# See 3 CCAR 01 (1995)

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/tribal%3Aconfederated_colville%3A080c742df82c6a18

## Record

- **Collection:** Tribal code
- **Document type:** Tribal code

## Text

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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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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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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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.

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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 199

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Aconfederated_colville%3A080c742df82c6a18. Public record. Not legal advice.