, and

imposed no such restrictions on the Tribal Court.

The appellant invites the Panel to adopt a similar sentencing standard as did the Congress in enacting the

Federal Youth Corrections Act, 18 U.S.C. Sec. 5005, et seq., which has significantly restricted the sentencing

authority of federal trial court judges. Under that statute the trial court must make a finding that a youthful offender

would derive "no benefit" from rehabilitation before sentencing such offenders under other applicable penal statutes.

Dorszynski v. United States, 424 U.S. at 442. See also United States v. Wardlaw, 576 F.2d at 936-37.

We believe that placing a "no benefit" requirement on the Trial Court before it can sentence offenders to a

maximum jail term would amount to a legislative act by the Court and an impermissible incursion in to the province

of the trial judge. This practice and would seriously impair the meaningful exercise of the trial judge's sentencing

discretion by, in effect, requiring exhaustion of rehabilitative measures before deterrent sentencing could be

considered.

We do not accept the appellant's argument that the Trial Court erred by not adopting sentencing standards.

The Tribal Business Council has adopted sentencing standards by enacting statutes which limit the punishment

which may be imposed for specific offenses. We consider the sentencing limitations found in CTC 5.7.01, 5.7.02

and 5.7.03 to be a reflection of legislative intent to restrict the Trial Court's sentencing discretion. Although the

Tribal Business Council has delegated the Trial Court considerable discretion in sentencing, that discretion is

circumscribed by the language in the sentencing statutes. Id. The appellant has not challenged the sentencing statutes

as being an unlawful delegation of authority to the Court. We believe that imposition of additional sentencing

standards by the Panel on the Trial Court, acting within the scope of the Tribal Constitution and the boundaries of its

statutorily delegated authority, is a legislative function which should be left to the Tribal Business Council, and not

the Appellate Panel.

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XIII.

The appellant relies on Randall v. Yakima Nation Tribal Court, 841 F.2d 897 (9th cir. 1988) as controlling

in this case. Randall stands for the principle that once a tribe has adopted certain procedures, the tribal court must, as

a matter of due process follow those procedures. In Randall, the Court stated:

"Where the tribal court procedures under scrutiny differ significantly from those

commonly employed in Anglo-Saxon society...courts weigh the individual right

to fair treatment against the magnitude of the tribal interest in employing those

procedures." (citation omitted)

Id. at 900. However, where tribal court procedures parallel those found in Anglo-Saxon society, the court will not

engage in a complex weighing of interests. In that latter instance, the court will "[h]ave no problem of forcing an

alien culture, with strange procedures on these tribes." Id. (citation omitted)

Thus, where the Yakima Nation had adopted certain procedures governing an appellant's perfection of her

right to appeal, and the tribal court deprived the appellant of that right by failing to comply with established court

procedure, the Ninth Circuit Court of Appeals had no difficulty applying principles of federal constitutional law and

finding that a litigant had been denied due process. Id at 901. We do not believe that Randall is applicable to this

case for the reason that the Colville Confederated Tribes have not adopted detailed sentencing procedures such as

found in the Federal Rules of Criminal Procedure, and we have not found that the Trial Court abused its discretion in

sentencing. We do not find that the procedures followed by the Tribal Court parallel those found in Anglo-Saxon

society. The Panel rejects the appellant's view that by adopting procedures similar to those used by the federal or

state courts, the Tribes have somehow come within the full reach of the Bill of Rights. This view, which would

expand the application of Randall to an area where the Tribal Business Council has delegated considerable latitude

to the Tribal Court, runs counter to the clearly enunciated purpose of ICRA, which affords constitutional protection

to litigants while fostering tribal self government and cultural autonomy. We view the Tribal Business Council's

delegation of broad discretion to the Tribal Court as a statement of policy that the Tribal judge is aware of Tribal

norms and is in a position to apply the law consistent with those values.

The Panel also rejects the notion that the doctrine set out in Randall, with its harsh result, should apply

where the Tribal Court has adopted procedures designed to provide consistency and accountability in Court

proceedings. Even if the Court should follow the Federal Rules of Evidence or the Business Council should adopt

specific court rules which parallel the federal criminal rules, this does not mean that the Tribal culture, tradition and

autonomy has been abandoned. Nor does it mean that the Tribal Court has taken on such an Anglo-Saxon character

that the Bill of Rights should be applied. Following this illogical rule would discourage the Tribal Business Council

and the Tribal Court from adopting written, uniform procedures, including those based upon Tribal tradition and

cultural standards, or other measures which could improve operation of the Court.

This does not mean that we believe the reasoning in Randall should not be applied in an appropriate case in

which the Panel finds that established procedural rules have been violated and the prejudice shown is of a nature

where no balancing of tribal and individual interests is required. This is not the nature of the case before us. The

Panel finds that neither the Colville Confederated Tribes nor the Tribal Court have adopted procedures which, under

the rationale of Randall, bring the instant matter under the federal review standards of the Bill of Rights.

XIV.

The appellant argues that the sentences imposed by the Trial Court constitute cruel and unusual punishment

in violation of the Colville Tribal Civil Rights Act, CTC 56.02 (g) and the Indian Civil Rights Act. 25 U.S.C. Sec.

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1302 (7). We again turn to a review of federal law, though not binding on this Court, to see how the federal courts

have addressed this issue.

Sentences that are extremely disproportionate to the offenses have sometimes been held to violate the

constitutional prohibition against cruel and unusual punishment. United States v. Wardlaw, 852 F.2d at 937.

(citations omitted). The inquiry to be made is "[w]ere the sentences were so arbitrary and shocking to the sense of

justice as to constitute cruel and unusual punishment." United States v. Hayes, 589 F.2d 811 (5th cir. 1979), reh.

denied 591 F.2d 1343, cert. denied 444 U.S. 847, 100 S.Ct. 93, 62 L.Ed.2d 60. To prevail on such a challenge, the

Appellant must show that the Court's action amounted to an arbitrary and capricious action rising to a gross abuse of

discretion. United. States. v. Small, 636 F.2d 126 (5th cir. 1981).

We reiterate the principle that under federal law a sentence within the statutory maximum is only subject to

review on appeal for manifest abuse of discretion. United States v. Johnson, 507 F.2d at 830-31 (citing United States

v. Tucker, 404 U.S. at 447). "Only where the trial judge has failed to exercise his discretion, or in exercising his

discretion has manifestly or grossly abused that discretion will the appellate court intervene." Giblin v. United

States, 523 F.2d at 42.

We have found that the Trial Court imposed sentences on St. Peter that were within statutory limits. Under

federal law we do not believe that those sentences were "so arbitrary and shocking to a sense of justice" as to violate

the prohibition against cruel and unusual punishment or that the trial judge "manifestly or grossly abused her

discretion" by imposing the sentences. Similarly, we have found no support for the appellant's argument under

Tribal law.

XV.

Finally, the appellant contends that the Trial Court erred by imposing consecutive rather than concurrent

jail sentences, as required under Washington sentencing law. The Panel has rejected Appellant's argument, based

upon the Principles Of Construction, supra., that State sentencing law should be applied in order to give meaning to

the term "sentence." The Panel likewise declines to apply State sentencing law with regard to concurrent sentencing

practices.

The appellant has cited no authority under Tribal law which requires the Trial Court to impose concurrent

sentences. However, Appellant advances the theory that consecutive sentencing in the instant cases has violated his

right to due process and his right to be free from cruel and unusual punishment under the Colville Tribal Civil

Rights Act, CTC 56.02 (g), (h), and the Indian Civil Rights Act, 25 U.S.C. 1302 (7), (8).

The Colville Tribal Code and the Tribal Constitution are silent with regard to whether the Trial Court

should impose concurrent or consecutive sentences. In addition, the Panel is not aware of any action by Congress

which has divested the Tribal Court of authority to impose consecutive sentences. Accordingly, the Panel concludes

that the decision to impose concurrent or consecutive jail sentences is within the discretion of the trial judge. Our

review will, therefore, be based on whether the trial judge abused her discretion.

Because there is no Tribal common law authority to draw upon for guidance, we again examine federal

sentencing law to see how the federal courts have resolved this issue. We reiterate that federal sentencing law is not

binding on the Tribal Court.

Absent statutory direction to impose concurrent or consecutive sentences, federal courts generally are

invested with power to choose the manner in which sentences will be served. See Wright & Miller, Federal Practice

and Proc., Sentence and Judgment, Sec. 32.08 [1] [c] (1991). The inherent authority of the court to select how

multiple sentences will be served assumes that sentencing is for distinct offenses. Only if a statute is ambiguous

regarding whether a criminal act warrants separate sentences will the "rule of lenity" be applied, id. citing United

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States v. Zuleta-Molina, 840 F.2d 157, 159 (1st cir. 1988). Absent such ambiguity, the trial judge may impose

consecutive separate sentences for the offenses committed.

In Blockburger v. United States, 284 U.S. 299, 52 S.Ct.180, 76 L.Ed. 306 (1932), the United States

Supreme Court adopted the principle that individual prohibited acts arising from a continuous course of conduct

give rise to separate punishments. However, if the course of action which the individual acts comprise is the thing

prohibited, only a single penalty may be imposed. Id. at 302. For multiple punishments, each offense requires proof

of a different element.

The Blockburger doctrine was upheld in Gore v. United States, 357 U.S. 386, 78 S.Ct.1280, 2 L.Ed.2d

1405 (1957). In that case the Court distinguished between offenses for which Congress has not explicitly stated what

the unit of offense is and a course of conduct involving violation of separate statutes. Id. at 391. In the former, where

there is lack of definition by the Congress, the court will apply the rule of lenity to favor the defendant.

Congress has since placed controls on sentencing inter alia by establishing guidelines for federal courts to

follow in imposing consecutive or concurrent sentences. 18 U.S.C. Sec. 3584. Thus, restrictions on the court's

sentencing authority involving multiple offenses is the result of a legislative act, and not court action.

While there has been federal legislation enacted to limit sentencing authority of the federal courts, no

similar federal sentencing restrictions have been placed on tribal courts. In that regard, the relevant limitations on

tribal court sentencing appear in the Indian Civil Rights Act. The Act provides that no Indian tribe shall "subject any

person for the same offense to be twice put in jeopardy." 25 U.S.C. 1302 (3), or "impose for conviction of any one

offense any penalty or punishments greater than imprisonment for a term of one year or a fine of $5,000 or both." 25

U.S.C. Sec. 1302 (8). (emphasis added)

The language in 25 U.S.C. Sec. 1302 (8) does not contain any indication that Congress intended that tribes

refrain from imposing concurrent sentences for multiple offenses. The Act only limits the sentence which may be

imposed for any one offense. Further, no restrictions on the Court's authority to impose consecutive sentences have

been enacted by the Tribal Business Council and none appear in the Tribal Constitution.

From our discussion of the above authority, we find that nothing in the Tribal Code, the Tribal

Constitution, ICRA, or CTCRA prohibits the Tribal Court from imposing consecutive sentences on a defendant

convicted of multiple offenses. We also find that the Tribal Court practice of consecutive sentencing is consistent

with pre-guidelines standards followed by the federal courts. However, the rule of lenity set forth in Gore, supra, is

not binding on the Tribal Court. We believe it is significant that the offenses adjudicated by the Tribal Court are

misdemeanors, and adoption of the rule of lenity would unduly interfere with the Court's discretion. Any decision to

adopt that rule is a legislative function. Further, federal sentencing guidelines are not binding on the Tribal Court.

The Panel also finds that the decision to impose concurrent or consecutive jail sentences on an offender

convicted of multiple offenses is left to the discretion of the Trial Court. Further, we find that the Tribal Court did

not abuse its discretion by imposing consecutive jail terms in the instant cases.

The judgments and sentences are Affirmed.

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2 CCAR ___

Alvie D. CLEPARTY, Appellant,

vs.

COLVILLE CONFEDERATED TRIBES, Appellee.

Case No. AP93-15221/15222, 2 CTCR 55, 21 ILR 6004

2 CCAR 19

[Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.

Lin Sonnenberg, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.]

Argued October 8, 1993. Decided November 3, 1993.

Before Chief Judge Nelson, Judge Bonga and Judge Collins

NELSON, C.J.

This matter came before the Appellate Panel consisting of David Bonga, Brian Collins and Dennis L.

Nelson, for hearing on the appeal of Alvie D. Cleparty on denial of Judge Elizabeth Fry to recuse herself from all

further proceedings. Representing the appellant, Alvie Cleparty, was public defender J. Rasmussen and representing

the appellee, Colville Confederated Tribes was prosecutor Lin Sonnenberg.

On April 15, 1993, Frank LaFountaine, attorney for the appellant, moved the Trial Court for an order “reassigning the ... case to (a) judge other than Associate Judge Elizabeth Fry..”. Alleged grounds for the motion were

contained in an affidavit of prejudice prepared and signed by Mr. LaFountaine.

1

The same day the appellant noted the motion to recuse for hearing. Judge Fry, after hearing the testimony

of the appellant, the arguments of counsel and reviewing the files and records, entered Findings of Fact, Conclusions

of Law, and an Order denying the motion to recuse.

The Order was immediately appealed as provided by Colville Tribal Code (CTC) 1.5.04.

The matter came on regularly before the Appellate Panel on October 8, 1993.

The appellant began the proceedings by withdrawing all but two issues on appeal. The issues remaining

were 1) whether the affidavit of prejudice contained sufficient facts to mandate the recusal of Judge Fry and 2)

whether Judge Fry exceeded her authority by holding a hearing on the Motion to Recuse.

SUFFICIENCY OF THE AFFIDAVIT OF PREJUDICE

The affidavit of prejudice contained in pertinent part, the following:

“That the defendant cannot have a fair and impartial trial by reason of the

interest or prejudice of Associate Judge Elizabeth Fry;

That Judge Fry is known to be hostile to the defendant;

That Judge Fry has a history of imposing excessive sentences on criminal

defendants;

That the defendant could receive a sentence of 360 days in jail and/or $5,000.00

for each offense, if convicted;

That Judge Fry will impose an excessive sentence on the defendant if convicted

and has imposed excessive sentences on the defendant in the past;

1

The affidavit of prejudice should be signed by the person who is attesting to personal knowledge of the facts reported. This is most often a

party to the action and not his attorney or spokesperson.

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2 CCAR ___

That Judge Fry refuses to recognize any standards in sentencing criminal

defendants;

That the Court has failed to set any standards for sentencing defendants;

That the defendant is afraid of Judge Fry; and

That the defendant by and through his/her legal counsel requests that another

judge be assigned to this case.”

The Panel examined the affidavit of prejudice and finds it does not contain sufficient statements of fact

from which Judge Fry could make an informed decision regarding recusal.

AUTHORITY TO HOLD HEARING ON AFFIDAVIT OF PREJUDICE

The appellant contends that the provisions of CTC 1.5.04 mandate a judge to issue the appropriate order of

recusal on the sole basis of what is contained in the information within the four corners of the affidavit. He points to

that portion of CTC 1.5.04 which states that “the judge shall pass on the adequacy of the affidavit of prejudice and

enter the appropriate order.” The appellant construes this clause to narrowly.

Should an affidavit of prejudice contain serious allegations and very little fact, as in the instant case, due

process and judicial economy require the judge to consider whatever evidence can be offered for or against recusal.

This can most appropriately be done at a hearing. St. Peter v. Colville Confederated Tribes, AP92-15400/507-10, [1

CTCR 75, 2 CCAR 2, 20 ILR 6108] (1993). Judge Fry did not exceed her authority by hearing the defendant’s

testimony and the argument of counsel on the affidavit of prejudice.

Finally, it has not passed unnoticed that the appellant has assumed inconsistent positions; to wit: despite

treating the affidavit of prejudice as a motion to recuse and noting it for hearing he now argues that Judge Fry

exceeded her authority by holding a hearing on the affidavit of prejudice. Under most legal theories the appellant

would now be estopped from pursuing this argument. Nevertheless, the issue was ripe for determination and the

Appellate Panel chose to consider it.

For the foregoing reasons, the order of denial to recuse is Affirmed.

Danny Joe STENSGAR, Appellant,

vs.

COLVILLE CONFEDERATED TRIBES, Appellee.

Case Number AP92-15068, 1 CTCR 76, 20 ILR 6151

2 CCAR 20

[Frank LaFountaine, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.

Tim Liesenfelder, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.

Trial Court Case Number 92-15068]

Arguments heard May 28, 1993. Decided November 10, 1993.

Before Chief Judge Baker, Judge Bonga and Judge Chenois

BAKER, C.J.

Court of Appeals Reporter

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2 CCAR ___

This matter came on for oral argument on the 28th day of May, 1993, with Plaintiff/Appellee appearing by

Deputy Prosecuting Attorney Timothy A. Liesenfelder and Defendant/Appellant being represented by Public

Defender Frank S. LaFountaine. Dave Bonga, Edythe Chenois and Rebecca Baker presided.

Defendant has appealed his sentence and requested dismissal of his conviction for Driving While Under the

Influence of Intoxicating Liquors and/or Drugs.

PROCEDURAL HISTORY

On April 22, 1992, the appellant entered a plea of guilty to the charge of Driving While Intoxicated. The

Trial Court ordered a presentence investigation and set Appellant's sentencing date and time for June 29, 1992, at

1:30 p.m. Appellant signed a Consent to Release Information and Promise to Appear, acknowledging the sentencing

date and time and agreeing to appear as ordered. The sentencing date was later rescheduled by the court

administrator, apparently due to court docket congestion and administrative concerns surrounding the hiring of a

new chief judge for the Colville Tribal Court.

Appellant was sentenced on July 10, 1992. Although no objection was interposed prior to this date, at the

sentencing hearing Appellant's counsel objected to the fact that the sentencing date had not been scheduled by June

22, 1992, as required by CTC 2.4.04.

The Appellate Court met via telephonic conference call on October 16, 1992, and, without oral argument or

briefing, summarily ruled that the Tribes had lost jurisdiction over the defendant, based upon CTC 2.4.04, and

dismissed the case, with prejudice. Appellee then moved the Court to vacate the order and set the matter for oral

argument pursuant CTC 1.9.05. Finding that it had deprived the appellant of the opportunity for oral argument, and

concluding that oral argument was required by CTC 1.9.05, the Appellate Panel vacated the previous order of

dismissal, and the matter was set for oral argument May 28, 1993.

QUESTION PRESENTED

The sole question on this appeal is whether CTC 2.4.04 mandates dismissal, with prejudice, of a criminal

charge if a sentencing date occurs more than sixty (60) days after the entry of a plea of guilty.

SUMMARY OF DECISION

While we do not approve of the court's failure to follow the sixty-day sentencing rule, under the facts of

this case it resulted in no prejudice to the defendant and was in part done to accommodate Defendant's request to

have time to complete inpatient alcohol treatment; therefore, the sentencing of Defendant more than sixty (60) days

after the entry of his plea violated neither his speedy trial rights nor his due process rights. We, therefore, affirm the

Trial Court's denial of Defendant's Motion to Dismiss and remand to the Trial Court for imposition of the sentence

already given.

ANALYSIS

Appellant argues that the defendant must be freed from the obligations of his sentence because the Tribal

Court imposed that sentence outside the sixty (60) days contemplated under Section 2.2.04 of the Colville Tribal

Code. That section reads:

CTC 2.4.04 Sentencing

Upon a plea of "guilty," the judge may impose sentence at once or at a later date

not to exceed sixty (60) days at his discretion.

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Without citing any authority, Defendant argues that this code section is jurisdictional, i.e., that failure to comply

with the sixty-day "deadline" mandates dismissal, with prejudice, of the criminal charges of which Appellant has

been found guilty.

Appellant's companion argument is a due process one, under a Section of the Indian Civil Rights Act of

1968, 25 USC §1302(a), and the analogous section of the Colville Tribal Civil Rights Act, CTC 56.02(h). Appellant

goes on to cite Randall v. Yakima Nation Tribal Court, 841 F.2d 897 (9th Cir. 1988), for the general proposition that

tribal courts must follow their own court procedures and that, when the court deviates from such procedures, a

defendant's due process rights may have been violated.

As Appellee points out in its brief, however, the Tribal Code does not expressly mandate dismissal if a

defendant is sentenced beyond the sixty (60) day sentencing deadline, and there is no Tribal case law to this effect.

Since this is a criminal case, then, we look to the Applicable Law section of the Colville Tribal Code Chapter

entitled "Rules of Court," Section 4.1.11, which reads:

In all cases the court shall apply, in the following order of priority unless

superseded by a specific section of the Law and Order Code, any applicable

laws of the Colville Confederated Tribes, tribal case law, state common law,

federal statutes, federal common law and international law.

The appellee cites two Tribal Code provisions having to do with principles of construction, CTC 1.1.07(f)

and (h), which we feel have limited, if any, application to this analysis. The appellee goes on to cite CTC section

1.5.05, a section entitled "Means to Carry Jurisdiction into Effect,” which provides:

When jurisdiction is vested in the court, all the means necessary to carry into

effect are also given; and in the exercise of this jurisdiction, if the course of

proceeding is not specified in this code, any suitable process or mode of

proceeding may be adopted which appears most conformable to the spirit

of Tribal law.

(Emphasis supplied.)

While we disfavor frequent reliance on this code section, it does have application to the instant case,

inasmuch as CTC 2.4.04 is silent as to the remedy or consequence of failure to comply with the sixty-day deadline

for sentencing. Without more, however, we would be uncomfortable in relying solely on CTC 1.5.05, so we turn to

Section 4.1.11 to examine what other law to which the Appellate Court can refer.

Neither party cites any other "applicable laws of the Colville Confederated Tribes, tribal case law, state

common law [or] federal statutes" in support of the party's position. CTC 4.1.11. Therefore, we proceed to analysis

of the federal common law (case law) as we have been encouraged to do in Appellee's response brief.

RIGHT TO "SPEEDY SENTENCING"

Federal case law has taken up the question of the significance and consequences of a delay in sentencing in

the context of whether such a delay amounts to a violation of the speedy trial protections of the Sixth Amendment of

the United States Constitution. In some cases, delay has been found to constitute a violation, but the federal courts

have set out an analytical framework for determining, on a case-by-case basis, whether a particular delay in

sentencing rises to the level of an unconstitutional deprivation of rights. Beavers v. Haubert, 19g U.S. 77, 49 L.Ed.

950, 25 S.Ct. 573 (1905); Franket v. Woodrough, 7 F.2d 796 (8th Cir. 1925). The court in Pollard v. United States,

352 U.S. 354, 1 L.Ed.2d 393, 77 S.Ct. 481 (1957), stated that such a delay depends upon the circumstances. "The

delay must not be purposeful or oppressive." (352 U.S. at 361.)

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In Pollard, supra, the court had given a questionable period of "probation" in 1952, and in 1954 the trial

judge sentenced him on the same matter. In footnote 8 of the Pollard decision, the court pointed out a factor which

is applicable to the instant case:

We note that petitioner made no motion to secure a prompt proper sentence,

often considered important in questions involving the speedy trial clause.

(Citations omitted.)

In denying the defendant's motion for dismissal due to the two year delay, the Supreme Court stated, 352 U.S. at

362, as follows:

Error in the course of a prosecution resulting in conviction calls for correction of

the error, not the release of the accused.

(Citations omitted.)

In 1972, the Supreme Court had an opportunity, once again, to analyze the issue and further define the

nature of the Sixth Amendment protections of a speedy trial as applied to "speedy sentence" in the case of Barker v.

Wingo, 407 U.S. 514, 522, 33 L.Ed.2d 101, 112, 92 S.Ct. 2182 (1972). There, the court stated:

[A]s we recognized in Beavers v. Haubert, [supra], any inquiry into a speedy

trial claim necessitates a functional analysis of the right in the particular context

of the case: "The right of a speedy trial is necessarily relative. It is consistent

with delays and depends upon circumstances. It secures rights to a defendant. It

does not preclude the rights of public justice."

(Citations omitted.)

The court went on to say:

The amorphous quality of the right atso leads to the unsatisfactorily severe

remedy of dismissal of the indictment when the right has been deprived.

(407 U.S. at 522, 33 L.Ed.2d at 112; citations omitted.)

The Supreme Court was resolving a conflict in decisions of the Second and Eighth Circuit Courts of Appeal.

Whereas the Second Circuit had adopted a less strict interpretation of the rule, the Sixth Circuit had adopted a

"demand/waiver rule" whereby a defendant must have made a demand for a speedy trial, or it was deemed waived.

In Barker, the court resolved this conflict between the circuits by laying out the following analysis:

Under this [Sixth Circuit] rigid approach, a prior demand is a necessary

condition to the consideration of the speedy trial right. This essentially was the

approach the Sixth Circuit took below. Such an approach, by presuming waiver

of a fundamental right from inaction, is inconsistent with this court's

pronouncements on waiver of constitutional rights. The court has defined waiver

as "an intentional relinquishment or abandonment of a known right or privilege.

... We reject, therefore, the rule that a defendant who fails to demand a speedy

trial forever waives his right. This does not mean, however, that the

defendant has no responsibility to assert his right. We think the better rute is

that the defendant's assertion of or failure to assert his right to a speedy trial is

one of the factors to be considered in an inquiry into the deprivation of the right

....

We, therefore, reject both of the inflexible approaches--the fixed time period

because it goes further than the Constitution requires; the demand-waiver rule

because it is insensitive to a right which we have deemed fundamental. The

approach we accept is a balancing test, in which the conduct of both the

prosecution and the defendant are weighed ....

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A balancing test necessarily compels courts to approach speedy trial cases

on an ad hoc basis. We can do little more than identify some of the factors

which courts should assess in determining whether a particular defendant

has been deprived of his right.

(432 U.S. at 529-530; emphasis supplied.)

The Barker court went on to enumerate four factors to be examined on an ad hoc basis in any determination

of Sixth Amendment speedy trial rights. These four factors are:

1. The length of delay;

2. The reason for the delay, i.e, whether the government or the defendant caused the delay;

2

3

3. Whether or not the defendant asserted his right ; and

4. Prejudice to the defendant, including three such interests:

a. Prevention of oppressive pretrial incarceration;

b. Minimization of anxiety and concern of the accused; and

c. Limitation of the possibility that the defense will be impaired.

In analyzing the factors enumerated in Barker v. Wingo, supra, in the context of the case at bar, we find

that, under the limited facts of this case, the Tribal Court's sentencing of Defendant on July 10, 1992, rather than on

June 22 or June 29, 1992, was not a denial of Defendant's speedy trial/sentencing rights under the Sixth

Amendment, nor under the analogous provisions of the Indian Civil Rights Act, 25 U.S.C. § 1302(8), nor the

Colville Tribal Civil Rights Act, CTC 56.02(f).

First, the length of delay was no more than eighteen days, or even less (eleven days) if it is taken into

account that defendant himself requested a sentencing date of June 29, rather than June 22, to accommodate his

inpatient alcohol schedule. Second, the cause for the delay was court congestion and/or administrative problems

within the Court itself, arising out of a hiring of a new chief judge. While we do not and would not in all

circumstances justify violation of established Code sections on this basis, it is to be noted that the delay was not

caused by the prosecuting attorney's office directly, and in fact a portion of the delay, from June 22 to June 29, was

caused by a request from the defendant. Given his Consent to Release and Promise to Appear, signed April 22,

1992, and acknowledging the sentencing date, we find that the defendant waived his "speedy sentencing" rights, at a

minimum, to June 29. We do not find unreasonable, under the circumstances, the additional eleven-day delay caused

by the court administrator.

The third factor, whether or not the defendant asserted his right, here militates against the appellant as well.

Appellant certainly did not raise any objection to the setting of the sentencing date for June 29, which was outside

the sixty (60) days. At sentencing, however, he argued that the sentencing date should have been set on or prior to

June 22. At no time prior to July 10 did he raise any argument as to violation of CTC 2.4.04. "We emphasize that

failure to assert the right will make it difficult for a defendant to prove he was denied a speedy [sentencing] ..."

Barker v. Wingo, supra, 432 U.S. at 532.

As for the fourth factor, prejudice to the defendant, under the facts of the instant case, we find none.

Defendant was not incarcerated pretrial and, we note, is still at large on his personal recognizance. Therefore, to

2

“A more neutral reason such as negligence or overcrowded courts should be weighed less heavily but nevertheless should be considered since

the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” 432 U.S. at 531.

3

“The defendant’s assertion of his speedy trial right ... is entitled to strong evidentiary weight in determining whether the defendant is being

deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy

trial.” 432U.S. at 531.

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dismiss the case would not serve the purpose of preventing oppressive pretrial incarceration. Second, although no

doubt Appellant may have suffered some anxiety and concern due to the eleven- or eighteen-day delay in

sentencing, we find this to be de minimis under the circumstances of this case. Third, since the delay involved in the

instant case was post-plea, it cannot be argued that it limited the possibility that the defense would be impaired.

RIGHT TO DUE PROCESS

We further find no violation of Appellant's due process rights under 25 U.S.C. 1302(8) or CTC 56.02(h).

Although we could envision a case in which a defendant's due process rights might be violated by the Court's

ignoring a Code section involving timing and deadlines, we find that this case does not rise to the level enunciated in

Randall v. Yakima Nation Tribal Court, 841 F.2d 897 (9th Cir. 1988), for several reasons. First, CTC 2.4.04 has no

parallel in state or federal law in terms of a strict deadline for sentencing after the entry of a plea, at least insofar as

any such parallel was made known to this Appellate Panel. Thus, a necessary element in the analysis in Randall,

namely, where Tribal Court procedures "parallel those found ‘in Anglo-Saxon society,’” 841 F.2d 897, 901, does

not exist in the instant case. Moreover, Ms. Randall's fact situation was such that she suffered dire prejudice at the

hands of the Yakima Nation Tribal Court in denying her request that her appeal be heard without payment of the

filing fee, simply because the Tribal Court judge took longer than the deadline imposed on Ms. Randall to rule on

her in forma pauperis motion, which had been filed within the statutory time limits under Tribal Code. Such an

action on the part of the Tribal Court was seen, by the Ninth Circuit Court of Appeals, as arbitrary and capricious

and in violation of Ms. Randall's due process rights. Such facts and circumstances do not exist in the instant case.

SUMMARY AND ORDER

Although we do not approve of the routine violation of time deadlines set by the Colville Tribal Business

Council to process cases in the Colville Tribal Court, nevertheless we cannot find that the provisions of CTC 2.4.04

are jurisdictional, therefore requiring dismissal, with prejudice, of underlying criminal charges when the sixty-day

deadline for sentencing a criminal defendant is not met by the Court. While we can envision a case where dismissal

might be the appropriate remedy, the case at bar is not that case. The Tribal Code is silent on this issue, and there

has been to date no Tribal case law to guide us. No state common law has been brought to our attention which would

bear on this issue. Therefore, using federal analysis, we conclude that (1) the length of delay was minimal; (2) the

cause for delay was court congestion or other administrative problems, and not intentional on the part of the

prosecuting authority; (3) the defendant did not assert his right under CTC 2.4.04 until after the sixty (60) days had

run; and (4) there was no prejudice to the defendant.

We therefore affirm the Tribal Court's denial of Defendant's motion to dismiss and remand to the Tribal

Court for imposition of the sentence already entered.

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Theresa BESSETTE, Appellant,

vs.

COLVILLE CONFEDERATED TRIBES, Appellee.

Case No. AP91-14082, 2 CTCR 01

2 CCAR 26

[Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.

Lin Sonnenberg, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.]

Arguments heard September 10, 1993. Decided December 1, 1993.

Before Chief Judge Miles, Judge Bonga and Judge Chenois.

MILES, C.J.

This case having come before the Colville Tribal Appellate Court on September 10, 1993, for oral

arguments before Judge Edythe Chenois, Judge David Bonga and Judge Wanda L. Miles. Lin Sonnenberg,

Prosecutor, represented Appellee, and Jeff Rasmussen, Public Defender, represented Appellant.

The Court has reviewed arguments of counsel; the case file, number AP91-14082, and all documents

therein; the cassette tape record; and applicable Colville Tribal Law. Upon review of the records this court

concludes the following:

1. Affirms the conviction of the lower court;

2. Vacates the jail term of 1 day.

So Ordered.

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Michael D. STEAD, Appellant,

vs.

COLVILLE CONFEDERATED TRIBES, Appellee.

Case Number AP91-14281, 2 CTCR 02, 21 ILR 6005

2 CCAR 27

[Frank S. LaFountaine, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.

Lin Sonnenberg, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.

Trial Court Case Number 91-14281]

Arguments heard July 9, 1993. Decided December 14, 1993.

Before Chief Judge Collins, Judge Bonga and Judge Baker

COLLINS, C.J.

This criminal appeal was brought before the Appellate Panel by Michael D. Stead, a member of the

Rosebud Sioux Tribe. On October 8, 1991, Stead was convicted in Colville Tribal Court, Fry, J., presiding, of

Driving Without a Valid Driver's License, CTC 9.1.04, a misdemeanor offense which was committed on the Colville

Indian Reservation. Following his conviction at bench trial, Stead was sentenced to a 60 day suspended jail term and

a fine of $300.00.

Stead alleges that the Colville Tribal Court erred in denying his pre-trial motion to dismiss for lack of in

personam jurisdiction. Stead also contends that because the Court lacked jurisdiction to proceed to trial, his civil

rights were violated under the Indian Civil Rights Act (ICRA), 25 U.S.C. Sec. 1301-1303 and the Colville Tribal

Civil Rights Act (CTCRA), CTC 56.01 et seq.

This case arose in the wake of Duro v. Reina, 495 U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990),

during the interim period before Congress finally overturned the United States Supreme Court's holding that tribal

courts lacked criminal jurisdiction over non-member Indians. This appeal raises unique issues concerning Tribal

Court criminal jurisdiction over a non-member Indian following Duro and expiration of temporary legislation

recognizing the Court's jurisdiction. We are also asked to examine the retroactive effect of permanent legislation

enacted following trial.

I.

The facts and procedural history of this case are not in dispute. On August 2, 1991, Michael D. Stead, who

resides in Nespelem, Washington, was cited into Tribal Court by the Colville Tribal Police for the misdemeanor

offense of Driving Without a Valid Driver's License. Stead is a non-member Indian who resided on the Colville

Indian Reservation for ten years prior to the offense. The offense occurred on Star Route 155 within the Colville

Indian Reservation. Stead was arraigned on August 12, 1991, and was appointed a public defender on that date. A

pretrial conference was held on September 23, 1991, and the case proceeded to trial on October 8, 1991.

In his pretrial motion the day of trial, Stead orally moved the Court to dismiss the case for lack of

jurisdiction. Stead's motion was based on the recent expiration of the Act of November 5, 1990, P.L. 101-511, Sec.

8077, 104 Stat. 1892, amending the Indian Civil Rights Act, 25 U.S.C. Sec. 1301. The Act, by which Congress

temporarily overturned the United States Supreme Court's holding in Duro v. Reina, supra, specifically recognized

tribal court criminal jurisdiction over non-member Indians, but expired by its own terms on September 30, 1991.

The appellant's motion to dismiss was denied and Stead was then brought to trial, convicted and sentenced.

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On October 9, 1991, Congress extended the expiration date of P.L.101-511, Sec. 8077 (d) until October 18,

1991. P.L. 102-104, Sect. 1773, 105 Stat. 616. On October 28, 1991, P.L. 101-511, Sec. 8077 was again amended by

striking out subsection (d). P.L. 102-137, 105 Stat. 646. Thus, on October 28, 1991, a federal statute was signed into

law which permanently recognized tribal court criminal jurisdiction over non-member Indians.

II.

The appellant argues that on October 8, 1991, the Tribal Court lacked jurisdiction to proceed to trial in

view of his status as a non-member Indian and because P.L. 101-511, Sec. 8077 had expired on September 30, 1991.

The Appellant also argues that the Tribes cannot rely on either of the two later enactments to validate an action of

the Tribal Court when it lacked jurisdiction. The appellant reasons that reliance on enactments following trial would

violate the prohibition against ex post facto laws found in both the Indian Civil Rights Act, 25 U.S.C. Sec. 1302 (9),

and the Colville Tribal Civil Rights Act, CTC 56.02 (i), and his right to due process and equal protection of the

Tribes' laws under ICRA, 25 U.S.C. Sec. 1302 (8) and CTCRA, CTC 56.02 (h). Further, the appellant contends that

because P.L. 101-511 had expired prior to trial, the Supreme Court's holding in Duro v. Reina, supra, reemerged as

controlling law, and the Tribal Court erred by refusing to dismiss the case for lack of jurisdiction.

III.

We begin with an examination of Duro v. Reina, supra, and the Supreme Court's reasoning which gave rise

to its holding that tribal courts lack criminal jurisdiction over non-member Indians. Duro, a member of the TorresMartinez Band of Cahuilla Mission Indians who lived and worked on the Salt River Indian Reservation, allegedly

shot and killed a member of the Gila River Indian Tribe on the Salt River Indian Reservation. Duro was tried and

convicted in the Pima-Maricopa Indian Community Court for the misdemeanor crime of illegally firing a weapon on

the reservation.

In holding that the tribal court lacked jurisdiction over Duro, a non-member Indian, the Supreme Court

applied its view of limited tribal sovereignty announced in Oliphant v. Suguamish Indian Tribe, 435 U.S. 191, 98

S.Ct. 1011, 55 L.Ed.2d 209 (1978), and in United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303

(1978). The Court reasoned that because Indian tribes have a dependent relationship with the United States, they

lack full territorial sovereignty. The Court has previously held that tribes retain those attributes of sovereignty not

inconsistent with overriding interests of the United States. Washington v. Confederated Tribes of the Colville Indian

Reservation, 447 U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980). The Duro court, however, cited Colville for the

view that non-member Indians, for the most part, stand on the same footing as non-Indians on the reservation. Duro,

495 U.S. at 687.

The Court has long held that tribes have retained the power to "control their internal relations, and to

preserve their own customs and social order." Wheeler, 435 U.S. at 326. A corollary to that principle, which has

been developed by the Court, is that tribes, by virtue of their dependent relationship, were implicitly divested of

certain attributes of sovereignty by virtue of their dependent relationship. Johnson v. McIntosh, 8 Wheat. 543

(1823); Cherokee Nation v. Georgia, 5 Pet. 1 (1831). By this reasoning, the Supreme Court has held that tribes have

been divested of authority to control their external relations by Congress. Wheeler, supra. During recent years, the

Court has taken an increasingly restrictive view of the power retained by tribes. This is reflected in the Court's

opinions concerning the exercise of tribal regulatory and judicial authority. See Oliphant v. Suguamish Indian Tribe,

supra. See also Montana v. United States, 450 U.S. 544, 101S. Ct. 1245, 67 L.Ed.2d 493 (1981); Brendale v.

Confederated Tribes and Bands of the Yakima Nation, 492 U.S. 406, 109 S. Ct. 2994, 106 L.Ed.2d 342 (1989).

It has never been disputed that tribes have the power to prescribe rules of conduct for their own members.

In Duro, the Court held, this authority over tribal internal relations is mainly the result of consent by individual tribal

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members to tribal norms reflected in laws which limit conduct. However, tribal power to punish non-Indians for

criminal conduct on the reservation was held to be control over external relations, which was implicitly divested due

to the dependent relationship of tribes to the United States.

Oliphant, supra. The Court reasoned that because

imposition of criminal jurisdiction is highly intrusive on personal liberty, and non-Indians could not fully participate

in tribal government, they could not consent to punishment for criminal conduct under tribal law.

Following the line of reasoning set forth in Oliphant, the majority in Duro concluded that tribal criminal

jurisdiction over non-member Indians is not consistent with the dependent status of tribes and does not involve

internal self-governance. Id., 495 U.S. at 686.Thus, the Court found that tribal power to assert criminal jurisdiction

over non-member Indians was implicitly divested.

Although the majority in Duro acknowledged its opinion created a substantial jurisdictional void in

application of criminal law within Indian country, it suggested that the problem could be resolved through

application of P.L. 280, Act of August 15, 1953, ch. 505, 67 Stat. 588 (codified as amended at 18 U.S.C. Sec. 1162,

25 U.S.C. Sections 1321-1326, 28 U.S.C. Sec. 1360) or by further action of the Congress.

In his incisive dissenting opinion, Justice Brennan noted that powers of Indian tribes are "inherent powers

of a limited sovereign which have never been extinguished." Wheeler, supra, 435 U.S. at 322. Thus, when Indian

tribes accepted the protection of the United States, those powers which were not necessarily withdrawn by treaty or

statute, or by implication as a necessary result of their dependent status, were retained by the tribes. Id. at 323.

However, only Congress can determine what tribal powers involve a tribe's external relations which are inconsistent

with the overriding interest of the United States.

Although Justice Brennan agreed that exercise of criminal jurisdiction over non-Indians, as the Court held

in Oliphant, was inconsistent with the overriding national interest, he disagreed with the territorial approach to

sovereignty relied upon by the majority to conclude that tribes were less than full sovereigns. Brennan succinctly

pointed out that the majority relied on dictum in Oliphant to extend that principle to non-member Indians. In

addition, the majority relied on Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. at

161, to transmute this dictum to law.

The notion that tribal authority to control conduct of tribal members is based on the "consensual" nature of

tribal membership and ability of members to participate in government was also addressed by Justice Brennan in his

dissenting opinion:

[N]or have we ever held that participation in the political process is a

prerequisite to the exercise of criminal jurisdiction by a sovereign. If such were

the case, a state could not prosecute nonresidents, and this country could not

prosecute aliens who violate our laws.

Duro, 495 U.S. at 707. (Brennan, J. dissenting, Marshall, J. concurring), (citation omitted.)

Justice Brennan astutely noted that Congress has consistently exempted Indian-against-Indian crimes from

federal or state jurisdiction. Id. at 702-704 (dissenting opinion). This practice raises an inference that Congress

intended that tribes would retain power over those crimes involving only Indians. It is also significant that federal

statutes dealing with criminal law in Indian Country do not differentiate between Indians as members or nonmembers. 18 U.S.C. Sections 1152, 1153. See United States v. Kagama, 118 U.S. 375, 383 (1886). See also United

States v. Rogers, 4 How. 567, 573 (1846).

The jurisdictional void created by the majority in Duro renders its analysis suspect. The conclusion reached

by the majority should be based upon an expression of congressional intent in the exercise of its plenary power in

Indian affairs. Thus, the question which must be asked is whether the Congress intended that no sovereign would

have the power to prosecute an entire class of crimes in Indian country. Because it is highly unlikely Congress

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intended to create such a chaotic state of affairs, serious doubt is cast upon doctrine developed by the Court which

leads to that result.

IV.

Justices Brennan and Marshall were not alone in their disagreement with the Supreme Court's majority in

Duro. Tribal governments were faced with a major dilemma in how to effectively enforce their laws. Both Congress

and affected federal agencies soon became aware of the Court's holding and were required to deal with the

jurisdictional morass following Duro. Recognizing that the Court's reasoning and holding in Duro strayed far

beyond what it had ever expressly or impliedly intended, and in response to grave law and order concerns

throughout Indian country, Congress acted. Congress enacted three statutes amending ICRA which clarified its

views concerning tribal exercise of criminal jurisdiction over non-member Indians and overturned the Court in

Duro.

The Department of Defense Appropriations Act, 1991, P.L. 101-511, Section 8070 (b), (c) and (d), was

enacted on November 5, 1990. The statute amended the Indian Civil Rights Act, 25 U.S.C. Sections 1301-1303, in

relevant part, to read as follows:

Section 1301 (2) "Powers of Self-Government" means and includes all

governmental powers possessed by an Indian tribe, executive, legislative, and

judicial, and all offices, bodies and tribunals by and through which they are

executed, including courts of Indian offenses; and means the inherent power

of Indian tribes, hereby recognized and affirmed, to exercise criminal

jurisdiction over all Indians; (emphasis provided);

Section 1301 (4) "Indian" means any person who would be subject to the

jurisdiction of the United States as an Indian under section 1153, title 18, United

States Code, if that person were to commit an offense listed in that section in

Indian country to which that section applies.

Section 1301 (4) was added as a new subsection to ICRA. In addition, Section 8077 (d) provided that:

(d) The effects of subsections (b) and (c) as those subsections affect the criminal

misdemeanor jurisdiction of tribal courts over non-member Indians shall have

no effect after September 30, 1991. (emphasis provided.)

The legislative history of the Act reflected in the Conference Report on Sections 8070 (b) and (c) shows the

legislation was enacted in response to an emergency situation in Indian country as a result of the holding in Duro v.

Reina, which threw 200 years of misdemeanor criminal jurisdiction into chaos. It was clearly noted that tribes had

traditionally exercised criminal jurisdiction over all Indians on their reservations and that Duro had altered that

traditional pattern of jurisdiction. H.R. Conference Report No. 938, 101st. Cong., 1st Sess. 233 (1990).

Although P.L. 101-511 was emergency legislation enacted as a temporary solution to law and order

problems in Indian country resulting from Duro, the legislative history reveals that Congress intended to enact more

comprehensive legislation. This recognition of tribal sovereignty is consistent with the Congress's constitutionallybased plenary power over Indian affairs, and two hundred years of Federal law enacted by the Congress which

recognizes jurisdiction of tribal governments over Indians in Indian country. Id.

Significantly, Congress was aware of past Federal policy and the practice of settling more than one tribe on

a single reservation under the governance of a single tribal government. Congress also recognized that although nonmember Indians are not allowed to fully participate in all aspects of tribal government, they are provided a broad

array of services by the governing tribe and by the Federal government. Thus, it appears that, regardless of the

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mixed jurisdictional history over non-member Indians discussed by the Court's majority in Duro, Congress

unambiguously clarified historical federal policy.

On October 9, 1991, Congress enacted P.L. 102-104, Section 1773, 105 Stat. 616, the second temporary

statute overturning the effects of the Supreme Court's holding in Duro. The statute was enacted during congressional

debates over the nature and content of additional legislation needed to resolve jurisdictional problems created by

Duro. The Act also extended the expiration date of Section 8077 (d) from September 30, 1991, to October 18, 1991.

The Act reads as follows:

SECTION 1. AMENDMENT.

Section 8077 (d) of the Department of Defense Appropriations Act, 1991

(Public Law 101-511), is amended by deleting "September 30, 1991" and

inserting in lieu thereof "October 18,1991."

Finally, on October 28, 1991, P.L. 102-137, 105 Stat. 646, was signed into law. The Act amended P.L. 101511 Sect. 8077 by striking out subsection (d) and making permanent the legislative reinstatement of the power of

Indian tribes to exercise criminal jurisdiction over Indians.

The Joint Explanatory Statement in H.R. Rep. 261, 102d Cong., 2d Sess. (reprinted in 1991 U.S. Code

Cong. & Ad. News 379), which accompanied H.R. 972, sets out the clear intent of Congress in enacting P.L. 102137. Significantly, the Act was not a delegation of power to tribes, but "[c]larifies and reaffirms the inherent

authority of tribal governments to exercise criminal jurisdiction over all Indians on their reservations." Id. at 3.

Moveover, the Congress expressly recognized it has the authority through its plenary power over Indian affairs to

correct the Supreme Court's misinterpretation of congressional intent concerning tribal sovereignty. Thus, this

legislative reinstatement of tribal authority was a recognition of a crucial element of tribal sovereignty which was

never divested.

In light of the foregoing judicial and legislative background, we now turn to the specific issues presented

on this appeal.

V.

Stead contends his conviction cannot stand because both statutes are ex post facto laws under ICRA, 25

U.S.C. Sec. 1302 (9) and CTCRA, CTC 56.02 (i). The prohibition is rooted in the United States Constitution. U.S.

Const. Article I, Sec. 9, cl. 3; Article I, Sec. 10, cl. 1. The ban forbids the Congress and states from enacting any law

"which imposes a punishment for an act which was not punishable at the time it was committed; or imposes

additional punishment to that then prescribed." Weaver v. Graham, 450 U.S. 24, 28, 101 S. Ct. 960, 964, 67 L.Ed.2d

17, 22 (1981), citing Cummings v. Missouri, 4 Wall 277, 325-326, 18 L. Ed. 356 (1867).

The prohibition is designed to give fair warning of legislative acts to the public which can be relied upon.

Dobbert v. Florida, 432 U.S. 282, 298, 97 S. Ct. 2290, 53 L.Ed.2d 344 (1977). The ban constitutionally prohibits

Congress and states from enacting arbitrary and potentially vindictive legislation after the fact. Mallory v. South

Carolina, 237 U.S. 180, 183, 35 S.Ct. 507, 59 L.Ed. 905 (1915); Fletcher v. Peck, 6 Cranch 87, 138, 3 L.Ed. 162

(1810).

In Calder v. Bull, 3 Dall 386, 396, 1 L.Ed 648 (1798), Justice Chase explained the reach of the ex post facto

prohibition:

1st. Every law that makes an action done before the passing of the law, and

which was innocent when done, criminal. 2d. Every law that aggravates a crime,

or makes it greater than it was, when committed. 3d. Every law that changes the

punishment, and inflicts a greater punishment, than the law annexed to the

crime, when committed. 4th. Every law that alters the legal rules of evidence,

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and receives less, or different, testimony, than the law required at the time of the

commission of the offense, in order to convict the offender.

Collins v. Youngblood, 497 U.S. 37, 41, 110 S. Ct. 2715, 111 L.Ed.2d 30 (1990).

The federal courts have also held that any procedural change in how a criminal case is adjudicated may

violate the prohibition if it deprives the defendant of substantial protections of law which were in effect when the

crime was committed. Duncan v. Missouri, 152 U.S. 377, 382-83, 14 S.Ct. 570, 38 L.Ed. 485 (1894). The

prohibition may also be violated if a law arbitrarily infringes upon "substantial personal rights" of the accused.

Mallory v. South Carolina, 237 U.S. at 183. A later enacted law which deprives one charged with a crime of any

defense available according to the law at the time when the act was committed, is prohibited. Beazell v. Ohio, 269

U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925).

The United States Supreme Court has held that an ex post facto law, by its lack of fair warning that certain

conduct is criminal, violates the due process clause of the Fifth Amendment. Marks v. United States, 480 U.S. 188,

191, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977).

Although the ex post facto prohibition was made applicable to states through the Fourteenth Amendment,

United States v. Harris, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L. Ed. 989 (1954), this is not the case with tribes. See

Talton v. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196 (1896). The prohibition was made binding upon the

Colville Confederated Tribes through the Indian Civil Rights Act, 25 U.S.C. Sec. 1302 (9) and through the Colville

Tribal Civil Rights Act, CTC 56.02 (i).

Two elements must be present for a criminal law to be classified as an ex post facto law. The law must be

retrospective, i.e., applicable to events occurring before its enactment, and it must disadvantage the offender.

Weaver v. Graham, 450 U.S. at 29. Thus, both elements must be present in order to find that P.L. 102-104 and P.L.

102-137 violate the prohibition.

We first note that both ICRA amendments were enacted after the date when the offense was committed.

However, neither was enacted during the intervening period between when the offense was committed and trial.

Therefore, the Trial Court did not rely on either amendment as a source of jurisdiction over Stead. Further, neither of

the 1991 amendments have been used to enhance the punishment imposed on Stead or to deprive him of a

substantial personal right.

By its express terms, P.L. 102-104 extended the expiration date of the statute by which Congress

recognized tribal court jurisdiction over Stead. Therefore, we believe the law was retrospective. Although Congress

did not expressly say so, we have no question that the effects of P.L. 102-137 related back to October 19, 1991. The

1990 Amendment to ICRA by P.L. 101-511, Sec. 8077 (a), clearly shows that Congress "recognized and affirmed"

the inherent power of Indian tribes to exercise criminal jurisdiction over all Indians. See ICRA, 25 U.S.C. Sec. 1301

(2).

Both the 1990 and 1991 amendments to ICRA enacted in response to Duro are jurisdictional, not penal.

However, they have the effect of altering the rights of non-member Indian criminal defendants from what the

Supreme Court found them to be. Therefore, for purposes of this analysis, we will assume without deciding that the

ICRA amendments are of such a character to fall within the purview of an ex post facto.

The 1991 ICRA amendments are retrospective in that they extend the jurisdiction of tribal courts over nonmember Indians from the expiration date of P.L. 101-511 forward. However, in this case the Tribal Court brought

Stead to trial prior to when P.L. 102-104 or P.L. 102-137 became effective. Therefore, the retrospective nature of the

1991 amendments were not relied upon by the Tribal Court as a basis for proceeding to trial.

In addition, neither of the 1991 ICRA amendments disadvantage the Appellant by imposing greater

punishment for the offense with which Stead was charged than at the time it was committed. Therefore, neither P.L.

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102-104 nor P.L. 102-137 makes more onerous the punishment for a crime committed before its enactment. Weaver

v. Graham, 450 U.S. at 30-31. The amendments did not deprive Stead of substantial protections of law in effect at

the time the crime was committed. Duncan v. Missouri, supra. Likewise, neither arbitrarily infringed upon Stead's

substantial personal rights. Mallory v. South Carolina, supra. Nor did the amendments deprive Stead of a defense

available according to the law in effect when the offense was committed. Beazell v. Ohio, supra.

On the date of his offense, Stead had notice that he was prohibited by CTC 9.1.04 from operating a motor

vehicle on the Colville Indian Reservation without a valid driver's license. He was also on notice that the Congress

had enacted P.L. 101-511 and that the Colville Tribal Court could exercise criminal jurisdiction over him for

prohibited conduct on the reservation.

From the foregoing, the Panel finds the ex post facto prohibition does not apply to P.L. 102-104 or P.L.

102-137, which were neither enacted prior to Stead's trial nor relied upon by the Court as a source of jurisdiction.

VI.

We also believe that from the legislative history of P.L. 101-511, P.L. 102-104 and P.L. 102-137, there can

be no question Congress recognized that tribal courts have always possessed inherent authority to exercise

misdemeanor criminal jurisdiction over all Indians. This inherent authority was retained by tribes despite their

dependent relationship with the United States. Further, the inherent jurisdictional authority of tribes is not a power

delegated to tribes by the Congress. Further, the Congress made it abundantly clear that tribes have never been

expressly or impliedly divested of such authority. See H.R. Conf. Rep. No. 938, 101st Cong., 1st Sess., 233. See

also 137 Cong. Rec. E2165-04 (statement by Rep. Geo. Miller of California); 137 Cong. Rec. H2988-02 (Report on

H.R. 972).

Regardless of the conclusions reached by the Court based upon its analysis of a mixed history concerning

tribal court jurisdiction in Duro, the legislative history of the ICRA amendments makes it clear that the Court

misinterpreted the Congress' intent with regard to the reach of tribal court jurisdiction over Indians within Indian

country. As the legislative history reveals, that view is supported by many years of federal legislation dealing with

jurisdiction in Indian country, H.R. Conf. Rep. No. 938, supra, and the fact that Congress did not distinguish

between Indians based on tribal membership. See 10 Stat. 270, ch. 30 (codified at 18 U.S.C. Sec. 1152). See also

United States v. Rogers, supra. This view is consistent with the dissenting opinion in Duro, supra.

We are not alone in reaching the conclusion that tribal courts have inherent authority to exercise criminal

jurisdiction over all Indians on their reservations regardless of the holding in Duro, supra. In Mousseaux v. U.S.

Commissioner of Indian Affairs, et al., 806 F. Supp. 1433, 20 ILR 3015 (1992), the Federal District Court for the

District of South Dakota also addressed the retroactive effect of the same amendments to ICRA on tribal court

misdemeanor jurisdiction over non-member Indians.

That case was a civil lawsuit brought by a member of the Oglala Sioux Tribe against the Commissioner of

Indian Affairs, the Chief Judge of the Rosebud Sioux Tribe, the Tribal Prosecutor and others. Mousseaux was

arrested by Bureau of Indian Affairs officers and charged with a misdemeanor under tribal law on February 25,

1990, and held in the Rosebud Tribal Jail until April 24, 1990. The Supreme Court decided Duro on May 29, 1990.

In his action for damages, Mousseaux alleged inter alia that he was denied due process. A threshold issue to his due

process claim was whether the Rosebud Sioux Tribe had criminal jurisdiction over Mousseaux during the time he

was arrested and held on tribal charges.

In determining whether the United States and the Tribe had criminal jurisdiction to arrest and hold

Mousseaux, the Court found that the effect of Duro was retroactive. However, that did not end the analysis. After

engaging in a lengthy summary of the legislative history of P.L. 101-511, P.L. 102-104 and P.L. 102-137, the Court

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reached the following conclusions about the clear intent of Congress in enacting these amendments to ICRA, Sect.

1301.

(1) the amendments were intended to nullify Duro, (2) the amendments were not

a new delegation of power to tribal courts from Congress, and (3) the

amendments were a recognition of the inherent criminal jurisdiction of tribal

courts over nonmember Indians, which jurisdiction had always existed and

which continued uninterrupted, despite the Duro decision.

(emphasis provided.) Mousseaux, 806 F. Supp.1433, , 20 ILR 3015, 3020 (citations omitted). See S. Rep. No. 168,

102 Cong., 1st Sess. (1991)

The Court also found, in nullifying Duro and reinstating tribal court jurisdiction over non-member Indians,

that it was Congress's intent to form an unbroken line of criminal jurisdiction extending back into history as if Duro

had never happened. Id. Accordingly, the Court held that the tribe had misdemeanor jurisdiction over Mousseaux.

Based on the foregoing, the Panel holds that the Tribal Court had inherent authority to exercise

misdemeanor criminal jurisdiction over Stead on October 8, 1991, when he was brought to trial.

VII.

The Appellant also argues that under the common law doctrine of abatement as applicable to criminal

prosecutions, the Tribal Court lacked jurisdiction to bring his case to trial. Under this theory, in criminal

prosecutions which have not reached final disposition before the relevant criminal statute was repealed or expired,

the defendant's criminal liability is extinguished. United States v. Tynen, 11 Wall 88, 20 L.Ed 153 (1870).

In order to avoid operation of the abatement doctrine, many state legislatures have enacted savings statutes

which preserve criminal liability and authority of the court to impose penalties for offenses committed prior to

repeal or expiration of the criminal statute. Bell v. Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L. Ed.2d 822 (1964).

A broad savings statute of this type has been enacted by the Congress. The general federal savings statute

provides as follows:

Expiration of a temporary statute shall not have the effect to release or

extinguish any penalty, forfeiture or liability incurred under such statute unless

the temporary statute shall expressly so provide, and such statute shall be treated

as still remaining in force for the purpose of sustaining any proper action or

prosecution for the enforcement of such penalty, forfeiture or liability.

1 U.S.C. Sec. 109. The statute was enacted to abolish the common law presumption that repeal of criminal statutes

results in abatement of pending prosecutions. Warden, Lewisburq Penitentiary v. Marrero, 417 U.S. 653, 41L.Ed.2d

383, 94 S.Ct. 2532 (1974).

Our inquiry is whether 1 U.S.C. Sec. 109 preserved the Tribal Court's jurisdiction over Stead commenced

under P.L. 101-511, Sec. 8077, and his criminal liability arise from CTC 9.1.04.

The relevant language in the 1990

amendment to ICRA for purposes of this analysis is:

The effects of subsections (b) and (c) as those subsections affect the criminal

misdemeanor jurisdiction of tribal courts over non-member Indians shall have

no effect after September 30, 1991.

P.L. 101-511, Sect. 8077 (d), 25 U.S.C. Sec. 1301 (4). Specifically, application of the savings statute depends on

whether Section 8077 (d), as stated above, can be read as expressly releasing or extinguishing any penalty, liability

or forfeiture after September 30, 1991. See Barker v. Chesapeake & Ohio R.R., 959 F.2d 1361, 1366 (6th cir. 1992).

The Panel agrees with the Tribes' view that, by any reasonable reading, the sunset provision of Section

8077 (d) does not expressly provide that criminal liability in pending prosecutions based on the statute will be

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abated at expiration of the statute. Although P.L. 101-511 is a jurisdictional statute, a similar result was reached in

Barker.

The fact that the Colville Tribal Code contains no savings statute does not change the analysis. The statute

in question here is a federal jurisdictional statute, and we look to principles of federal law to determine whether 1

U.S.C. Sec. 109 prevents abatement of Stead's prosecution which otherwise might have occurred due to the sunset

provision in P.L. 101-511, Sec. 8077 (d). We find that 1 U.S.C. Sec. 109 provided for the continued prosecution of

Stead after September 30, 1991.

VIII.

The appellant's argument that his right to due process and equal protection of the Tribes' laws under ICRA,

25 U.S.C. Sec. 1302 (8) and CTCRA, CTC 56.02 (h), appear to turn on two points. The first is whether the 1991

ICRA amendments violate the ex post facto prohibition and; secondly, whether the Tribal Court retained jurisdiction

to proceed to trial. Although the briefing on these points has been, at best, scantly developed, we will address the

obvious due process and equal protection issues raised in the appellant's core arguments.

The due process clauses of ICRA and CTCRA ensure that all persons coming before the Court will be

treated fairly. Thus, when a court proceeds to trial without jurisdiction over the defendant or the case, the

defendant's due process rights have been violated. A criminal defendant is also denied due process when convicted

of violating a criminal statute, enacted after the offense, which gives rise to enhanced punishment or was for conduct

not prohibited when the act was committed. Weaver v. Graham, supra. In addition, when the court departs from its

established procedural rules to deprive a criminal defendant of a vested right, the defendant's right to due process is

implicated. Randall v. Yakima Nation Tribal Court, 841 F.2d 897 (9th cir. 1988).

We have found that the Tribal Court retained jurisdiction to bring Stead to trial following expiration of P.L.

101-511. On the date of the offense, Stead was on notice that the Tribal Court could properly exercise criminal

jurisdiction over him and that his conduct was prohibited by tribal law. We have concluded that neither P.L. 102-104

nor 102-137 were ex post facto laws and there has been no issue raised which would show that the Tribal Court

departed from existing procedure. Therefore, we conclude that Stead's due process rights were not violated.

The Appellant's equal protection argument may well be based on his contention that the Tribal Court lacked

jurisdiction to bring him to trial. In Duro v. Reina, supra, the Court found that the defendant was denied equal

protection of the Tribe's laws because the Tribal Court lacked jurisdiction by virtue of his status as a non-member

Indian. Because we have found the Tribal Court properly exercised its jurisdiction over Stead by bringing him to

trial, he was not denied equal protection of the Tribes’ laws.

We do not accept the argument that Stead was denied equal protection of the Tribes' laws based upon his

interpretation of CTC 1.3.01 and CTC 1.13.01, which state, in relevant part, that "criminal jurisdiction of the tribal

court shall not extend to trial of non-Indians." Stead is a member of the Rosebud Sioux Tribe and the statute was

never amended to exempt non-member Indians from tribal court jurisdiction following Duro.

For the reasons stated above, the judgment against the Appellant is Affirmed.

Page Intentionally Left Blank

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Sylvester SAM, Appellant,

vs.

COLVILLE CONFEDERATED TRIBES, Appellee.

Case Number AP93-15379/80, AP93-15414/15, 2 CTCR 04, 21 ILR 6040

2 CCAR 37

[Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.

Lin Sonnenberg, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.

Trial Court Case Number 92-15379, 92-15380, 92-15414, 92-15415]

Argued October 8, 1993. Decided March 8, 1994.

Before Chief Judge Collins, Judge Bonga and Judge Nelson

COLLINS, C.J.

These criminal appeals were brought before the Appellate Panel, consisting of Judges David Bonga, Dennis

Nelson, and Brian Collins for review of sentencing. On October 8, 1993 during oral argument in Cases AP92-15379

and AP92-15380, the Panel granted the appellant's motion, without objection, to consolidate AP92-15414 and

AP92-15415 for purposes of appeal.

We have been asked to review the sentencing procedure and sentences imposed by the Tribal Court in these

cases to determine whether the appellant's civil rights were violated under the Indian Civil Rights Act (ICRA), 25

U.S.C. 1301-1303 and the Colville Tribal Civil Rights Act (CTCRA), CTC 56.02 et seq. Specifically, the appellant

alleges that he was denied due process of law in sentencing pursuant to ICRA, 25 U.S.C. 1302 (8) and CTCRA,

CTC 56.02(h). The appellant also alleges that the sentences imposed are excessive and violate his right to be free

from cruel and unusual punishment pursuant to ICRA, 25 U.S.C. Sec. 1302 (7) and CTCRA, CTC 56.02 (g).

The appellant asks the Panel to reverse each of the judgments against him or, in the alternative, remand

each case for resentencing.

I.

The procedural history of the above cases is as follows: In AP92-15379 and AP92-15380, Sam was

convicted at bench trial, on March 4, 1993, Fry, J., presiding, of Driving While Intoxicated, CTC 9.1.01 and Driving

While License Suspended, CTC 9.1.05. The Court ordered a presentence investigation and on April 26, 1993 Sam

was sentenced to a jail term of 360 days, with credit for four days served, and a fine of $2,500.

In cases AP92-15414 and AP92-15415, Sam was convicted at bench trial on January 15, 1993, Fry, J.,

presiding, of Driving While Intoxicated, CTC 9.1.01 and Driving While License Suspended, CTC 9.1.05. The Court

ordered a presentence investigation and on March 8, 1993, Sam was sentenced to a jail term of 360 days, with credit

for 55 days served, to be served concurrently with any current incarceration. The court also imposed a fine of $2,500

which was conditionally suspended. The appellant preserved the same issues for appeal as in AP92-15379 and

AP92-15380.

Our review of the record at sentencing in cases AP92-15379 and AP92-15380 reveals that Sam's counsel

objected to the validity of some of the criminal convictions shown in the Presentence Investigation Report (PSIR)

and the sentencing judge's finding that Sam had eight previous DWI convictions. Although counsel admitted that

Sam had been previously convicted of five DWI's, he argued that at least some of the convictions were

constitutionally invalid because Sam was not represented by counsel. The record does not show which of Sam's past

convictions were challenged for purposes of sentencing.

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The record also shows that the sentencing judge closely questioned the appellant's counsel about the basis

for his argument that Washington law should apply to sentencing in the Tribal Court. Counsel advanced the theory

that because the term "sentence" is not defined in the Colville Tribal Law And Order Code, the Principles Of

Construction, CTC 1.1.07(e), direct the Court to adopt Washington sentencing law to give meaning to the term.

Counsel also argued that before Sam's past convictions can be used in sentencing, the Tribes must show by a

preponderance of the evidence that such convictions are valid and furnish the Court with certified copies of the

judgments. The Washington Supreme Court case of State v. Ammons, 105 Wn.2d 175 (1986) was cited in support of

the above arguments. Sam moved to continue sentencing until the sentencing judge had an opportunity to review the

case.

The Court also asked Appellant's counsel to explain Ammons in view of his argument that unrepresented

convictions are constitutionally infirm when used to enhance sentences in Tribal Court. Upon further inquiry to

clarify Counsel's specific objection use of Sam's criminal history in sentencing, the sentencing judge asked Counsel

whether he was referring to convictions in which the appellant was denied the right to counsel or was simply

unrepresented. Appellant's counsel explained that under Washington law any criminal conviction of an

unrepresented indigent defendant is deemed constitutionally invalid for use in future sentencing. However, Counsel

was unable to provide the Court with specific authority extending that rule to the Tribal Court. The sentencing judge

then found that Washington law does not apply to sentencing in the Tribal Court, denied Counsel's motion to

continue, and proceeded with sentencing.

After the Tribal Prosecutor presented a lengthy recitation of Sam's criminal history, the Court found that he

had 8 previous DWI convictions, one conviction for Driving While License Suspended, and one conviction for

Possession of a Controlled Substance. In light of the above criminal history, the Court found it unnecessary to

consider any further DWI convictions, including those during 1986 through 1988, for purposes of sentencing. The

Court then followed the Tribes' recommendation in sentencing and, for both the DWI and Driving While Suspended,

imposed a jail term of 360 days, with credit for 4 days served, and a fine of $2,500.

We have recently addressed many of the issues raised on this appeal in David L. St. Peter v. Colville

Confederated Tribes, 20 I.L.R. 6108, [AP93-15400/507-510, 1 CTCR 75, 2 CCAR 2], (1993). Therefore, our review

of the issues raised in the instant cases will be discussed in view of our opinion in St. Peter.

II.

We have held that the Principles of Construction, CTC 1.1.07(e), do not require that the Tribal Court adopt

Washington sentencing law in order to give meaning to the term "sentence." Therefore, we hold that the Tribal

Court did not err in rejecting that application of the Principles of Construction. We also hold that the Court did not

err in refusing to follow the principles set forth in Ammons, which construes the rights of a criminal defendant in

sentencing under Washington law.

We have also held that where a violation of civil rights is alleged in criminal sentencing, our inquiry does

not lead us to apply Washington law. Because the civil rights of a criminal defendant appearing before the Tribal

Court is grounded in ICRA, 25 U.S.C. Sec. 1301-1303, and CTCRA, CTC 56.01 et seq., our frame of reference for

this analysis is the Constitution of the Colville Confederated Tribes, tribal statutes, Tribal Court procedure, and

ICRA. As we said in St. Peter, supra, the origin of a defendant's federal civil rights in Tribal Court is statutory,

presumably arising from the Indian Commerce Clause of the United States Constitution, Article I, Sec.8, Cl. 3. By

adopting ICRA, the Congress selectively incorporated certain provisions of the Bill of Rights with knowledge that

other provisions based upon tribal law would be used to define the guarantees arising under ICRA. Although some

of those protections appear to be the same as those provided by the Bill of Rights, we believe ICRA must be applied

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against a backdrop which includes the tribal Constitution, tribal statutes, tribal court procedures, all of which are the

product of a tribal system which has maintained its ties with custom and tradition.

To place ICRA in perspective for this analysis, we note that the Act was enacted to provide those appearing

before tribal courts with certain protections from the Bill of Rights while fostering tribal self-government, and not to

impose the full Bill of Rights on tribes. Therefore, when applying common law principles based upon the Bill of

Rights to civil rights issues arising from ICRA and tribal law, we do so with considerable care. Federal common law

doctrine which interprets duties and protections flowing from the United States Constitution and the Bill of Rights

did not include in its development, and is not rooted in tribal law, custom and tradition. Therefore, we will examine

how the federal courts have handled similar constitutionally-based issues, but because the origins of tribal law differ,

any parallels between federal common law and tribal law must be drawn with caution. Accordingly, we will

narrowly adopt such common law interpretations when we are fully satisfied they are consistent with tribal law.

III.

A sentencing judge has broad discretion in the information which may be considered in sentencing. CTC

2.6.07. Tribal sentencing procedure does not require that the court apply rules of evidence to restrict the information

it considers at sentencing. Because the Tribal Business Council gave broad discretion to the trial judge to determine

what information about the defendant it may consider in criminal proceedings, it is inconceivable that a sentencing

judge would be bound by rules of evidence to limit information which may be considered at sentencing. See CTC

2.6.02. We therefore reject Appellant's argument that a sentencing judge is restricted by rules of evidence in

sentencing.

We have held that a criminal defendant has a due process right to be sentenced on the basis of accurate

information. St. Peter, at 6111. In order to prevail on a due process challenge, the defendant must show that

misinformation of a constitutional magnitude was given to the court and that such information was given specific

consideration by the sentencing judge. Id. The defendant must show that the information relied upon by a sentencing

judge lacks "some minimal indicum of reliability beyond mere allegation." See United States v. Matthews, 773 F.2d

48, 51 (3rd Cir. 1985). See also United States v. Monaco, 852 F.2d 1143, 1149 (9th Cir. 1988).

We are not convinced that information considered by the sentencing judge concerning Sam's criminal

history "lacks some minimal indicium of reliability beyond mere allegation", or that the Court's consideration of

such information raises questions of a constitutional magnitude requiring intervention by the Panel. Id. We reject the

principle advanced by the appellant that the Tribes must show by a preponderance that information used in

sentencing is accurate before such information may be relied upon by a sentencing judge. That principle represents

an inaccurate statement of both federal and tribal law. It is the defendant that bears the burden of showing that

inaccurate information was relied upon in sentencing. United States v. Tooker, 747 F.2d 975, 978-80 (5th Cir. 1984),

cert. denied, 471 U.S. 1021, 105 S.Ct. 2032, 85 L.Ed.2d 314 (1985). From our review of the record at sentencing,

we hold information relied upon by the Tribal Court in sentencing was inaccurate or unreliable.

IV.

We next turn our attention to whether the Trial Court erred in denying the appellant's motion to continue

sentencing. Although the defendant may request the court to convene a separate evidentiary hearing in order to rebut

information contained in a PSIR, the defendant does not have an absolute right to such a hearing. A sentencing

judge's denial of a request for an evidentiary hearing for that purpose is subject to review for abuse of discretion. See

St. Peter, 20 I.L.R. at 6112, citing United States v. Monaco, 852 F.2d 1143, 1148 (9th Cir. 1988). In that regard, we

must determine whether the trial judge's decision to proceed with sentencing abridged the Appellant's due process

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right to rebut information used in sentencing. See St. Peter at 6111, citing United States v. Shepherd, 739 F.2d 510,

515 (10th Cir. 1984); United States v. Papajohn, 701 F.2d 760, 763 (8th Cir. 1983); United States v. AqueroSegovia, 622 F.2d 131, 132 (5th Cir. 1980). See also United States v. Matthews, 773 F.2d 48 (3d Cir. 1985).

The record shows that the appellant's counsel asked to continue sentencing in order to give the sentencing

judge an opportunity to review State v. Ammons, supra, and consider whether Washington law should apply to

sentencing in Tribal Court. Thus, Appellant's request to continue sentencing was to clarify what law should govern

the information used and the procedure to be followed should govern the information used and the procedure to be

followed in sentencing. The appellant did not ask the Court to convene a separate evidentiary hearing to rebut

information in his criminal history used in sentencing.

Although application of Washington law would likely change what information could be considered in

sentencing, Appellant's counsel was unable to provide the Court with persuasive authority to support the argument

that State law should control sentencing in Tribal Court. After rejecting Counsel's argument that based on the

Principles of Construction, CTC 1.1.07 (e), Washington law should apply to sentencing in Tribal Court, the Court

proceeded with sentencing. Although the appellant was decidedly opposed to use of his criminal history in

sentencing, he attempted to avoid use of past convictions by advancing a procedural argument as to what substantive

criminal sentencing law should control rather than challenging the accuracy of specific criminal convictions. We

note that the record below provides additional support for that conclusion. In response to Appellant's objection to the

Court's use of his entire criminal history in sentencing, the sentencing judge asked Appellant's counsel to explain

which of the appellant's convictions were constitutionally invalid and to explain why. It appears to the Panel that

Appellant's counsel was unable to provide the sentencing judge with specific information about each of Appellant's

convictions, other than lack of representation, which would lead the Court to conclude that they were

constitutionally invalid.

We have previously held that, as a matter of due process, a criminal sentence may not be based upon prior

unrepresented convictions where the defendant was not advised of his right to counsel or was improperly denied his

right to counsel. St. Peter at 6111 (citations omitted). A criminal defendant's right to due process is not violated

simply because uncounseled criminal convictions are used by the court in sentencing. Id. It is the Appellant's burden

to bring to the sentencing court's attention the additional, specific grounds why uncounseled convictions were

unconstitutionally obtained and should not be used in sentencing. Where the defendant had an opportunity to

examine and correct controverted information in sentencing, and request an evidentiary hearing, but failed to do so,

the error is counsel's and not the court's. See United States v. Barnhart, 980 F.2d 219, 226 (3rd Cir. 1992), citing

United States v. Matthews, 773 F.2d 48, 51 (1975).

In view of our holding in St. Peter, we find that the Tribal Court did not error in using uncounseled

criminal convictions in sentencing. The appellant has made no showing that the criminal convictions relied upon by

the sentencing judge were improperly obtained pursuant to tribal law. The appellant has not shown, for example, in

the convictions used in sentencing that the Court failed to inform him of his right to counsel or improperly denied

his right to counsel.

From our review of the record, the Panel holds that the sentencing judge's denial of Appellant's motion to

continue sentencing did not deprive him of a fair opportunity to rebut or explain the information being considered by

the Court for imposing sentence. Appellant did not request an evidentiary hearing to prove the information contained

in the PSIR concerning his criminal history was inaccurate. Rather, Appellant advanced a procedural argument,

based upon state law, that certain criminal convictions referenced in the PSIR were constitutionally invalid because

he was unrepresented. Moreover, the appellant has not shown that he was denied a fair opportunity to review

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information contained in the PSIR or other information brought before the Court. Accordingly, we also hold that the

appellant did not carry his burden of rebutting the accuracy of information considered by the Court in sentencing.

V.

We next address the appellant's argument that the sentences imposed by the Tribal Court are excessive and

violate the prohibition against cruel and unusual punishment. ICRA, 25 U.S.C. Sec. 1302 (7), CTCRA, CTC 56.02

(g). Our review on this issue will focus on whether the punishment imposed by the Tribal Court was so

disproportionate for the crimes involved that it is shocking to the sense of justice. St. Peter at 6115.

A criminal sentence imposed within statutory limits is generally not reviewable by an appellate court. Id. at

6613 (citations omitted). A particular sentence imposed within the limitations imposed by statute and the

Constitution is within the discretion of the court. However, the Panel will review the sentencing process to ensure

that the court has exercised its discretion, United States v. Wardlaw, 853 F.2d 932 (lst Cir. 1978), and that the court

has not manifestly or grossly abused its discretion. Giblin v. United States, 523 F.2d 1349 (8th Cir. 1975), cert.

denied 424 U.S. 971, 96 S.Ct. 1470, 47 L.Ed.2d 759.

The misdemeanor offenses of Driving While Intoxicated and Driving While License Suspended each carry

a maximum sentence of 360 days in jail and a fine of $2,500. In cases AP92-15379 and AP92-15380 Sam was

sentenced to a jail term of 360 days, with credit for 4 days served, and a fine of $2,500 for both offenses. In cases

AP92-15414 and AP92-15415 Sam was sentenced to a jail term of 360 days, with credit for 55 days served, and a

fine of $2,500, which was conditionally suspended, with the sentence to run consecutive to any other incarceration.

Thus, Sam received far less than the maximum sentences for the four cases on this appeal, which is 1,440 days in

jail and $10,000 in fines.

It is clear that the sentences imposed for the four cases falls well within the statutory limits prescribed by

the Tribal Business Council in CTC 9.2.01(b) and ICRA 25 U.S.C. Sec. 1302(7). Moreover, from Sam's lengthy

criminal history and repeated involvement with alcohol treatment, we do not believe that imposition of two

consecutive 360 day jail terms and a fine of $2,500 represents a failure of the trial judge to exercise discretion or a

manifest or gross abuse of sentencing discretion. See United States v. Small, 636 F.2d 126 (5th Cir. 1981). Further,

because repeated efforts to rehabilitate the appellant through substance abuse treatment were unsuccessful, it cannot

be said that the trial judge, by imposing jail terms, failed to individualize sentencing to the extent that the

punishment was arbitrarily and capriciously imposed. In fact, the record from sentencing shows that the trial judge

was satisfied there was sufficient information available to meaningfully exercise her sentencing discretion without

considering any additional criminal convictions the appellant might have had between 1986 and 1988.

Given the appellant's lengthy criminal history, failed attempts at rehabilitation, and the statutory penalties

for the offenses involved, we do not find the sentences imposed by the trial judge to be so arbitrary and shocking to

the sense of justice as to constitute cruel and unusual punishment. St. Peter at 6115, (citations omitted). Rather, we

find that the trial judge acted well within her sentencing discretion in these cases.

VI.

We find that the remaining issues raised in these appeals have been squarely addressed in St. Peter, supra,

and those principles are applicable here. For the reasons stated above the Judgments and Sentences of the Tribal

Court are Affirmed.

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William COLEMAN, Appellant,

vs.

COLVILLE CONFEDERATED TRIBES, Appellee.

Case Number AP92-14144, 3 CTCR 18

2 CCAR 43

[Frank S. LaFountaine, Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.

Lin Sonnenberg, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.]

Conference call January 25, 1993. Decided March 10, 1994.

Before Chief Judge Chenois, Judge Bonga and Judge Collins

Chenois, C.J.

This matter came before the Appellate Panel of Judge David Bonga, Judge Brian Collins and Chief Judge

Edythe Chenois, by telephonic conference call on January 25, 1993.

After reviewing the file and records the Panel decided to proceed as the file was sufficiently complete to

reach a decision to uphold the ruling of the Trial Court.

DISCUSSION

It is the belief of the Panel that the trial judge has great discretion in determining the sentence of a

defendant, provided that the trial judge does not exceed the statutorial punishment limits of the statute in question.

After reviewing the record and listening to the tape of the Change of Plea hearing of December 2, 1992, the

Panel finds that the trial judge did not solely rely upon the oral presentation by the prosecuting attorney of the

appellant’s state and federal criminal record in deciding the Trial Court’s sentence. The Panel believes that the trial

judge has sufficient information from the records of the Colville Tribe on which to base her decision in this matter.

The Appellate Court does not believe that the trial judge incorrectly determined the appropriate time the

defendant was to be credited for time already served. Appellant’s attorney incorrectly relied upon Washington law

for support of Appellant’s position. Under the Colville Tribal Code (CTC), the applicable law for this action is

found at CTC 4.1.11 which states:

In all cases the Court shall apply in the following order of priority unless superseded by a specific

section of the Law and Order Code, any applicable law of the Colville Confederated Tribes, tribal

case law, state common laws, federal statutes, federal common law, and international law.

The CTC does not recognize general state criminal statutes as being applicable to this action. Thus

Appellant’s reliance upon RCW 9.94A.400 is inappropriate for this matter.

The Trial Court’s decision in this matter is Affirmed.

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In Re the Welfare of B.B.D.

R. M., Appellant/Mother,

Case No. AP93-J93-12023, 2 CTCR 03

2 CCAR 44

[Stephen L. Palmberg, Attorney at Law, Grand Coulee WA, counsel for Appellant/Mother.

Steven Aycock, Legal Services, Colville Confederated Tribes, Nespelem WA, counsel for the minor.

Lin Sonnenberg, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.]

Argued April 8, 1994. Decided April 19, 1994.

Before Chief Judge Bonga, Judge Collins and Judge Nelson

BONGA, C.J.

The Appellate Panel of Judge Brian Collins, Judge Dennis Nelson and Chief Judge David Bonga convened

on March [sic] 8, 1994 at the Colville Tribal Courthouse to hear oral arguments on this appeal. The Panel also

considered a Motion to Dismiss filed by Tribal Children and Family Services (CFS). The Panel decided to reserve a

ruling on the Motion to Dismiss until after oral arguments were heard on the matter.

Present at the hearing were Stephen Palmberg, attorney for Appellant/Mother; Lynn [sic] Sonnenberg,

attorney for Appellee/Tribal Office of Children and Family Services; and Steven Aycock, spokesman for the minor

child.

After reviewing the file, hearing oral argument and considering the applicable law the Appellate Court

denies the CFS Motion to Dismiss.

In addition the Panel upholds the Children’s Court decision not to issue Findings of Fact and Conclusions

of Law following the August 20, 1993 dispositional hearing.

The Appellant’s appeal is hereby Denied.

DISCUSSION

I. Did the Trial Court err by denying appellant’s motion to make and enter Findings of Fact and Conclusions

of Law following a hearing on disposition?

The Appellate Panel holds that the Colville Tribal Code (CTC) does not require a judge at a disposition

hearing under CTC Chapter 12.7 to issue Findings of Fact and Conclusions of Law.

The Panel believes that the extensive record in this case firmly supports the Children’s Court discretionary

decision of not issuing Findings and Conclusions. The Appellate Panel however does believe, in the interest of

justice, that cases where the record is insufficient or questionable as to supporting a disposition, the Children’s Court

needs to issue Findings of Fact and Conclusions of Law so that all parties to the case will have notice of the Court’s

actions. Where there is substantial evidence, such as in this case, failure to issue Findings of Fact and Conclusions of

Law is harmless.

The Appellate Panel took notice of Appellant’s limited appeal which was limited to a lack of the Children’s

Court to issue Findings of Fact and Conclusions of Law. The representative for the minor also took notice of the

limited scope of the appeal and commented that all other issues which might have been appealed were waived. The

counsel for the minor argued that where a party to an appeal fails to raise an issue in their assignments of error or

argue the issue in their briefs, that issue is found to be waived. The Appellate Panel finds that position to be well

taken. Therefore the Panel believes that issues not raised in a brief and which are not supported by an argument are

deemed abandoned, unless failure to review the issue not properly presented would result in manifest injustice.

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In Re The Welfare of S. M.-C.

E. M. P., Appellant.

Case No. AP94-003, 2 CTCR 06, 24 ILR 6128

2 CCAR 45

[Stephen L. Palmberg, Attorney at Law, Grand Coulee WA, counsel for Appellant/Grandmother.

Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for father.

R. John Sloan Jr., Attorney at Law, Omak WA, counsel for minor.

Lin Sonnenberg, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Children & Family Services.

Juvenile Court Case Number J91-10013]

Argued April 22, 1994. Decided September 6, 1994.

Before Chief Judge Miles, Judge Bonga and Judge Collins

MILES, C.J.

This matter came before the Colville Tribal Court of Appeals for oral arguments on April 22, 1994. The

Tribes were represented by Lin Sonnenberg, the Appellant was represented by Stephen L. Palmberg and the minor

child was represented by R. John Sloan Jr.

The Court after reviewing the arguments of counsel, the record, and applicable law, made the following

findings and decision in this matter.

FINDINGS OF FACT

A review hearing for said minor was held on January 21, 1994. The Juvenile Court heard testimony from

James Tall, Clinical Supervisor for the Excelsior Group Home, and Elizabeth McCartney, caseworker for the

Colville Tribal Child Welfare Services. The Juvenile Court entered the following findings of fact:

1. The interest and welfare of S. M-C. Would be best served by continuing the

Court’s jurisdiction over her and that the welfare of S. M-C. is in danger if she is

not supervised by the Court; and

4

2. S. M-C. will be 18 years of age on January 25, 1994.

The Juvenile Court concluded by stating it could not retain jurisdiction because said minor child attained

th

her 18 birthday on January 25, 1994 and ordered the case to be dismissed.

A Motion for Stay was filed by Stephen Palmberg, counsel for E. P., grandmother of the minor. The

Juvenile Court denied the Motion on February 1, 1994.

A Notice of Appeal was filed on January 24, 1994 by Stephen Palmberg, counsel for Appellant. The appeal

was based on CTC 12.5.01, 12.2.12 and 12.2.11.

4

Findings and Conclusions Re Dismissal, initialed by Judge Howard E. Stewart on 1/28/94.

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CONCLUSIONS OF LAW

The Court of Appeals reviewed the purpose and construction of CTC 12.1.01:

“It is the purpose of this Juvenile Code to secure for each child coming before

the Tribal Juvenile Court such care, guidance, and control, preferably in his own

home, as will serve his welfare and the best interests of the Colville

Confederated Tribes; to preserve and strengthen family ties whenever possible;

to preserve and strengthen the child’s cultural and ethnic identity wherever

possible; to secure for any child removed from his home that care, guidance, and

control as nearly equivalent as that which he should have been given by his

parents to help him develop into a responsible, well-adjusted adult; to improve

any conditions or home environment which may be contributing to his

delinquency; and at the same time, to protect the peace and security of the

community and its individual residents from juvenile violence or law-breaking.

To this end, this Code shall be liberally construed.”

The intent of this section indicates the Colville Confederated Tribes mandates the Juvenile Court to secure

for each child such care, guidance and control as will serve his welfare and the best interests of the Colville

Confederated Tribes. The final objective of Juvenile Court is to help him develop into a responsible, well-adjudged

adult, to protect the peace and security of the community and its individual residents from juvenile violence or lawbreaking. Lastly, this Code shall be liberally construed.

CTC 12.1.01 specifically mandates that the Juvenile Court has certain responsibilities for children under its

jurisdiction. This Court finds the Juvenile Court erred in its interpretation of this section. According to Findings of

Fact #1, issued on January 28, 1994, the Court finds that” “The interest and welfare of S. M-C. would be best served

by continuing the court’s jurisdiction over her and that the welfare of S. M-C. is in danger if she is not supervised

by the Court. (our emphasis)

This Court reviewed CTC 12.2.11(c) which includes in its definition of the term “minor” defines a minor as

“(A) person eighteen (18) years of age or older who is under the continuing jurisdiction of the Juvenile Court.” This

Court finds the Juvenile Court erred by dismissing this action based solely on the fact that the said minor reached

her eighteenth (18th) birthday on January 25, 1994. The Juvenile Court had the authority to continue jurisdiction

according to CTC 12.2.11(c). This Court realizes CTC 12.2.11(c), by definition, may be for an indefinite period of

time after minor reaches his/her eighteenth (18th) birthday. This Court concludes that a reasonable amount of time

should be established for the Court to determine whether it should retain jurisdiction over children after reaching the

age of majority, consistent with the continuing grant of jurisdiction under CTC 12.1.01. The Court may retain

5

jurisdiction under that section or utilize CTC 13.4.16. However, it appears that the petitioner has not petitioned the

Court for child custody under CTC 13.4.16.

It is Therefore Ordered that this matter shall be remanded to the Juvenile Court for a hearing to redetermine

what would be in the best interest of said minor to retain jurisdiction and take other steps in accordance with CTC

12.1.01.

Francis LOUIE Jr., Appellant,

5

Child Custody - Powers and Duties of Custodian - Supervision by Appropriate Agency When Necessary. (1) Except as otherwise agreed by the

parties in writing at the time of the custody decree, the custodian may determine the child’s upbringing, including his education, health care, and

religious training, unless the Court after hearing, finds, upon motion by the noncustodial parent, that in the absence of a specific limitation of the

custodian’s authority, the child’s physical, mental, or emotional health would be endangered. (2) If both parents or all contestants agree to the

order, or if the Court finds that in the absence of the order the child’s physical, mental, or emotional health would be endangered, the Court may

order an appropriate agency which regularly deals with children to exercise continuing supervision over the case to assure that the custodial or

visitation terms of the decree are carried out. Such order may be modified by the Court at any time upon petition by any party.

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vs.

COLVILLE CONFEDERATED TRIBES, Appellee.

Case No. AP93-16188, 2 CTCR 05

2 CCAR 47

[Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.

Lin Sonnenberg, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.]

Argued May 13, 1994. Decided October 28, 1994.

Before Chief Judge Bonga, Judge Collins and Judge Baker

BONGA, C.J.

The Appellate Panel of Chief Judge David Bonga, Judge Brian Collins and Judge Rebecca Baker convened

for Oral Arguments in this matter on May 13, 1994 at the Colville Tribes Appellate Courtroom. In attendance were

Jeff Rasmussen, attorney for Appellant, and Lin Sonnenberg, attorney for Appellee.

After a thorough review of the file and consideration of oral arguments the Appellate Panel has decided to

Reverse the Judgment and Sentence of September 3, 1993 against defendant Louie, and hereby Dismisses the

charge.

DISCUSSION

1. Due Process Concerns

The facts of this case illustrate that specific details stated in the Complaint are essential for adequate notice

to a criminal defendant. Without specificity a defendant’s right to due process is endangered. In this case the

Complaint states that:

On or about the 25th day of April, 1993 and about the time of 2100 hours...the

defendant did the following specific acts: struck Avis Villegas; at the following

location: HUD #1136, Malott, Washington....

The Affidavit of Probable Cause states:

On 25 April 1993 at approximately 18:59 hours, Tribal Officer D. Garvais was

dispatched to possible criminal activity in progress at the residence of Avis

Villegas, HUD No. 1136, Malott, Washington...Officer Garvais made contact

with Ms. Villegas at HUD No. 188.

At trial Officer Garvais testified that he was dispatched on April 25, 1993 for an assault in progress at

Malott HUD 1136. The officer further testified that he contacted Ms. Villegas, who was at the home of her nephew

at Malott HUD house 188. Ms. Villegas told him that the defendant Louie had hit her and that defendant Louie was

in her home at HUD 1136, Malott. Officer Garvais further testified that he was informed “later on” by Ms. Villegas

that the battery had occurred in a car returning from the Nespelem rodeo.

The evidence at trial was to the effect that an altercation between Louie and Ms. Villegas occurred during a

trip from Nespelem. No evidence was presented at trial as to the amount of time that was required to travel from the

Nespelem rodeo to Malott. However, judicial notice can be taken of the fact that the time must have been

considerable as the distance from Nespelem to Malott is know to be over 50 miles. The altercation in the vehicle and

the alleged incident of the Complaint and Affidavit, which purportedly occurred in Malott, were not continuous,

therefore, involved separate events. We conclude that the facts adduced at trial concerning the events which

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occurred in Malott will not support a conviction as to the offense alleged in the Complaint, as the following analysis

will demonstrate.

The Colville Business Council was clear and direct regarding formal requirements of criminal complaints

at CTC 2.2.01(2) Contents which states:

2.2.01(2) Contents. The Complaint shall be in writing and shall set forth:

a. the name of the Court;

b. the title of the action and the name of the offense charged;

c. the name of the person charged; and

d. the offense charged, in the language of the statute, together with a statement as to the

time, place, person, and property involved to enable the defendant to understand the

character of the offense charged.

(Emphasis supplied)

The Panel reads CTC 2.2.01 as a directive by the Tribal Council to provide specific details of an offense

charged in the complaint itself, so that a defendant will have an opportunity to formulate a defense.

In this case the insufficiency of the Complaint could not have given the defendant adequate notice of the

crime he supposedly committed. In effect the defendant would have been required to prepare for two trials in order

to present an effective defense.

The Complaint filed herein charged one time and place of occurrence, while the proof offered at trial dealt

with an entirely different time and place. We conclude that this discrepancy falls far short of the Tribes’

requirements of stating clearly in the Complaint the time and place of the offense as provided in CTC 2.2.01(2) and

accordingly violates the due process requirements of CTC 56.02(f) by failing to give proper notice to defendant for

the offense charged. Auburn v. Brooks, 19 Wn.2d 623 (1992), 41 Am.Jur.2d Indictme

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