# Pete SWIMPTKIN, Appellant,

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URL: https://www.frixlaw.com/law-library/documents/tribal%3Aconfederated_colville%3A2423a428575475e4

## Record

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

## Text

Pete SWIMPTKIN, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP80-3255, 3 CTCR 02
1 CCAR 01(1)
[Sheilah Cleveland, Legal Office, Colville Confederated Tribes, Nespelem WA, spokesman for Appellant.
Melanie Romo, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.]

Argued January 23, 1981. Decided January 23, 1981.
Before Chief Judge Stewart, Judge Schuyler and Judge Turgeon
PER CURIAM
This matter having come on Appeal on January 23, 1981, and the Court having reviewed the trial record,
briefs, and arguments of counsel, and the Appellate Court having found, after striking all evidence submitted prior to
advising the defendant of his Miranda warnings and after striking from the record any presumptions drawn from the
defendant’s refusal to submit to tests of sobriety, sufficient evidence to support a conviction in the lower Court
proceeding,
It is Hereby Ordered that the holding of the Appellate Court that it is able to grant appeals (sic) limited to
issues of law based on the record of the Trial Court pursuant to Section 1.9.05 of the Colville Appellate Code be
entered into the record;
It is Further Ordered that, based upon the above finding of sufficient evidence in the Trial Court record to
support a conviction, the Colville Trial Court decision is therefore Affirmed.

Isaac JACK Jr., Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP81-4083, 3 CTCR 03
1 CCAR 01(2)
[Isaac Jack Jr., Appellant, pro se.
Melanie Romo, Office of the Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.]

Decided June 18, 1981.
FRY, C.J.
This matter having come to the attention of the undersigned Judge of the Colville Tribal Court on June 6,
1981, and the defendant having been sentenced upon his plea of guilty on June 3, 1981,
and the defendant having requested a new trial by way of appeal,
and the Court having been apprised of all the facts, and in the interests of justice, it is hereby,
Ordered, Adjudged, and Decreed that the defendant is granted an appeal, which will be a new trial, the date
to be determined later.
It Is So Ordered.

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1 CCAR ___

COLVILLE CONFEDERATED TRIBES, Appellant,
vs.
RONALD H. LACOURSE, Appellee.
Case No. AP80-3222, 1 CTCR 05
1 CCAR 2
[Melanie Romo, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Sheilah Cleveland, Legal Office, Colville Confederated Tribes, Nespelem WA, spokesman for Appellee.]

Argued May 29, 1981. Decided May 20, 1982.
Before Chief Judge Turgeon, Judge Bowen and Judge Stewart
SUMMARY
Defendant/Appellee was tried before the Colville Tribal Court on the charge of Disorderly Conduct. After
all the evidence was presented, the judge dismissed the case, sua sponte, on the ground that the Tribal Disorderly
Conduct ordinance was unconstitutionally vague, and therefore void. The trial judge noted that had the ordinance
been constitutional, she would have had no choice but to find the defendant guilty as charged. The Tribe appealed
the dismissal. Briefs were submitted and oral arguments were heard on May 29, 1981, following which the
Appellate Court unanimously held: 1) that the Tribe's appeal was not barred by the defendant's protection against
double jeopardy; 2) that the Trial Court did not err in reviewing, sua sponte, the validity of the Disorderly Conduct
ordinance; 3) that the Trial Court erred in finding the Disorderly Conduct ordinance unconstitutionally vague and in
declaring it void. The Trial Court was reversed and the case remanded for reinstatement of the general finding of
guilty.
Unanimous opinion, BOWEN, J.
The defendant, Ronald H. LaCourse, was charged in the Colville Tribal Court with the offense of
Disorderly Conduct. Section 5.5.04 of the Tribal Law and Order Code defines that offense as follows:
Any person who shall engage in fighting in a public place, or who shall disturb
or annoy any public or religious assembly, or who shall appear in a public or
private place in an intoxicated or disorderly condition, or who shall make
unreasonable noise or offensively coarse utterances, gestures, or displays or who
shall engage in any other act of public indecency or immorality, shall be guilty
of Disorderly Conduct.
A bench trial was held at which time the Tribe presented evidence proving that the defendant was
intoxicated and that he caused a disturbance at his grandmother's residence on the evening of July 21, 1980. There
was conflicting testimony presented as to whether the residence in question could also be considered the defendant's
residence. After all the evidence was presented, the Trial Court dismissed the charge on its own motion, and held
that the Disorderly Conduct ordinance was unconstitutionally vague and, therefore, void because it could be
interpreted as applying to persons whose conduct amounts to nothing more than being intoxicated in their own
homes. The trial judge explained that had the ordinance been constitutional, the defendant would have been found
guilty of Disorderly Conduct.
The issues presented by the Tribe's appeal are:
1) Whether the appeal is barred by the defendant's protection against double jeopardy;
2) Whether the lower court erred in reviewing, sua sponte, the validity of the Tribe's Disorderly Conduct

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1 CCAR ___

ordinance;
3) Whether the lower court erred in finding the ordinance in question unconstitutional, and therefore void.
In resolving these issues this Court gives effect to and interprets Tribal law, including customary law of the
Colville Tribe. As noted below, the Tribe on occasion incorporates federal law. This Court looks to federal and state
law for guidance, and finds such law persuasive when consistent with Tribal policies and customs. Of course the
United States Constitution is not binding in proceedings in this Court or the Colville Tribal Court. Talton v. Mayes,
163 U.S. 376 (1895).
I. Is the Tribes’ appeal barred by a protection against double jeopardy?
Defendants in the Colville Tribal Court are protected against being put twice in jeopardy for the same
offense. This protection arises from Section 2.6.09 of the Tribe's Law and Order Code which reads that "all accused
persons shall be guaranteed all civil rights secured under ... federal laws specifically applicable to Indian Tribal
Courts." The "Indian Civil Rights Act" (ICRA), enacted by Congress in 1968, 25 U.S.C. § 1301 et seq. is such a
federal law. Section 1302(3) of that statute requires that "no Indian Tribe in exercising powers of self government
shall ... subject any person for the same offense to be twice put in jeopardy ..."
Although there is a dearth of tribal case law on the issue of double jeopardy, we affirm the Tribe's basic
policy precluding multiple prosecutions of a defendant for the same offense. As evidenced below, federal law
interpreting double jeopardy vis-a-vis the right to appeal a decision is somewhat amorphous and is still evolving.
Nonetheless the federal decisions are consistent with the Tribe's policy.
In Serfass v. United States, 420 U.S. 377 (1975), the U.S. Supreme Court explained that the purpose of the
constitutional prohibition against double jeopardy is to protect an individual from being subjected more than once to
the hazards of trial and possible conviction for an alleged offense. As that Court has repeatedly stated, the
underlying idea of this protection
is that the State with all its resources and power should not be allowed to make
repeated attempts to convict an individual for an alleged offense, thereby
subjecting him to embarrassment, expense and ordeal and compelling him to
live in a continuing state of anxiety and insecurity, as well as enhancing the
possibility that even though innocent he may be found guilty.
Green v. United States, 355 U.S. 184, 187-188 (1957).
In reversing the case at hand and ordering that a verdict of guilty be reinstated we perceive no violation of
the Tribe's policy interests in prohibiting double jeopardy. Counsel for the defendant argues that there was
insufficient evidence presented to convict the defendant, and a reversal of the Trial Court's decision would require a
1

new trial. We disagree and hold that the Court below did find the defendant guilty of Disorderly Conduct but
dismissed the action as a matter of law. No retrial is necessary.
The U.S. Supreme Court has repeatedly held that where there is no threat of either multiple punishment or
successive prosecutions, the protection against double jeopardy is not offended. Helvering v. Mitchell, 303 U.S. 391,
399 (1938); One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 235-236 (1972).
In United States v. Wilson, 420 U.S. 332 (1975), the jury entered a verdict of guilty, but on a post-verdict
motion by the defendant the court dismissed the indictment on the ground that preindictment delay had prejudiced
the defendant. In discussing whether a government appeal was barred by the double jeopardy clause, the U.S.
Supreme Court held that
1

The trial judge held that had a dismissal not been required as a matter of law, "I would have had no choice but to find the defendant guilty."

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although review at the instance of the government of any ruling of law
discharging a defendant obviously enhances the likelihood of conviction and
subjects him to continuing expense and anxiety, a defendant has no legitimate
claim to benefit from an error of law when that error could be corrected without
subjecting him to a second trial before a second trier of fact.
Id. at 345. Thus the Court held that an appeal was not barred because a successful appeal would merely necessitate,
on remand, entry of a judgment on the guilty verdict. We hold that the Tribe may appeal any criminal decision
which, if successful, would not require a new trial. We do not reach the question of when an appeal by the Tribe
may be allowed where, if successful, would not require a new trial. We do not reach the question of when an appeal
by the Tribe may be allowed where, if successful, a second trial would be necessitated. See generally United States
v. Scott, 437 U.S. 82 (1978).
II. Did the Trial Court err in reviewing, sua sponte the validity of the Tribal Disorderly Conduct ordinance?
Judges have the solemn duty and power to ensure fairness and promote justice in all proceedings before
them. They also have the inherent authority to review the validity of statutes. Whether or not a Tribal ordinance
conflicts with another provision of the Tribal Code is an important question, and one that is clearly within the
purview of the Tribal Court to consider. Where an ordinance may conflict with one of the civil rights guaranteed by
the ICRA, courts should be especially vigilant, as the Trial Court was in the case at bar, to guard against any
impingement upon these protections.
Section 1.5.05 of the Tribe's Law and Order Code provides as follows:
When jurisdiction is vested in the Court, all the means necessary to carry (it)
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.
We interpret this provision as giving the Tribal Court authority to determine whether an ordinance violates a
defendant's rights.
In this case the trial judge adopted a mode of proceeding consistent with the spirit of the Tribal law in
reviewing the validity of an ordinance, although neither party had raised the issue. The Trial Court's decision to
review, sua sponte, the validity of the Tribal Disorderly Conduct statute was clearly within its power. This authority
is consistent with the critical function that tribal courts perform in preserving and furthering tribal sovereignty and
independence.
Nor may we say that the Trial Court abused its discretion by the manner in which it reviewed the
ordinance; that is, by not allowing the parties an opportunity to brief and argue the issues presented. Either party
could have asked the Court for just such an opportunity by requesting a continuance, or by making a Motion for
Reconsideration. Neither the defendant nor the Tribe requested a continuance for this purpose. Thus, we hold that
the Trial Court did not err in reviewing, sua sponte, the validity of the Disorderly Conduct ordinance, nor did the
Court abuse its discretion by the manner in which it reviewed the ordinance.
III. Did the Trial Court err in holding the Disorderly Conduct Ordinance unconstitutional?
A. Does the Ordinance Violate a Constitution Binding on the Trial Court?
As we noted above, the United States Constitution is not binding in actions in the Colville Tribal Court.
This has been a doctrine of federal Indian law for many years and we affirm it as a matter of Tribal law. Therefore
the ordinance can not be invalidated by the court below on the basis that it violated the federal Constitution.
The Constitution of the Colville Confederated Tribes is binding on the court system of the Tribe. We hold
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1 CCAR ___

that nothing in that document requires invalidating the ordinance in question under the circumstances presented in
the trial of this action. As discussed below the Tribe has a policy of upholding its laws, and we emphasize our view
that an ordinance should be declared unconstitutional or otherwise invalid only as a last resort.
B. Does the Ordinance Offense Rights Guaranteed Defendants by the ICRA?

2

Section 1302 (8) of the ICRA requires that Indian Tribes not deny persons equal protection of the law or
due process of law. Only the Tribe can elucidate the meaning of these generic concepts within the context of a
proceeding such as the one at hand. For the reasons set forth below we hold that the ordinance in question does not
violate the defendant's rights of equal protection or due process.
1. Equal Protection.
This concept does not lend itself to precise definition and we do not propose to break any new ground in
that respect. Generally speaking equal protection means that people should be treated the same under similar
circumstances.
The record in this case indicates that the defendant was both intoxicated and sufficiently disorderly to cause
his ninety year old grandmother to summon the Tribal Police. The Police responded and the defendant was properly
3

charged. At no stage did the Tribe administer the ordinance "with an evil eye and an unequal hand..." From an
enforcement point of view, the defendant was not denied equal protection of the law.

4

2. Due Process and Statutory Construction
At this juncture we consider whether the statute should be declared void on its face and what principles a
trial court should employ in construing a statute such as the Tribe's Disorderly Conduct ordinance. We agree with
the trial judge's observation that the ordinance could conceivably be enforced against an individual whose conduct
amounts to nothing more than being intoxicated in his or her own home. Inasmuch as due process is often equated
with "fundamental fairness" such a prosecution may violate a defendant's guarantee of due process. Those are not
the facts in this case and to invalidate the ordinance because of an objectionable hypothetical does serious injury to
the Tribe's policy of upholding its laws wherever possible.
United States v. Harriss, 347 U.S. 612, 98 L.Ed. 989 (1954) is a U.S. Supreme Court decision on point in
emphasizing these holdings. In Harriss the government appealed the trial court's dismissal of an action charging
defendants with violating the Federal Lobbying Act. As in our case the statute on its face could be directed against
activity much broader than what was actually involved. In an opinion by Chief Justice Warren, the Court held that
the
requirement of definiteness is violated by a criminal statute that fails to give a
person of ordinary intelligence fair notice that his contemplated conduct is
forbidden by statute. The underlying principle is that no man shall be held
2

We note that Section 1302 of the CIRA is entitled "Constitutional Rights." This was clearly a mistake by Congress inasmuch as the ICRA may
provide certain civil rights to individuals in Indian country but these rights were intended to depart in certain particulars from rights under the
federal Constitution. They are not "constitutional rights" in any meaningful sense. See generally Santa Clara Pueblo v. Martinez, 436 U.S. 49
(1978).
3

Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886).

4

In Washington State a defendant must "show deliberate or purposeful discrimination based on an unjustifiable standard such as race, religion,
or other arbitrary classification." Spokane v. Hjort, 18 Wn.App. 606, 608; 569 P.2d 1230 (1977).

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1 CCAR ___

criminally responsible for conduct which he could not reasonably understand to
be proscribed... On the other hand, if the general class of offenses to which the
statute is directed is plainly within its terms, the statute will not be struck down
as vague, even though marginal cases could be put where doubts might arise...
And if this general class of offenses can be made constitutionally definite by a
reasonable construction of the statute, this Court is under a duty to give the
statute that construction.
98 L.Ed. 996-97. The Court went on to uphold the statute.
In our case the Trial Court was under a duty to adopt a construction which would uphold the validity of the
ordinance as applied to the facts before the Court. The Trial Court should have held that the ordinance is valid when
applied against an intoxicated and disorderly defendant who is disturbing another in a residence not clearly his own.
Any number of other characterizations would be equally appropriate in upholding the ordinance. To provide
guidance for the Tribe's future enforcement, we construe the ordinance as not proscribing conduct in which an
individual is intoxicated in his or her home and is not being disorderly.
This approach is consistent with the policy announced in Section 1.1.07 of the Tribe's Law and Order Code
that
[a]ny other issues of construction shall be handled in accordance with generally
accepted principles of construction giving due regard for the underlying
principles and purposes of this Code.
In Big Eagle v. Andrea, 508 F.2d 1293 (8th Cir. 1975), a pre-Martinez decision, two tribal members were
convicted under a tribal Disorderly Conduct ordinance similar to the one here at issue. The defendant filed habeas
petitions in federal court arguing that the tribal ordinance was void for vagueness and thus violated their right to due
process under the ICRA. The Court of Appeals noted that, if tested by standards applied to communities outside of
an Indian reservation, the Tribe's ordinance appeared facially vague and overbroad.
But we are not prepared to say that a limiting construction of the statute, wellknown to the Indian reservation society, would not, if made by the Tribal Court,
cure its facial vagueness and overbreadth.
508 F.2d 1296.

5

Another means by which courts uphold statutes is the rule of severability: if one part of a statute is found to
be invalid, but the rest of the statute is valid, and if the invalid part is severable from the rest, the valid portion may
6

stand while that which is void may be rejected. Again the Tribe's Law and Order Code mandates no less by the
Trial Court. Section 1.1.07 of the Code reads as follows:
If any provision of this Code or the application of any provision to any person or
circumstance is held invalid, the remainder of this Code shall not be affected
thereby and to this end the provision of the Code are declared to be severable.
Thus, before declaring a Tribal ordinance invalid within the context of a pending criminal action, judges of the
Colville Tribal Court must attempt a limiting construction or to sever the provisions of an ordinance in order to
sustain its validity.
The Trial Court is reversed and the case remanded for reinstatement of the general finding of guilty. It is so
5

The court declined to rule on the validity of the statute where the record failed to show if the Tribal Court had properly restricted the meaning
of the ordinance. On remand the district court declared the statute void as violating the ICRA.
6

See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Uniform Statutory Construction Act, 14 Uniform Laws Annotated 513 §16;
Severability of Statutory Provisions (1965).

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1 CCAR ___

Ordered.

Timothy A. HALL, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP82-5049/50/51/52, 3 CTCR 04
1 CCAR 7
[Sheilah Cleveland, Legal Office, Colville Confederated Tribes, Nespelem WA, spokesman for Appellant.
Melanie Romo, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.]

Decided January 19, 1983.
Before DUPRIS, C.J.
This matter having come to the attention of the Court and the Court having reviewed the corresponding
files and found that there is no basis for appeal, now, therefore
It is Ordered, Adjudged and Decreed that:
1) this matter shall be dismissed upon the grounds that the questions of law appealed are moot as the
defendants have entered pleas of guilty to the charges; and
2) the guilty pleas entered were determined to be voluntary on the part of the defendants.

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1 CCAR ___

Wayne BOYD, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP83-6051, 3 CTCR 12
1 CCAR 8
[Sheilah Cleveland, Legal Office, Colville Confederated Tribes, Nespelem WA, spokesman for Appellant.
Robert Widdifield, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, spokesman for Appellee.]

Argued July 26, 1983. Decided July 26, 1983.
Before Chief Judge Baker, Judge Naff and Judge Stewart
PER CURIAM
This matter come on regularly for trial de novo before the undersigned upon the date shown below,
pursuant to Rules of Court and defendant’s appeal of that certain Trial Court sentence entered the 10th day of May,
1983, in cause No. 83-6051. The defendant personally appeared and by his representative Sheilah Cleveland of the
Tribal Legal Office; the Tribe was represented by Tribal Prosecutor Robert Widdifield. The appellate tribunal
hearing considered the evidence, including testimony of witness’ and exhibits admitted, now, therefore, it is hereby
unanimously.
Ordered, Adjudged and Decreed that defendant be and he is hereby found guilty of the crime of Battery in
violation of § 5.1.04 of the Tribal Code. It is further
Ordered, Adjudged and Decreed that the terms and conditions of the Chief Judge’s order of sentencing of
May 10, 1983, be and they are hereby Affirmed.
(1) Non-suspended fine and court costs have already been paid;
(2) The defendant shall be on probation for a period of six (6) months; the defendant shall follow all the
rules and regulations of that department as specified by his probation officer;
(3) The defendant shall report 6:00 p.m. on 7/29/83 to the Tribal Jail and may be released 6:00 p.m. on
7/31/83. The defendant is to serve a like period the following weekend.
(4) Defendant shall report to Family Assistance and Mental Health Program on or before 7/29/83.

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Lou STONE, Appellant,
vs.
Francis SOMDAY, Appellee.
Case No. APCV82-208, 1 CTCR 14
1 CCAR 9
[David DeWolf, Lukins & Annis, Washington Trust Financial Center, Spokane, WA, counsel for appellant.
Harry Johnsen, Raas & Johnsen, Bellingham, WA counsel for appellee.]

Argued. Decided March 6, 1984.
Before Chief Judge Dupris, Judge Ward and Judge Harding
DUPRIS, C.J.
This matter has come before the Colville Tribal Court of Appeals upon a question of first impression: what
7

kind of immunity does a Colville Tribal official enjoy under Colville Tribal Law and Order Section 1.1.06 when
acting in his or her official capacity? Based on the reasoning set out below, this Court now holds it is qualified, not
absolute, immunity. Secondly, on arguments before the Appeals Court, Appellant argued that the Indian Civil Rights
8

Act of 1968, 25 U.S.C. § 1301 et seq. was federal law which specifically waived tribal and tribal official's
sovereign immunity pursuant to Colville Tribal Law and Order Code § 1.1.06. This Court does not agree. Based on
the reasoning set forth below, the Trial Court's decision to dismiss this action is reversed and the case remanded for
trial on the merits.
I. SUMMARY OF CASE
On June 17, 1982, Lou Stone and David Alexis filed a civil complaint in the Colville Tribal Court against
three tribal officials alleging discrimination in employment practices. On July 26, 1982, defendant filed a Motion to
Dismiss and the Trial Court judge, James A. Bowen, ordered briefing in the matter. On November 15, 1982, Judge
9

Bowen dismissed one cause of action as barred by the Statute of Limitations and denied the defendant's Motion to
Dismiss on the reasoning that sufficient facts were alleged in the complaint to carry this action forward.
On January 13, 1983, the date set for trial, the parties narrowed down to Lou Stone, plaintiff, against
Francis Somday II, defendant. The defendant renewed his Motion to Dismiss on three grounds: 1) failure to state a
claim under Tribal law, 2) failure to state a claim under the Indian Civil Rights Act, and 3) the action was barred on
the grounds of sovereign immunity. Judge Bowen denied the defendant's Motion on the first ground holding (1) that
the Colville Tribal Court had subject matter jurisdiction pursuant to Colville Tribal Law and Order Code § 3.1.01

10

7

Sovereign Immunity. Except as required by a federal law, or the Constitution of the Colville Confederated Tribes, or as specifically waived by
a resolution or ordinance of the Council specifically referring to such, the Colville Confederated Tribes shall be immune from suit in any civil
action, and their officers and employees immune from suit for any liability arising from the performance of their official duties.
8
9

Pub. L. 90-284, Title II, § 201, Apr. 11, 1968, 82 STAT. 77.
Colville Tribal Law and Order Code § 3.2.02.

10

Jurisdiction Generally. The Court shall have jurisdiction of all suits involving persons residing within the tribal jurisdiction as defined by this
Code and all other suits in which a party is deemed to have consented to the jurisdiction of the Court, or in which the events giving rise to the
action occurred within the tribal jurisdiction as defined by this Code.

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1 CCAR ___

11

and (2) that the Colville Tribal Court is a court of general jurisdiction and as such can entertain this action .
Finally, the Trial Court held that pursuant to the Tribal Law and Order Code § 1.1.04, Sovereign Immunity,
and the test set forth by the Trial Court

12

13

there was no genuine issues of fact . The plaintiff appealed the Trial

Court's decision to dismiss on the grounds that Sovereign Immunity barred this action.
II. SOVEREIGN IMMUNITY
Both parties argued extensively in their appeals briefs on whether or not the Indian Civil Rights Act created
a waiver of tribal sovereign immunity. However enlightening these arguments were, they did not address the real
14

issue in this case, i.e. official immunity . In fact neither counsel, either in their oral arguments before the Appeals
Court or in their appeals brief, addressed the specific issue of official immunity. Thus, the Appeals court had to look
elsewhere for guidance in this area.
A. Tribal Sovereign Immunity
To lay the matter to rest once and for all, this Court's decision in this case does nothing to negate or take
away from the Colville Confederated Tribes' sovereign immunity as set out in Section 1.1.06 of the Colville Tribal
Law and Order Code. It is well established that Indian Tribes enjoy sovereign immunity from suits absent a clear
15

waiver either by the tribe itself or by Congress . The fact the Colville Confederated Tribes codified this wellestablished concept in § 1.1.06 of the Code underscores the validity of its application in cases before the Court that
deal with suits against the Tribe. However, it is the second part of § 1.1.05, "... and their officers and employees
immune from suit for any liability arising from the performance of their official duties," that is before the Court in
this case.

11

See, Opinion Dismissing Action, at page 6. Because the Trial Court held that it had subject matter jurisdiction pursuant to Colville Tribal Law
and Order Code § 3.1.01, it found that it need not address whether or not the Indian Civil Rights Act of 1968 created new causes of action in
tribal courts. Id. at footnote 8.
12

"Under the definition of official immunity contained in Code § 1.1.06, unless an officer's acts are unrelated to his official duties or are
somehow related but are so egregious that they can be said to be outside of his official capacity, then he is immune from suit." Opinion
Dismissing Action, at page 9 (footnote omitted).
13

The trial court judge, in determining whether or not a trial was necessary, considered all the oral arguments, briefs, stipulation, affidavits and
other pleadings and ruled on Defendant's Motion to Dismiss as if it were a Motion for Summary Judgement. I.d. at 8.
14

In plaintiff's Notice of Appeal filed on February 7, 1983, Mr. DeWolf states the issue for appeal as : "Specifically, Plaintiff appeals from the
decision of the trial court, the Honorable James Bowen, Judge Pro Tem, that sovereign immunity applies to the action of the defendant
Francis Somday II." (emphasis added).
15

See, generally, Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-59 (1978).

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B. Official Immunity
"...[E]ach sovereign may define the limits of immunity afforded itself and its officers and agents, at least in
its own courts..."

16

Appellee was entirely right to state in his appeals brief that this Court should not decide policy

for the Tribe. On the other hand, it is well within the purview of a court to interpret the statutes and legislative acts
of the Tribal Council absent clear legislative direction.
The Trial Court set the standard for official immunity as "... unless an officer's acts are unrelated to his
official duties or are somehow related but are so egregious that they can be said to be outside his official capacity,
then he is immune from suit."
"unusually narrow."

18

17

In setting this standard, the Trial Court judge admitted that this standard was

We agree. However, it was not an easy task to find a standard which protects all interests

involved. This Court reviewed other tribal standards of official immunity

19

as well as federal

20

standards.

After reviewing case law and that Tribal custom law that is known to us, this Court now holds that a
Colville Tribal official enjoys a qualified immunity under Tribal Law and Order Code § 1.1.06. If a Tribal official,
while performing official duties, exceeds the scope of his authority or, while acting within the scope of authority,
exercises a power delegated to him by the Tribe which the Tribe is powerless to delegate, official immunity will not
bar actions against the official for such conduct. Implicit in this standard is a sense of reasonableness in that an
official should know or could have reasonably ascertained whether or not his conduct was within the bounds of his
official duties, explicit or delegated. On the other hand, because of his obligations not only to his employer, the
Tribe, but to the individual representatives of the Tribe itself, a Tribal officer has a higher standard of duty to
ascertain what his duties and powers are vis-à-vis his official capacity than an ordinary person would have. Whether
or not an official acted within the scope of his authority or exercised a power he was powerless to exercise and the
reasonableness of such action are questions of fact to be decided by triers of facts.
21

In this action the Trial Court fashioned an extremely narrow standard, i.e. unrelated or egregious actions ,
reviewed all pleadings filed on record, and treated Appellee's Motion to Dismiss as a Motion for Summary
22

Judgment. Implicit with such action the Trial Court found that there was no genuine issue of material fact , because
under the narrow standard set by the Trial Court the Tribal official is immune from suit. The question of whether or
not Mr. Somday is immune from suit under the new standard for review of official immunity is not answered.
Therefore, the Trial Court's Order Dismissing this action must be reversed.
16
17
18

Defendant's Brief in Support of Motion to Dismiss, filed on September 2, 1982, at page 3 (cites omitted).
Opinion Dismissing Action at page 9 (footnote omitted).
Id., footnote 14.

19

Eg., Satiacum v. Sterud, 10 ILR 6013 (Puyallup Tribal Court, 1982), Cudmore v. Cheyenne River Sioux Tribal Council, 10 ILR 6004
(Cheyenne River Sioux Tribal Court, 1981), and Moses v. Joseph, 2 T.C.R. A-51, Northwest Tribal Court Reporter at Sauk-Suiattle (SaukSuiattle Tribal Court, 1980).
20

Eg., Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct 1670, 56 L.Ed.2d 106 (1978), Puyallup Tribe Inc. v. Dept of Game of Washington,
433 U.S. 165 (1977), Ex Parte Young, 209 U.S. 125 (1908) and Wisconsin v. Baker, 10 ILR 2077 (10th Cir. 1983).
21
22

See no. 6, supra.
cf. WA CR 56, FCRP 59.

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1 CCAR ___

III. INDIAN CIVIL RIGHTS ACT OF 1968
As stated before, extensive arguments were made by both counsel on whether or not the Indian Civil Rights
Act of 1968

23

(ICRA) was "a federal law" that waived the Tribes' sovereign immunity. We hold now that it is not.

However, the import of this federal legislation cannot be ignored. It is the duty of tribal forums, including Tribal
Court, to promote the objectives of the ICRA, i.e. strengthening the position of individual tribal members vis-à-vis
the Tribe and furthering Tribal self-government.
guaranteed in the ICRA in its criminal cases.
defeat its dual purposes.

26

25

24

The Colville Tribal Court has long recognized the rights

To disregard all the other civil rights guaranteed in the ICRA would

"Tribal courts have repeatedly been recognized as appropriate forums for the exclusive

adjudication of disputes affecting important personal and property interests of both Indians and non-Indians."
"substantial and intended effect" of the ICRA on tribal courts is to change the laws we apply

28

27

The

in assessing

important personal and property rights of individual members vis-à-vis their tribe and, at the same time, furthering
the Tribes' self-government.
Therefore, although the ICRA does not waive the sovereign immunity of the Colville Tribal Court, it is a
substantive law which the Colville Tribal Court cannot disregard in adjudicating rights of its members.
Based on the foregoing, the Trial Court's Order Dismissing this action is hereby reversed and remanded.

23
24
25
26
27
28

Pub. L. 90-284, 25 U.S.C. §§1301 et seq.
Santa Clara Pueblo v. Martinez, supra at 64 (1978).
Specifically, rights guaranteed under ICRA, 25 U.S.C. §1302 (2), (3), (6), (7), (8), (9), and (10).
Eg. 25 U.S.C. §1302(1), (5) and (8).
Santa Clara Pueblo v. Martinez, supra at 66.
Id.

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1 CCAR ___

COLVILLE CONFEDERATED TRIBES, Appellant,
vs.
Markus K. DAVIS, Appellee.
Case No. AP83-6136, 1 CTCR 15
1 CCAR 13
[Robert F. Widdifield, Office of the Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA , spokesman for Appellant.
Markus K. Davis, Nespelem WA, Appellee, pro se.]

Argued February 1, 1984. Decided March 8, 1984.
Before Chief Judge Dupris, Judge Naff and Judge Wynecoop.
SUMMARY
On December 23, 1983, Markus Davis appeared before the Colville Tribal Court for a judge trial on a Drug
Abuse charge. The prosecutor, Robert F. Widdifield, presented evidence concerning the defendant’s guilt. The
defendant offered evidence refuting the allegations. Closing statements were presented to the Court and the judge
entered a verdict of Not Guilty. A Memorandum Opinion was filed supporting the Trial Court’s decision. A Notice
of Appeal was filed by the Prosecutor requesting the Appellate Court to reverse the Trial Court’s decision and
remand for sentencing.
DUPRIS, C.J.
I. FACTS
The defendant, Markus Davis, was cited on November 5, 1983 for violation of Colville Tribal Law and
29

Order Code § 5.5.05, Drug Abuse . It was alleged that he was carrying in his pants pocket a pipe which contained
marijuana residue. Defendant was arraigned on November 7, 1983, at which time he pleaded not guilty and a judge
trial was scheduled.
On December 3, 1983, Markus Davis appeared before the Court for a judge trial. The prosecutor, Robert F.
Widdifield, presented evidence alleging that the defendant was carrying a wooden pipe in his pants pocket which,
upon subsequent testing, contained marijuana residue. Defendant offered testimony that he didn’t know who the
pipe belonged to, that his brother sometimes wore his pants and that he had never used the pipe. Closing statements
were presented to the Court and the judge entered a verdict of Not Guilty. The prosecutor filed a Notice of Appeal
and Memorandum of Authorities requesting that the Appellate Court reverse the Trial Court’s decision and remand
back for sentencing. The prosecutor stated grounds that the Trial Court erred in finding the not guilty verdict in that
the judge entered a verdict in spite of agreeing that the defendant was probably guilty but was charged with the
wrong offense.

29

“Any person who shall engage in activity which violates Chapter 13, Drug Abuse Prevention and Control, of Title 21 of the United States
Code, shall be guilty of Drug Abuse. Drug Abuse is a Class A offense.”

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1 CCAR ___

II. APPLICABLE LAW
This matter came before the Colville Tribal Appellate Court upon a case of first impression: what kinds of
cases, if any, can the Colville Confederated Tribes (Tribes) appeal in criminal matters? Based upon the reasoning set
forth below, this Court now holds that the Tribe can appeal if (1) double jeopardy does not attach and (2) there has
been no acquittal.
The Appellate Court adopts the following definition of acquittal: “An acquittal is a legal determination,
made after jeopardy has attached, which is based on facts adduced at trial and relating to the general issue of the
case and which terminates the prosecution in favor of the defendant.”

30

In the case at hand, the trial proceeded

through the usual steps to its conclusion, i.e. prosecution presented evidence, defendant was given an opportunity to
refute the allegations, prosecution was given an opportunity to respond and closing arguments were heard. The trial
judge based his verdict on the lack of evidence presented, “...[The Tribe] did not prove to me beyond a reasonable
doubt that Mr. Davis was guilty of Drug Abuse.”

31

The verdict was in favor of the defendant. At no time during the

appeal hearing did the appellant argue that the trial did not proceed to its conclusion.
The threshold issue before the Appellate Court is double jeopardy. Double jeopardy is a recognized concept
for this Tribal Court. It is mandated that this civil right be recognized in tribal courts exercising powers of selfgovernment through the Indian Civil Rights Act of 1968, 25. U.S.C. §§ 1301, et seq., as it is applied through the
Colville Tribal Law and Order Code § 2.6.09.

32

Throughout the appeal hearing, the appellant argued that he did not

want to retry the appellee, but only wished to have the Trial Court’s decision reversed. It is our holding that this
would contradict the double jeopardy doctrine. For authority we look to Finch v. U.S., 433 U.S. 676 (1977).
We now hold that the Tribe may appeal if a Motion to Dismiss is entered for insufficient evidence after the
Tribe has presented a prima facie case. This Motion is usually raised by the defendant, but may be raised or
determined by the trial judge. The assumption is that this is like a mistrial in that the defendant requested it or that it
was done at his consent.

33

This would hold true for a mistrial.

Based on the foregoing, as a matter of law, this Court now finds that:
1. The case Colville Confederated Tribes vs. Markus K. Davis was fully adjudicated to the acquittal stage;
and
2. The Tribe’s appeal is denied as barred by double jeopardy.

COLVILLE BUSINESS COUNCIL, Appellants,
vs.
Wendell GEORGE, et al., Appellees.
Case No. AP84-CV84-402, 1 CTCR 19, 11 ILR 6049
1 CCAR 15
30
31

13. Gon.L.R. 337 at 351 (1978).
Memorandum Opinion Finding Defendant Not Guilty of Drug Abuse, Colville Confederated Tribes vs. Markus Davis, at page 4 (1984).

32

“Civil Rights. All accused persons shall be guaranteed all civil rights secured under Tribal Constitution and federal laws specifically
applicable to Indian Courts.”

33

Lee v. U.S., 432 U.S. 23 (1977)

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Page 14

1 CCAR ___

[Michael Taylor, Reservation Attorney’s Office, Colville Confederated Tribes, Nespelem WA, counsel for Appellants.
Dale Kohler, Nespelem WA, counsel for Appellees.]

Argued July 31, 1984. Decided November 8, 1984.
Before Chief Judge Baker, Judge Stewart and Judge Ward
BAKER, C.J.
SUMMARY OF PROCEEDINGS
Plaintiff/Respondent, Wendell George, filed a civil complaint on January 9, 1984, alleging violations of his
civil rights, and the civil rights of others similarly situated, under the equal protection guarantees of the Indian Civil
Rights Act of 1968 (ICRA), 25 USC § 1301(8), which states:
No tribe in exercising its powers of self-government shall ... (8) deny to any
person within its jurisdiction equal protection of its laws or deprive any person
of liberty or property without due process of law. ...
Plaintiff alleged that he, and those similarly situated, are at a political disadvantage under the “one-man, one-vote”
civil rights principle because of an alleged unequal representation on the Colville Tribal Business Council. On
February 8, 1984, Matthew Dick Jr. filed a motion to intervene as co-plaintiff on behalf of himself and other
Nespelem district voters similarly situated. On February 13, 1984, the defendant filed a Special Appearance and a
Motion to Dismiss on four grounds: (1) that the Court lacked jurisdiction; (2) that the defendants are immune from
suit; (3) that the complaint stated no claim upon which relief could be granted; and (4) that the issue raised was a
political question. The parties filed memoranda in support of their respective positions, and the Trial Court denied
Defendant’s Motion to Dismiss on the grounds of lack of jurisdiction, official immunity and failure to state a claim
upon which relief can be granted, but granted the Motion to Dismiss on the basis that the issue raised was a political
question, said dismissal being without prejudice.
Defendant appeals the Trial Court’s ruling on the questions of jurisdiction, official immunity, and failure to
state a claim upon which relief can be granted, and neither the plaintiff nor the intervenor filed a cross appeal. The
plaintiff/respondent argues that the defendant/appellant is not “an aggrieved party” and that this appeal should be
dismissed.
This court holds that the defendant is an “aggrieved party” and that the Trial Court’s decision should be
reversed and the plaintiff’s complaint dismissed, since Appellant/Defendant is protected by the doctrine of sovereign
immunity.
ISSUES
The Trial Court’s framing of the issues, and those presented on this appeal, result in the following questions
before the Court:
1. Is the defendant/appellant an aggrieved party despite the fact that Plaintiff’s complaint was dismissed
without prejudice below?
2. As a matter of law, does the court lack subject matter jurisdiction to entertain the lawsuit on the grounds
of sovereign immunity?
3. As a matter of law, is this lawsuit barred on the grounds of official immunity?
4. As a matter of law, has Plaintiff stated a claim under the ICRA for which relief can be granted?
5. As a matter of law, is this case ready for judicial review in light of the political question doctrine?

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1 CCAR ___

Because of the court’s rulings on the first two issues, the last three need not be decided.
1. Is the defendant/appellant an aggrieved party despite the fact that plaintiff’s complaint was dismissed
below?
Generally, courts have recognized the rule that a decision on appeal should be limited to a consideration of
and ruling upon those issues necessary to a proper disposition of the appeal and that the court should not ordinarily
go further and express an opinion on other matters. See 5 Am.Jur.2d, Appeal and Error, § 760. The exception to this
is where the issue in question is likely to arise again upon a retrial. See, e.g., Von Herberg v. Seattle, 147 Wash. 141,
288 P. 646 (1930), 70 ALR 417, 5 Am.Jur.2d, Appeal and Error, § 760.
Certainly it is true that appellate courts, like courts generally, are not to give opinions on merely abstract or
theoretical matters, but only decide actual controversies injuriously affecting the rights of some party to the
litigation, thus giving rise to the doctrine that questions or cases which might have became moot or academic are not
a proper subject of review. 5 Am.Jur 2d, Appeal and Error, § 761; Von Herberg v. Seattle, supra. Similarly, the
general principle is that an appellate court is concerned with the Trial Court’s holding, and not which whether the
reasoning of the decision is correct, and generally a correct decision will not be disturbed because it is based on an
incorrect ground. 5 Am.Jur. 2d, Appeal and Error, § 727. However, it has also been said that the rule that where a
correct judgment was rendered on an incorrect ground it will be affirmed does not apply where the incorrect basis of
the judgment was an issue on which the court below rendered its judgment. Id.
Whether or not a party is “aggrieved” by a ruling turns on whether that party has an interest recognized by
law in the subject matter which is injuriously affected by the judgment, or whose property rights or personal
interests are directly affected by the operation of the judgment. 4 Am.Jur. 2d, Appeal and Error, §183. Mere feelings
of grievance to one’s sense of propriety or justice, mere disappointment or inconvenience, annoyance, discomfort, or
even expense, does not entitle that party to appeal from it so long as the party is not thereby precluded from
asserting or defending his claim of personal or property rights in any proper court. Id., notes 10, 11 and 12.
The fact that a judgment may, in a sense, have been in favor of the parties seeking appellate review does
not necessarily require the conclusion that he is not an “aggrieved party,” and the prevailing party may appeal if the
court below has committed error that is prejudicial to him, although he may not appeal from a judgment in favor by
which he is not injuriously affected. 4 Am.Jur. 2d, Appeal and Error, § 184. Thus, if a party obtains the full relief
prayed for, he cannot attack the trial court’s reasons or its conclusion of law, attempt to procure relief on other
theories or grounds, or obtain modification of the judgment, either as to the extent of the relief granted or in other
respects. 4 Am.Jur. 2d, Appeal and Error, § 186. However, it has been held that a party can appeal to attack a finding
which is made part of the judgment itself, or on which, in the absence of appeal, would operate as res judicata or
form the basis for a collateral estoppel in a subsequent action. Id.; see also, Partmar Corporation v. Paramount
Theatres Corporation, 347 U.S. 89, 98 O.Ed. 532, 74S.Ct. 414, reh. den., 347 U.S. 931, 98 L.Ed. 1083, 74 S.Ct. 527
(1954); 60 ALR2d 724, 747, §§ 10(c), 19(b).
The defendant/Appellant herein has argued that the Trial Court’s ruling that the Tribal Business Council is
not protected by sovereign immunity in this Court will operate as res judicata or collateral estoppel in this case,
should it be refiled after the dismissal without prejudice, or in future cases of any kind brought against the Tribal
Business Council. We agree.
The ruling of the Trial Court dismissed the plaintiff/respondent’s complaint without prejudice to his right to
refile a case bringing allegations which would be sufficient to carry the issue beyond what the Trial Court ruled, on
the pleadings, to be a political issue. In other words, the Trial Court ruled that, should Plaintiff’s case become “ripe”
for resolution within the court system, under the political question doctrine, he might refile his complaint. Moreover,
another plaintiff might bring a similar claim, or one completely different, against the Business Council and, if the
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1 CCAR ___

Trial Court’s ruling were to stand on the issue of sovereign immunity, successfully rely on that decision as res
judicata. Accordingly, the defendant/respondent is an aggrieved party and entitled to appellate review.
2. As a matter of law, does the Court lack subject matter jurisdiction to entertain this lawsuit?
The parties have fully briefed the issue of sovereign immunity, and the only question is whether there is a
distinction between Tribal Business Council as sued herein and the Tribe itself. We find that sovereign immunity
bars the plaintiff’s action under the Colville Tribal Code § 1.1.06, which states:
Sovereign Immunity. Except as required by a federal law, or the constitution of
the Colville Confederated Tribes, or as specifically waived by a resolution or
ordinance of the Council specifically referring to such, the Colville
Confederated Tribes shall be immune from suit in any civil action, and their
officers and employees immune from suit for any liability arising from the
performance of their official duties.
Defendant/appellant’s point is well taken when it analogizes the Tribal Business Council to the Congress of the
United States. We see no meaningful distinction between the Business Council as sued herein and the Tribes itself,
and the same rules should apply in this case as if the Tribe itself had been named as a defendant. The
defendant/appellant is immune from suit under CTC. § 1.1.06, and Plaintiff’s complaint should have been dismissed
on that ground.
3. As a matter of law, is this lawsuit barred on the grounds of official immunity?
Official immunity is not an issue that is before us, and it was not before the Trial Court because no
individual official was named, nor was an individual’s official capacity designated or pleaded; moreover,
consideration of this issue is unnecessary because of our ruling on the issue of sovereign immunity. Likewise, there
is no need to discuss either executive or legislative immunity for this same reason.
4. As a matter of law, has plaintiff stated a claim under the ICRA for which relief can be granted?
Since the defendant as named herein is immune from suit because of the doctrine of sovereign immunity,
we do not reach, nor should the Trial Court have reached, the question of whether or not a claim for relief has been
stated under the Indian Civil Rights Act.
5. As a matter of law, is this case ready for judicial review in light of the political question doctrine?
The political question doctrine need not have been considered and ruled upon by the Trial Court, since the
defendant/appellant is immune from suit under the doctrine of sovereign immunity.

Tommy L. WATERS, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP84-7231, AP84-7232, 1 CTCR 20
1 CCAR 18
[Tommy L. Waters, Appellant, pro se.
Robert F. Widdifield, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, spokesman for Appellee.]

Initial Hearing January 29, 1985. Decided February 28, 1985.
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1 CCAR ___

Before Chief Judge Ward, Judge Bonga and Judge Wynecoop
UNANIMOUS PANEL
An initial hearing on the appeal occurred on January 29, 1985. The Appellate Court considered the Notice
of Appeal and applicable law. The Court decided to dismiss the appeal and remand as to the sentence that was
imposed for Resisting Arrest.
The basis for this dismissal and remand will be set forth by considering the grounds for appeal contained in
the Notice of Appeal.
I. MISCONDUCT OF THE JUDGE
The appellant asserts that the Colville Law and Order Code (hereinafter the Code) at 1.9.02A (2) is a
ground for appeal. This section of the Code provides that "Misconduct of the prosecution, judge or jury" may be
grounds for an appeal. To substantiate misconduct on grounds for appeal the appellant cites sections of the Code
regarding the appointment of a judge, Code at 1.4.02, eligibility requirements, Code at 1.4.03, and his
communication with the recording secretary of the Business Council regarding the non-compliance of these sections
as to the trial judge.
Misconduct has been defined as follows:
A transgression of some established and definite rule of action, a forbidden act,
a dereliction from duty, unlawful behavior, willful in character, improper or
wrong behavior...
Blacks Law Dictionary, Revised Fourth Edition, West Publishing Company, 1968, at 1150.
These two definitions encompass the function of a person, or the action or inaction of a person in a
particular position. They do not encompass questions about how the person was placed or appointed to a particular
position. The argument of the appellant that the appointment procedures and eligibility requirements in the Code
may constitute misconduct of a judge is misplaced. Appellant's arguments does not directly involve the function or
action or inaction of the trial judge. This assertion of the appellant will not be considered a ground for appeal in this
case.
II. NEWLY DISCOVERED EVIDENCE
The appellant asserts that the Code at 1.9.02A(3) is a ground for appeal. This section of the Code provides
that "Newly discovered evidence material for the defendant, which he could not have discovered with reasonable
diligence and produced at trial" may be grounds for an appeal. To substantiate newly discovered evidence on
grounds for appeal, the appellant asserts that he was unaware of the requirements for a Tribal Court judge and he
"had no way of anything about the judge to make a determination" [sic]. Notice of Appeal, filed December 20, 1984,
pg. 1, line 31-32. Presumably the appellant had no way of knowing anything about the judge to make a
determination or something to this effect. Material evidence has been described as follows:
In the Courtroom the terms relevance and materiality are often used
interchangeably, but materiality in its now precise meaning looks to the relation
between the propositions for which the evidence is offered and the issues in the
case. If the evidence is offered to prove a proposition which is not a matter in
issue, the evidence is properly said to be immaterial.
McCormicks Handbook of the Law of Evidence, 2d Edition, West Publishing Company, 1972, at p.434.
The appellant has appealed from a determination of guilt. Material evidence would prove an issue in the
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1 CCAR ___

case, and during the criminal trial there were issues guilt or innocence. The assertion that the appellant was unaware
of the requirements for a Tribal Court judge is immaterial in a criminal trial which deals with issues of guilt or
innocence. Further the existence of the facts asserted by the appellant, i.e. requirements of a Tribal Court judge, are
not evidence, and cannot be newly discovered evidence. The assertion of the appellant regarding newly discovered
evidence will not be considered grounds for an appeal in this case.
III. ABUSE OF DISCRETION
The appellant asserts that the Code at 1.09.02A(5) is a ground for an appeal. This section of the Code
provides that "abuse of discretion, by which the defendant was prevented from having a fair trial" may be grounds
for appeal. To substantiate Abuse of Discretion on grounds for an appeal the appellant asserts that the presentence
investigation was not given enough consideration. The Code at 2.6.07, Sentencing, provides:
Before imposing sentence, the judge shall 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.
It is clear that the discretion to impose jail time and or a fine is vested with the trial judge. The presentence
investigation is one of a number of factors that can be used by the trial judge in exercising her discretion. It is
unclear what enough consideration to a presentence investigation would be, but such an investigation could not be
binding upon a trial judge to the extent that all discretion is vacated and the presentence investigation is the
controlling factor to be considered and followed in its entirety. For purposes of this case, Abuse of Discretion may
be defined as follows:
'Abuse of Discretion' is synonymous with a failure to exercise a sound,
reasonable, and legal discretion...And it does not imply intentional wrong or bad
faith, or misconduct, nor any reflection on the judge but means the clearly
erroneous conclusion and judgment - one is that clearly against logic and effect
of such facts as are presented in support of the application or against the
reasonable and probable deductions to be drawn from the facts disclosed upon
the hearing; an improvident exercise of discretion; or error of law.
Black's Law Dictionary, Revised Fourth Edition, West Publishing Company, 1968, p.25.
In this case the record (i.e. tape recording of the sentencing) reflects that the trial judge read the presentence
investigation, as did the prosecution, defense counsel and the defendant. Further record reflects that court records
from the Okanogan County District Court were received after the presentence was complete and submitted. The
record does not reflect that the trial judge in this case was clearly erroneous and the weight she gave to the
presentence investigation was well within her discretion. The assertion of the appellant that there was an abuse of
discretion will not be considered for appeal, in this case.
IV. ABUSE OF DISCRETION
The appellant asserts that a further abuse of discretion occurred when the trial judge stated during the
sentencing that “You have never been thumped on.” (Quote from Notice of Appeal.)
The appellant has pulled a phrase from the dialogue of the Court. It is necessary to paraphrase what the trial
judge said and then consider the rule in Part III of the Opinion.
After the parties were allowed to make a statement, the trial judge made the following statement:
What I do notice, Mr. Waters, is that no one has really thumped on you before.
No one has said that your driving and your alcohol activities need to have some
serious consideration. The most that you've had is AIS. In addition there may be
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1 CCAR ___

conditions on a 1981 DWI from Okanogan County. No one has really gotten you
any help for what is an alcohol problem.
When the statement that was alleged to be an abuse of discretion (“You have never been thumped on”) is placed in
the context, the intent of the trial judge is discernable. The trial judge concluded that the defendant's driving and
alcohol activities had not been given serious consideration in prior criminal cases. This conclusion was reasonable in
these circumstances, and the statement as quoted by the appellant was not clearly erroneous. The assertion of the
appellant that there was an abuse of discretion will not be considered a ground for an appeal in this case.
The record reflects that the trial judge imposed 90 days jail with 90 days suspended and a $500.00 fine with
$500.00 suspended for Resisting Arrest. Resisting Arrest is a Class B offense, Code at 5.4.17, which is punishable
by 3 months, or a fine not to exceed $250 or both imprisonment and a fine, Code at 5.7.02. It is clear that there was
not authority to impose a $500.00 fine for Resisting Arrest and sentencing for Resisting Arrest will be remanded.
Based on the foregoing, the appeal of the appellant, Tommy Waters, is hereby dismissed as there are no
grounds upon which to grant an appeal. The sentence for Resisting Arrest is remanded.
It is So Ordered.

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1 CCAR ___

Tommy L. WATERS, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP85-7231, AP85-7232, 1 CTCR 21
1 CCAR 21
[Tommy L. Waters, Appellant, pro se.
Robert F. Widdifield, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, spokesman for Appellee.]

Initial hearing held April 16, 1985. Decided June 24, 1985.
Before Chief Judge Ward, Judge Bonga and Judge Wynecoop
WARD, C.J.
FINDINGS
1. On April 5, 1985, Tommy L. Waters filed a Notice of Appeal in Case No. 84-7231 and 84-7232.
2. A Judgment and Sentence Pursuant to Sentence on Remand in Case No. 84-7231 and 84-7232 was filed
March 12, 1985.
3. On April 11, 1985, a letter to Jane Smith [Court Administrator] from Tommy Waters was filed. In the
letter Mr. Waters demanded that he be notified when his appeal would be heard and that he be allowed to be present
"to present my self as my own attorney."
4. On April 9, 1985 an Order Staying Sentence in Case No. AP84-7231 and AP85-7232 was filed.
5. The Court of Appeals convened for the first time on April 16, 1985 by conference call between Judges
Dave Ward, Dave Bonga and Richard Wynecoop. The Court considered the failure of the appellant to file a Notice
of Appeal under the Tribal Law and Order Code at Section 1.9.03 and whether the issues raised could be considered.
The Court also considered the appellant’s demand for a hearing. It was decided that the appellant be given the
opportunity to convince the Court of Appeals as to whether this appeal should go forward. Briefs were to be
submitted by May 3, 1985 and the appellant was sent a letter to that effect.
6. The appellant did not file a Brief by May 3, 1985.
CONCLUSIONS
1. The appellant has failed to convince the Court that the appeal should be granted.
2. The Notice of Appeal from a Judgment and Sentence Pursuant to Sentence on Remand filed March 12,
1985, which was filed April 5, 1985 is untimely under CTC §1.9.03.
3. The Order Staying Sentence should be lifted.
Based on these Findings and Conclusions,
It is Ordered that the Appeal in this case is dismissed, that the Stay be lifted and that the Order be effective
upon filing in the Colville Tribal Court.

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1 CCAR ___

Tommy L. WATERS, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP85-7231, AP85-7232, 1 CTCR 22
1 CCAR 22
[Tommy L. Waters, Appellant, pro se.
Robert F. Widdifield, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, spokesman for Appellee.]

Hearing held August 26, 1985. Decided August 26, 1985.
Before Chief Judge Ward, Judge Bonga and Judge Wynecoop
UNANIMOUS PANEL
The Colville Court of Appeals convened on August 26, 1985 at 10:00 a.m. in the Colville Tribal
Courtroom. The appellant, Tommy Waters, was not present. The appellee, Colville Confederated Tribes, was
represented by it's prosecutor, Robert Widdifield.
The Court was convened to consider a document captioned "Notice of Appeal" filed on June 28, 1985, in
the above captioned cases.
The Colville Code at § 1.9.03 provides that:
Within ten days of entry of judgment, the aggrieved party may file with the
Tribal Court written Notice of Appeal...
In these cases judgment was entered on December 6, 1984 and March 12, 1985. The appellant would have had ten
days from these dates to file a Notice of Appeal. The appellant did not comply with the time periods and the
document captioned Notice of Appeal and filed June 28, 1985 is untimely.
There is no provision in the Colville Code regarding the finality of decrees of the Colville Court of
Appeals. It should be the rule that decisions of the Colville Court of Appeal are final for that case. In other words, a
party cannot appeal decisions from the Court of Appeals. It could be asserted that the document captioned Notice of
Appeal and filed June 28, 1985 was an appeal from an Order entered by the Appeals Court which was dated June 24,
1985. The Notice of Appeal filed June 28, 1985 is not valid and will not be recognized as a Notice of Appeal. The
Order entered by the Court of Appeals on February 28, 1985 is the final decision in this matter. This decision and
other orders entered by the Colville Court of Appeals cannot be appealed.
The Court of Appeals has reviewed all allegations put forth by the appellant and finds no merit in the
allegations.
The Stay of Sentence will be lifted and the sentences reimposed effective this date.
It is So Ordered.

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1 CCAR ___

Tommy L. WATERS, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP85-8235, 1 CTCR 24
1 CCAR 23
[Tommy L. Waters, Appellant, pro se.
Robert F. Widdifield, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, spokesman for Appellee.]

Initial Hearing held December 18, 1985. Decided February 20, 1986
Before Chief Judge Whitford, Judge Pascal and Judge Miles
WHITFORD, C.J.
SUMMARY
On September 6, 1985, Petitioner filed a Petition for Writ of Habeas Corpus. On that same date, the Writ
was denied as the defendant was not in custody at the time. Another Petition for Writ of Habeas Corpus was filed
and a hearing held. Judges Dupris, Naff and Stewart recused themselves from this hearing and Judge Jean Vitalis
was appointed as Judge Pro Tem.
Judge Vitalis reviewed the record, heard oral arguments and considered briefs filed by both parties. On
November 7, 1985, Judge Vitalis entered an Opinion and Order Dismissing Writ of Habeas Corpus. On November
9, 1985, Petitioner filed a Notice of Appeal and a Request to Stay Sentence. The Appellate Panel held a conference
call on December 18, 1985 for the purpose of appointing a Chief Judge and determining what was necessary to
proceed. It was determined that the Panel had enough facts before them to make a decision.
ISSUE
Should the decision dismissing the Writ for Habeas Corpus be overturned, remanded or denied based on the
Notice of Appeal filed by the petitioner Tommy L. Waters.
Mr. Waters based his Writ for Habeas Corpus on the following grounds: A. He was sentenced and tried by
an unqualified judge; B. It is a violation of due process to be tried by an unqualified judge; C. There was a gross
denial of substantial justice in that the Appellate Panel on the Resisting Arrest and Reckless Driving offenses did not
seriously consider the appellant's arguments concerning the qualifications of the trial judge; D. That the Appellate
Panel did not expressly affirm the Trial Court's decision therefore the sentence could not be carried out; E.
Irregularity in proceedings for unqualified judge to sit; and F. Substantial justice was not done because the defendant
did not receive a transcript of his original trial. Petitioner makes his request for Appeal based on four additional
grounds: A. The decision of the Trial Court judge was contrary to law and the evidence; B. Substantial justice was
not done because the Trial Court judge ignored arguments of the defendant; C. The Trial Court judge felt that there
had been no new evidence presented by the defendant; and D. The qualification of Judge Baker had not been
addressed except perfunctorily.
It is the opinion of this Appellate Panel that there should not have been more than one appeal in this matter.
The grounds presented were frivolous and a waste of the Court's time and money. It was also the opinion of this
Panel that the Trial Court and the previous Appellate Panel gave Mr. Waters every opportunity to be heard and to
present his arguments.
Pursuant to CTC § 1.5.05, the Tribal Court was granted the authority by the Tribal Council when "...the
course of proceeding is not specified in this Code, any suitable process ... may be adopted which appears most
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1 CCAR ___

conformable to the spirit of Tribal law."

34

There were no specific qualifications required to sit as a Judge Pro

Tempore/Visiting Judge in the Colville Tribal Court. The Tribal Court then had the authority to appoint a judge to
sit as Judge Pro Tem through any suitable process which most appeared conformable to the "spirit" of Tribal law. As
Judge Baker had been approved previously by the Tribal Council and was the closest available judge to the
Reservation, she was the obvious choice. To question the delegated authority of the Tribal Court to appoint Judge
Baker

35

is to question the authority of the Tribal Council to delegate its authority in everyday matters that normally

need not be brought to the attention of the Council.
Therefore, based on the foregoing
It is Ordered that the appeal on the Writ for Habeas Corpus shall be denied and the decision of the Trial
Court shall be affirmed. The Stay of Execution is hereby lifted and the defendant shall begin serving the remainder
of his sentence immediately.

John. D. GALLAHER, Appellant,
James H. GALLAHER, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case Number AP87-10135-42/74, 1 CTCR 32
1 CCAR 24
[Alfred Kitching, Attorney at Law, Spokane Washington, counsel for Appellants.
Robert F. Widdifield, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, spokesman for Appellee.]

Motion hearing held November 24, 1987. Decided January 7, 1988.
Before Chief Judge Wynecoop, Judge Bonga and Judge Whitford
WYNECOOP, C.J.
This matter having come before the Colville Tribal Appellate Court for a hearing on the Motion to Dismiss
Appeal filed by the Colville Tribe and the Court after reviewing the matter and hearing oral arguments by counsel,
makes the following determination:
The Motion to Dismiss filed by the [appellee] in this matter should be granted in that the appeal was not
timely perfected and the continuance should not be granted. This matter is referred back to the Trial Court for
disposition of the sentence imposed.
It is So Ordered.
James F. PHILLIPS, Appellant,
vs.
Julie A. PHILLIPS, Appellee.
Case No. AP88-CV88-778, 1 CTCR 38
34
35

C.T.C. §1.5.05 Means to Carry Jurisdiction Into Effect.
See Resolution 1985-67, dated 2/7/85, approved by the Commission of Indian Affairs.

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1 CCAR ___

1 CCAR 25
[James Phillips, Appellant, pro se.
Julie A. Phillips, Appellee, pro se.]

Decided December 22, 1988
Before Chief Judge Bonga, Judge Hawk and Judge Chenois
PER CURIAM
This matter having come before the Colville Tribal Appellate Court upon filing of an Appeal by petitioner,
James F. Phillips, on May 25, 1988. The Appellate Panel reviewed the record and tape of the hearing and makes the
following determinations:
1. The Colville Tribal Court has jurisdiction over this matter pursuant to Chapter 1.3, Jurisdiction, of the
Colville Tribal Law and Order Code.
2. There were two issues to be considered by the Appellate Panel: a) Was it an error for the Trial Court to
set petitioner's child care payments at $175.00; b) Should have the request for attorney's fees by the respondent been
denied.
3. The Court record, Findings Of Fact, are to be corrected.
Paragraph II of Findings Of Fact shall state: "The parties separated on January
15, 1987," in lieu of "The parties separated on January 15, 1988."
Paragraph IV is to be corrected to state, "Both parties are enrolled members of
the Colville Confederated Tribes. At the time of filing of the petition the
petitioner resided in Electric City, Washington and was employed by the Tribe,
and the respondent resided on the Colville Indian Reservation with the minor
child.
Issue Number 1
Was it error to set Petitioner’s child care payments at $175.00?
In civil cases the applicable law can be found in Chapter 3, § 3.4.03, of the Colville Tribal Code which
states:
In all civil cases the Court shall apply, in the following order of priority, any
applicable laws of the Colville Confederated Tribes, Tribal case law, Tribal
customs, state statutes, state common law, federal statutes, and federal common
law and international law.
The Colville Tribal Code, Tribal case law and Tribal custom do not provide guidelines for setting child care
payments in a divorce action. The Court must therefore look to state law for guidance.
Under Washington state law net income, which is also known as disposable income, is used for the
determination of child support payments. Disposable income or net income is determined after deductions for the
following are made:
1. Taxes
2. Social Security (FICA)
3. State Industrial Insurance
4. Union Dues
5. Prior support payments
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1 CCAR ___

Net income is therefore not what one "brings home" after deductions are made for voluntary expenses incurred by
the wage earner (such as rent and loan payments made through automatic deductions). Instead, net income
(earnings) are the excess of the gross earnings over the expenditures incurred in producing them.
Thus the Trial Court did not err in using Washington's rule on disposable income for determining child
support payments of $175.00 a month. The Appellate Panel therefore finds no basis to disturb the Trial Court's
ruling on child support, and the appeal is denied.
Issue Number 2
Should have Respondent’s request for attorney’s fees been denied?
The Colville Tribal Code has no statutory requirements addressing attorney's fees. The Appellate Court is
also unaware of any Tribal case law or Tribal custom which speaks to the issue of attorney's fees. Under CTC §
3.4.03, Applicable Civil Law, the Appellate Court next looks to Washington state statutes. Since there are no state
statutes which determines attorney fees awards, state common law must be applied. Under Washington State case
law the awarding of attorney fees is a matter of discretion of the trial court. The trial court's determination of
attorney fees will not be reversed on appeal unless the trial court's action was untenable or manifestly unreasonable.
Valley v. Selfridge, 30 Wa. App. 908 (1980).
On March 15, 1988, Chief Judge Anita Dupris issued a Temporary Order of Relief in this matter. The
Temporary Order states the attorney fees would be denied at that time, but that the respondent, Ms. Phillips, could
raise the request for attorney's fees at the time of trial. On April 28, 1988 this matter went to trial. The Trial Court
decreed that the petitioner was required to pay respondent's attorneys fees of $500.00, which is under appeal. The
Appellate Panel after reviewing the record and tape does not find the award of attorney fees to be contradicting,
untenable or unreasonable. The appeal of attorney's fees is therefore denied.
It is Hereby Ordered that the appeal filed by Mr. James F. Phillips is denied.

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1 CCAR ___

Jerome L. MONAGHAN, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Plaintiff.
Case No. AP88-10623, 1 CTCR 39
1 CCAR 27
[Jerome L. Monaghan, Appellant, pro se.
Robert F. Widdifield, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, advocate for Appellee.]

Decided March 8, 1989.
Before Chief Judge Fry, Judge Chenois and Judge Hawk
FRY, C.J.
This matter having come before the Colville Tribal Court of Appeals on notice of the appellant, and the
Court having reviewed the files and records herein, then therefore
It is Ordered, Adjudged and Decreed that:
1. The appellant's basis for appeal, which is failure to appoint legal counsel for a person, is insufficient due
to the Court's finding that it is an issue which has been widely litigated and found to be valid pursuant to the Indian
Civil Rights Act; thus it was not error for failure of the trial judge to appoint counsel for the defendant.
2. The issue of whether the defendant is allowed to exchange jail days for alcohol inpatient days is
remanded to the Trial Court judge for clarification and inclusion in the Judgment and Sentence as appropriate;
otherwise, and in all other respects, the decision of the Trial Court judge is affirmed.
It Is So Ordered.

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1 CCAR ___

Polly PEASLEY, Appellant,
vs.
Arnie HOLT, Appellee.
Case No. AP88-CV88-888, 1 CTCR 40
1 CCAR 28(1)
[Polly Peasley, Appellant, pro se.
Arnie Holt, Appellee, pro se.]

Decided March 15, 1989.
Before Chief Judge Johnson, Judge Bonga and Judge Ward
JOHNSON, C.J.
This matter having come before the Court upon a filing of an Appeal Notice by appellant on September 8,
1988. The appellee then filed a Motion to Dismiss the Appeal as not timely filed. The Court ordered a briefing
schedule and duly notified the parties of same. The appellee, Mr. Holt, filed a legal brief in support of his motion.
The appellant did not file a legal brief supporting her appeal or opposing the motion to dismiss. Appellant requested
a continuance of the briefing schedule which was denied.
The Court has reviewed and its decision is based on the record of this matter, the legal brief submitted, and
CTC § 1.9.03, Notice of Appeal.
The judgment from which the appellant appeals was filed on August 23, 1988. In order to comply with
CTC § 1.9.03 and file a timely notice of appeal the appellant should have filed no later than September 2, 1988. Her
appeal notice is dated September 2, 1988 but was not filed with the clerk until September 6, 1988. The appellant has
not assisted the Court by brief or affidavit to clarify this filing delay even though she was given an opportunity to do
so. The Court concludes that the appeal is not timely filed as being past the ten (10) day limitation required by CTC
§ 1.9.03, Notice of Appeal. In accord is the case of Tommy Waters v. Colville Confederated Tribes (Colville Court
of Appeals [AP85-7231/32, 1 CTCR 21, 1 CCAR 21], decided June 1985).
It is therefore Ordered and Adjudged, that the appeal filed by appellant on September 6, 1988 is dismissed
as not timely filed.

Stanley V. McCRAIGIE, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP89-11177, 1 CTCR 44
1 CCAR 28(2)
[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.]

Decided September 21, 1989.
Before Chief Judge Miles, Judge Baker and Judge Johnson
MILES, C.J.
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This case having come before the Colville Tribal Appellate Court on September 21, 1989 by conference
call before Judge Rebecca Baker, Judge Wanda Miles, and Judge William Johnson.
Upon filing of an appeal by the appellant on March 22, 1989, the Court requested written legal briefs and
established a schedule for submission. On July 10, 1989 a motion for extension of time was filed by Stephen L.
Palmberg, attorney for appellant. An order granting an extension until August 31, 1989 was entered on July 18, 1989
by presiding Chief Judge Wanda L. Miles.
The Court has reviewed the record on appeal which consists of the case file, number AP89-11177 and all
documents therein; the cassette tape record of AP89-11177; and applicable Colville Tribal Law. Upon review of the
records this Court concludes the following:
1. Although the appellant through legal representation of Stephen L. Palmberg filed a Notice of Appeal
stating four issues specifically being: (a) Misconduct of prosecution; (b) accident or surprise; (c) newly discovered
evidence; (d) substantial justice not done. The appellant failed to submit a brief, as ordered, to support his claim in
these four areas for this Court to consider. The record shows this Court granted an extension to file a response brief,
deadline being August 31, 1989.
2. There is no indication on the record of misjustice having been done or evidence or error by the
prosecution.
Therefore, in conclusion from our review and analysis, which is based on the case records, Tribal law, and
appellant's failure to submit a brief to support his claims stated in the Notice of Appeal, the Appeal is denied.
So Ordered.

Robert A. FREUND, Appellant,
vs.
Judy L. PEARSON, Appellee.
Case No. AP89-CV87-762, 1 CTCR 43, 16 ILR 6150
1 CCAR 29
[Robert A. Freund, Appellant, pro se.
Judy L. Pearson, Appellee, pro se.]

Decided September 28, 1989.
Before Chief Judge Johnson, Judge Ward and Judge Miles
UNANIMOUS PANEL
This case having come before the Court on appeal from a custody order issued January 5, 1989 by the
Colville Tribal Court. Appellant appeals on grounds his civil rights were violated. The Court requested written legal
briefs and established a schedule for their submission. Specifically, the Court requested briefing on whether the
appeal was filed within the statutory ten day time limit; and whether the Notice of Appeal indicated with sufficient
particularity the grounds for appeal. The parties without legal counsel submitted legal memoranda as requested. Oral
argument was not requested and the Court does not deem it necessary to hear same.
The Court has reviewed the legal memoranda submitted, the record on appeal, and applicable Colville
Tribal law. The record on appeal consists of the case file number CV87-762 and all documents therein, and the
cassette tape record of the January 4, 1989 custody hearing.

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1 CCAR ___

TEN DAY STATUTORY TIME LIMIT
Colville Tribal law requires the written Notice of Appeal to be filed within ten days of the entry of the
judgment being appealed. Colville Tribal Code, § 1.9.03. "To be filed" usually means to place the paper or
document within the official custody of the court clerk. In computing any period of time prescribed by Tribal law,
the day of the act or event from which the designated period of time begins, shall not be counted or included. The
last day of the period so computed shall be counted or included, unless it is a Saturday, Sunday, or a legal holiday, in
which case it runs until the next day. Colville Tribal Code, § 1.11.15.
In this case the envelope containing the Notice of Appeal was marked received on January 16, 1989. The
written Notice of Appeal was marked filed on January 17, 1989. When a situation like this occurs, and in the
absence of a court rule to the contrary, we interpret the official custody of the court clerk to begin on the earliest
notation of receipt. Here, court clerk custody would begin on January 16, 1989.
The ten day period ended on a Sunday (January 15) and would by Tribal law extend to the next day,
January 16, 1989. It should be noted that Martin Luther King Jr.'s birthday was an official federal legal holiday
observed on January 16, 1989. If this holiday was observed by the Colville Tribes the ten day period would be
extended to January 17, 1989.
We therefore conclude from our application of law to these facts that the written Notice of Appeal was filed
on January 16, 1989 which is within the ten day statutory time limit prescribed by the Colville Tribal Code, § 1.9.03.
GROUNDS FOR APPEAL
Colville Tribal Code, § 1.9.03A requires a written Notice of Appeal to indicate with particularity the
grounds which are the basis of appeal. The reason for this requirement is to put the opposing party on notice as to
what is assigned as legal error. The opposing party or appellee then has an adequate opportunity to prepare for
argument.
Appellant's grounds for appeal, according to his written notice, are "denial of civil rights of myself and the
children and other factors to be determined at trial." He then in his written legal memorandum indicates his civil
rights were violated because the Colville Tribal Court did not have jurisdiction of child custody matters. He also
argued the Court did not have jurisdiction of him personally. We will subsequently discuss these arguments.
A general statement that "my civil rights were violated" is not sufficient specificity or particularity.
However, we are willing to allow for Appellant's lack of legal training in discerning his grounds for appeal. His
legal memorandum, with attachments, clarifies that he means his civil rights are violated because he contends the
Court did not have jurisdiction of the custody matter or over him personally. See p.1 paragraph 1, Appellant's brief.
The Court concludes in light of appellant's lack of legal training that his legal memorandum clarified or
specified his grounds, and therefore he sufficiently stated his grounds for appeal.
JURISDICTION
The Colville Tribal Court based its jurisdiction on Colville Tribal Code, § 13.4.09 which is entitled: "Child
custody proceeding -- commencement -- notice -- intervention." This statutory authority is cited in the petition for
custody filed originally by Appellee. Personal jurisdiction over all necessary parties, including appellant, was based
on the tribal enrollment and domiciles of the appellee and her children, service of the petition for custody on
appellant by certified mail, notice to appellant of the January 4, 1989 hearing, appearance by counsel Sloan for
appellant, and appellant's appearance in the matter requesting a continuance of the January 4 hearing. This is
specified in the cassette recording of the January 4, 1989 hearing and order of custody.
Appellant argues the Court lacked subject matter jurisdiction because it was not authorized to adjudicate

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1 CCAR ___

child custody proceedings under the Indian Child Welfare Act. Appellant argues that he has consolidated this appeal
with another matter which adds further confusion to the issues. Appellant's brief p.3. We agree.
The statute included in Chapter 13, Colville Tribal Code (known as the Domestic Relations Code) is
authorized under the constitutional and sovereign power of the Colville Confederated Tribes. See Resolution 1986645, Colville Business Council, included as preamble to enactment of Domestic Relations Code.
This chapter is not based on the Indian Child Welfare Act and therefore appellant's argument disputing
jurisdiction for this reason is not relevant. This chapter specifically authorized the Tribal Court to adjudicate child
custody proceedings between parents which is the case here.
Furthermore, any argument that Public Law 280 is a grant of exclusive domestic relations jurisdiction to the
state of Washington is not supported by the wording of the Act. Courts have construed Public Law 280 as leaving
substantial governmental authority with the tribes, holding that the statute should only be interpreted to delegate to
the states that jurisdiction which Congress clearly intended to transfer. Bryan v. Itasca County, 426 U.S. 373 (1976);
Santa Rosa Band v. Kings County, 532 F.2d. 655 (9th Circuit 1975), cert. denied, 429 U.S. 1938 (1977). Also see
Cohen, Handbook of Federal Indian Law, p. 344-345, 1982 edition.
Appellant further argues that the Court did not have jurisdiction because of his domicile. He cites
Mississippi Bank of Choctaw Indians v. Holyfield, et al. (U.S. Sup. Ct., decided April 3, 1989), 16 ILR 1008 (1989),
in support of his argument.
Holyfield does not support appellant's argument. Specifically, it dealt with exclusive tribal jurisdiction of
Indian children under the Indian Child Welfare Act. The Supreme Court interpreted the meaning of "domicile" to be
expressed by the ordinary meaning of the words used, in light of the statute's (Indian Child Welfare Act) object and
policy. 16 ILR at p. 1013. The Court indicated that the domicile of minors is usually determined by that of their
parents. Although the Indian children involved in Holyfield had been deliberately kept from the reservation, the
court concluded the Tribe had exclusive jurisdiction because of the on reservation domicile of the mother. The state
court adoption proceedings were therefore reversed. The case at hand is not based on the Indian Child Welfare Act
and the domicile of the children is on the reservation the same as their mother's. See January 4, 1989 Custody Order,
Findings of Fact and Conclusions of Law.
The Colville Tribal Court based its personal jurisdiction in this matter on the hearing notice and petition to
appellant by certified mail, his appearance by legal counsel, his appearance in requesting a continuance in the
matter, and the tribal enrollment and domiciles of appellee and her children. It could have also considered Colville
Tribal Code, § 1.13.02 and § 1.13.03, the Tribe's long-arm statute as a basis for jurisdiction but apparently did not
find it necessary to do so. State courts utilize long-arm statutes for service of process outside the state or territorial
jurisdiction.
This Court concludes from our review of the record and legal memoranda submitted that the Colville Tribal
Court had subject matter jurisdiction over the child custody proceedings involved herein by virtue of Tribal law; and
that the Court had jurisdiction over all parties, including appellant for the reasons enumerated by the Tribal Court.
In accordance with our review and analysis, which is based on the case record, legal memoranda, and
Tribal law, the appeals should be denied.
Accordingly, and for the reasons stated, the appeal in this custody matter is denied.

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COLVILLE CONFEDERATED TRIBES, Appellant,
vs.
Peter P. GEORGE, Appellee.
Case No. AP85-8054, 3 CTCR 01
1 CCAR 32
[Robert F. Widdifield, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, spokesman for Appellant.
Peter P. George, Appellee, pro se.]

Initial Hearing held June 3, 1985. Decided January 18, 1990.
Before Chief Judge Baker, Judge Chenois and Judge Naff
BAKER, C.J.
This matter came before the Colville Tribal Court of Appeals upon a filing of a Notice of Appeal by Robert
F. Widdifield, counsel for plaintiff. On June 3, 1985, the Appellate Panel reconvened to determine what further
proceedings were needed in this matter. The Appellate Panel determined that the Order of Briefing and Scheduling
of April 14, 1985 was complied with by plaintiff/appellant; the Panel received no response from the
defendant/appellee. The Panel having received and reviewed all plaintiff’s case citations, plaintiff’s memorandum,
and the in-court tape recording of the Trial Court proceedings in this matter, the ruling is made that the Trial Court
should be affirmed.
STATEMENT OF FACTS
The relevant facts in this matter as disclosed from the taped record of the arraignment are:
1. The arresting officer was on routine patrol on 3/5/85 at 4:00 p.m in East Omak in an area believed by the
officer to be a high crime area.
2. No crimes had been reported in the recent past in the area in question.
3. The officer observed a young male walking.
4. The officer did not recognize the young male as local.
5. The officer stopped the defendant and asked him to identify himself.
6. Upon stopping defendant, the officer noticed the defendant was slightly unsteady, had disheveled
clothing and had an odor of intoxicants about him.
The issue at bar is: Was the “stop” permissible?
In analyzing the issue, the Court addresses each citation of authority given by plaintiff.
First, plaintiff, in his discussion, cites Colville Tribal Code § 4.1.11, Applicable Law.

36

Since a “stop” is a

seizure, federal and state criminal law are looked to for authority.
Plaintiff argues that the facts in the case at bar justified a Terry stop. A Terry stop is justified by
“reasonable suspicion” (less than probable cause but more than a hunch). Terry v. Ohio, 392 U.S. 1 (1968). In Terry,
the officer had observed defendants go through a series of acts, each of them perhaps innocent in itself, but which
taken together and along with the officer’s training, raised a reasonable suspicion that criminal activity was afoot
36

Applicable Law. In all cases the Court shall apply, in the following order of priority unless superceded by a specific section of 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.

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and thus the situation warranted further investigation and a limited intrusion whereby the officer properly conducted
a “stop and identify”, i.e. he stopped the defendants and required them to identify themselves and state their
business. Chief Justice Warren, speaking for the Court in Terry, and laying down the requirement for articulable
facts, said, “This demand for specificity in the information upon which police action is predicated is the central
teaching of this court’s Fourth Amendment jurisprudence”. Id. at 21, n. 18.
Plaintiff then cites United States v. Villamonte-Marques and Hamparian, 77 L.Ed.2d 22, 103 S.Ct. 2573
(1973). This opinion deals with stops of water vessels in channels leading to open seas for the purpose of examining
documents and involves the unique and compelling governmental interest of the enforcement of U.S. customs laws.
Since the case at bar involves an individual walking in East Omak, an inland city, where no customs law violation
could be occurring, the Villamonte-Marques case is inapposite.
Plaintiff also relies on United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Once
again, this is search and seizure law applied in the customs arena but moreover demands that two elements be
present before a stop is permissible: (1) Assessment must be based upon all of the circumstances with various
objective observations, such as police reports of modes or patterns of operations of certain kinds of lawbreakers, and
(2) Assessment of the whole picture must yield a suspicion that the particular individual being stopped is engaged in
wrongdoing. Neither of these elements exists in the case at bar.
Next Plaintiff argues that United States v. Hensley, 83 L.Ed.2d 604 (1985), should control. In that case an
investigative stop was made pursuant to a “wanted flyer” issued by a neighboring police department. The Supreme
Court upheld the stop as justified even in the absence of a warrant of arrest or actual probably cause. Since there was
no flyer placing suspicion on the defendant in the case at bar, the key element of the Hensley holding is absent. Thus
Hensley does not control.
Plaintiff lastly cites State v. Belanger, 36 Wn.App. 818 (Div. II, 1984), a case in which the officer based the
stop on the prior activity of Huddleson, a known transient, who upon seeing police approaching, hurriedly handed
over a sleeping bag to the defendant and walked away. This activity, coupled with the officer’s prior acquaintance
with Huddleson, alerted the officer to further inquiry. This case is readily distinguishable from the case at bar, since
the officer here had no prior acquaintance with the defendant.
We see no justification for the officer’s intrusion upon the defendant in stopping him on the public street.
Accordingly, we find that the Trial Court correctly dismissed the case, and it is now, therefore
Ordered that the decision of the Trial Court be, and it hereby is, Affirmed.
WYNNE, Jeffrey, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP89-12291, 1 CTCR 46
1 CCAR 34
[Jeffrey Wynne, Appellant, pro se.
Maureen Byers, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.]

Decided June 29, 1990.
Before Chief Judge Bonga, Judge Baker and Judge Chenois
BONGA, C.J.
The Appellate Panel by telephonic conference call on June 29, 1990 decided that based on the recent U.S.
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1 CCAR ___

Supreme Court ruling in the case Duro v. Reina, that the Colville Tribal Court does not have jurisdiction in this
mater. The Court also concluded that the appellant was never officially represented by counsel during the appeal and
admonishes the attorney Tulee for representing that at this time he is able to defend parties before the Colville Tribal
Court.
It is Ordered that the case of Wynne v. CCT is dismissed.

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1 CCAR ___

OVERTURNED IN PART

Randy L. THOMAS, Appellant,

See 3 CCAR 01 vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP90-12425, AP90-12426,
AP90-12427, AP90-12428, 1 CTCR 48, 18 ILR 6126
1 CCAR 35
[Owen M. Gardner, Attorney at Law, Okanogan WA, counsel for Appellant.
Maureen Byers, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.]

Argued September 14, 1990. Decided October 29, 1990.
Before Chief Judge Bonga, Judge Roe and Judge Chenois
UNANIMOUS PANEL
The Appellate Panel of Chief Judge Bonga, Appellate Judge Roe and Appellate Judge Chenois heard oral
arguments in the consolidated appeal of Colville Confederated Tribes v. Randy L. Thomas, case numbers AP9012425 Abduction, AP90-12426 Rape, AP90-12427 Attempted Criminal Homicide and AP90-12428 Reckless
Endangerment at the Colville Confederated Tribes (CCT) courthouse in Nespelem, Washington on September 14,
1990.
After reviewing the written file and hearing oral arguments of counsel the Appellate Panel dismisses with
prejudice the charges AP90-12425 Abduction, AP90-12426 Rape and AP90-12427 Attempted Criminal Homicide.
The Panel also dismisses without prejudice charge AP90-12428 Reckless Endangerment.
DISCUSSION
Issue 1
Was the Defendant Denied Due Process and Substantial Justice in That an Attorney Was Not Appointed to
Represent Him in this Tribal Court Proceeding?
The Appellate Panel felt that counsel for the appellant amply presented his argument that defendant
Thomas was denied due process in that an attorney was not appointed to represent him. The Panel however
disagrees with counsel's view that the Colville Confederated Tribal (CCT) Court was in such a situation that lawyers
could be made available to represent indigent defendants. The Panel believes that situation did not exist when this
case came to bar, and without the current Tribal Public Defender's office the Panel believes that current defendants
would still be forced to proceed without attorney services.
The Panel however believes that the CCT failed to provide due process and substantial justice to defendant
Thomas. The Panel feels that the Court should have exercised greater latitude in providing the pro se defendant with
pre-trial and in-court advice in light of the defendant's personal history and the ramifications of the alleged charges.
Issue 2
Was the Defendant Denied Due Process and Substantial Justice When, Though He Had Requested a Jury
Trial, His Request Was Deemed "Waived" with No Notice to Him.
The Appellate Panel found that Randy Thomas’ demand for a jury trial was well known to the Court and
Court personnel. The Panel acknowledges the fact that at Mr. Thomas’ arraignment he was informed orally, but not
in an explicit manner, that if he failed to notify the Court 10 days prior to his scheduled jury trial that a jury trial was
still requested, the request would be considered waived. The Panel was unable to locate documentation that the
defendant was further advised of the ramifications of his failure to give notice that a jury trial was still requested.
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There is no written record in the clerk’s papers or the Court file indicating affirmatively that Randy Thomas
understood and agreed to the waiver of his right to a jury trial.
In addition, the Panel feels that the Tribal Code is not clear on this issue. There is no indication that Randy
Thomas was advised of the CTC provision 4.1.05 which addresses the 10 day waiver rule. CTC 4.1.05 states:
“The court must be notified by the defendant 10 days prior to a scheduled jury
trial that a jury trial is still requested, or the right to a jury trial is waived.”
This provision appears in a chapter called “General Rules” and not in that portion devoted to criminal
procedure wherein provision CTC 2.6.05 is found which states:
“Any person accused of an offense punishable by imprisonment may demand a
jury trial. The demand may be made by oral demand in open court or by filing a
written demand with the clerk. In any case, the demand must be made at least 14
days before the date set for trial, or the right shall be deemed waived...”
The Panel concludes that the waiver provision should also be found in the criminal procedure section of the
Tribal Code, to insure that defendants, especially pro se defendants, have the opportunity to receive notice of an
important waiver of rights guaranteed by the Indian Civil Rights Act. In addition, the Panel believes that in order for
the waiver to be fair the defendant needs to receive some type of written notice.
Issue III.
Was the Defendant Denied Due Process and Substantial Justice by Way of Judicial Misconduct and
Irregularities in the Proceeding Both Before and During Trial?
The Appellate Panel found that the Court denied the defendant due process by discouraging the attempt to
subpoena Dr. Vicki Black. The Panel believes that clarification regarding subpoenas needs to be added to the Tribal
Code. At this time a pro se defendant may read the Code and conclude that all that is needed for the defendant to
have witnesses testify is to identify to the Court who they are. There is no indication that the defendant may be
responsible to provide for their costs. Similarly there is no explanation as to what an indigent without financial
resources is supposed to do, in regards to those expenses. In this case it appears that the testimony of Dr. Black was
crucial to the rape charge. The Doctor’s report which was filed with the Defendant/Appellant’s Reply Brief to
Plaintiff/Appellee Brief raised questions that needed to be answered before the Trial Court entered a finding of
guilty beyond a reasonable doubt.
The Appellate Panel found that the Trial Court judge’s direct statements regarding his assessment of the
alleged victim’s credibility and veracity before the victim had testified did deny the defendant due process and
substantial justice. In addition the defendant was further denied due process in not being afforded sufficient time to
review documents and prepare for the testimony of the complaining witness. The Panel found that the Trial Court
judge should have given the defendant more than approximately 15 minutes of time to review the discovery
documents in light of the seriousness of the charges against him. The Panel believes the defendant was precluded
from reviewing documents which might have been useful in examination of witnesses against him and particularly
the alleged victim. The Panel believes that the seriousness of the offenses charged should have had some bearing on
the Court’s actions with regard to trial procedure. The Panel holds that defendant Thomas, acting pro se, with
limited education and understanding, was entitled to more deference than was accorded him by the Court in this
proceeding to the final result that not only was substantial justice impaired, but that he was denied due process by
the Court’s conduct.

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Issue IV.
Was Defendant Denied Due Process in That the Court Erred in Finding the Defendant Guilty of All Charges
When There Was No Substantial Evidence of Record That All Elements of All the Offenses Charged Had
Been Proved Beyond Reasonable Doubt?
The Panel finds that the defendant was denied due process in that the Court found the defendant guilty of
all charges when there was insufficient evidence of record that all elements of all the offenses had been proved
beyond a reasonable doubt.
General principles of law require that if there is any reasonable doubt as to any element of an offense then
the trier of fact has a duty to return a verdict of not guilty. The only evidence before the Trial Court with respect to
the actions of the defendant on the night in question was the testimony of Ms. Nanpuya. The Appellate Panel found
her testimony insufficient to establish each and every element of each of these offenses.
In closing, the Appellate Panel was surprised that there was no record of declination to prosecute these
charges under the Indian Major Crimes Act by the federal government. If the charges had been substantiated the
Panel questions whether or not the penalties, which are limited by federal law, would have been severe enough to
punish the offender.
For the above reasons the Colville Tribal Court of Appeals dismisses with prejudice the charges 89-12425
Abduction, 89-12426 Rape and 89-12427 Attempted Criminal Homicide. The Court of Appeals also dismissed
without prejudice the charge 89-12428 Reckless Endangerment.

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REVERSED IN PART

Melvin R. LaCOURSE, Appellant,

See 1 CCAR 46 vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP90-13206,AP90-13207, AP90-13208, 1 CTCR 49
1 CCAR 38
[Frank S. LaFountaine, Office of Public Defender, Colville Confederated Tribes, Nespelem WA , counsel for Appellant .
Maureen Byers, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem, counsel for Appellee.]

Argued January 16, 1991. Decided January 21, 1991.
Before Chief Judge Bonga, Judge Miles and Judge Ward
BONGA, C.J.
After reviewing the record and applicable law, the Colville Tribal Court, in a judge trial on August 20, 1990 found
the defendant guilty of the charges Reckless Driving 90-13206, Driving While Intoxicated 90-13207 and Driving While
Suspended 90-13208. An appeal was timely taken and the Colville Tribal Appellate Court after reviewing the tapes, Court
record and hearing oral arguments on the appeal Affirms the Colville Tribal Trial Court in part and Remands for further
determination the Order for Restitution.
DISCUSSION
I. Did the Trial Court Err by Denying Defendant/Appellant's Motion to Dismiss on the Grounds That the Charged
Offenses Did Not Occur on "The Roads of the Colville Indian Reservation" or on a "Public Highway"?
The incident forming the basis for the above charges occurred in the driveway of HUD house 1021 in Nespelem,
Washington, adjacent and connected to a public road within the Colville Reservation. The defendant argued that the charged
traffic offenses should be dismissed as the offenses did not occur on the "roads of the Colville Indian Reservation” as
required by Colville Tribal Code (CTC) 9.1.03 or a "public highway" as required by CTC 9.1.05. The Appellate Court
disagrees with the defendant's position.
Under the definitions provided in section 9.1.06 of the Code, "public highways" are construed to mean "all roads,
public and private (emphasis added), within the jurisdiction of the Colville Confederated Tribes." A driveway, according to
Webster's dictionary, 1970 Ed. is "a short private road leading from a street to a house, garage or parking lot." The Appellate
Panel finds that the driveway at issue in this matter is a "private road" within the meaning of a public highway as defined at
CCT 9.1.06, and therefore satisfies the requirements of CTC 9.1.05, Driving While Suspended. Section 9.1.03 of the Colville
Tribal Code specifies that it is unlawful to operate a motor vehicle on the roads of the Colville Indian Reservation
(emphasis added) in violation of Chapter 9.1.01. Further, section 9.1.01 incorporates the substantive portions of several
chapters of the Revised Code of Washington, among them chapter 46.61. That chapter, in section 46.61.005 states that its
provisions refer exclusively to the operation of vehicles upon highways except: "(2) The provisions of ... RCW 46.61.500
through 46.61.520 shall apply upon highways and elsewhere throughout the state" (emphasis added). Sections 46.61.500,
Reckless Driving and 46.61.502, Driving While Intoxicated are therefore not limited to driving on highways but may be
applied to locations "elsewhere throughout the state" including public and private roads on the Colville Reservation.
The Colville Tribal Appellate Court therefore affirms the Trial Court's finding that the defendant is guilty of Driving
While Suspended a violation of CTC 9.1.05; Reckless Driving, a violation of CTC 9.1.01 (RCW 46.61.500); and Driving
While Intoxicated a violation of CTC 9.1.01 (RCW 46.61.502).

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Ii. Did the Trial Court Err by Allowing Officer Hall to Testify as to What Was Told to Him by Julie Wiley?
Defendant asserts that Officer Hall's testimony as to what Julie Wiley told him was hearsay and therefore
inadmissible. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial, offered in evidence
to prove the truth of the matter asserted. ER 801(c). The Court finds that Officer Hall's testimony as to Ms. Wiley's statement
to him was offered not to prove the guilt of the defendant but instead to provide the basis for Officer Hall's decision to seek
out the defendant for investigation of the incident. Thus Officer Hall's testimony was not hearsay.
Defense counsel asserts that the defendant was denied the right to be confronted by the witness against him. The
Appellate Court dismisses the claim as Julie Wiley was present at trial, was called as a witness for the prosecution, was
available for cross-examination, and indeed could have been called as a witness by the defense had Counsel so desired.
Since Officer Hall's testimony regarding statements of Ms. Wiley did not constitute hearsay, and since Ms. Wiley
was fully available for examination by Defense Counsel, there was no error by the Trial Court in permitting Officer Hall's
testimony.
III. Did the Trial Court Err by Failing to Make Specific Findings Regarding the Defendant's Ability to Pay Before
Including in the Judgment and Sentence a Financial Obligation to Make Restitution?
The Appellate Panel finds merit to the defendant's position that the Trial Court did err in entering a sentence of
restitution without first finding that the defendant had the present resources to comply with the final court order. The Appeals
Court believes that under the Indian Civil Rights Act and the Colville Tribal Civil Rights Act due process requires the Trial
Court to determine the defendant's ability to pay the restitution before imposing the monetary obligation. The Appellate Panel
reverses that part of the sentence imposing financial obligations and, once a determination has been made regarding the
amount of damages to the garage, remands the decision for specific findings. If the record supports a conclusion that
LaCourse has a present or likely future ability to repay, the Court may reinstate the obligation.
It Is So Ordered that the guilty verdicts in CCT case numbers Reckless Driving 90-13206, Driving While Intoxicated 90-13207 and Driving While Suspended 90-13208 are affirmed with their respective sentences, with the
exception: that the Order for Restitution is Remanded to the Trial Court to determine the defendant's capability to make
restitution.

CAVENHAM FOREST PRODUCTS, INC., dba Omak Wood Products, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP87-CV87-751, 1 CTCR 50, 18 ILR 6037
1 CCAR 39
[Grant Degginger, Lane, Powell, Moss & Miller, Seattle WA, counsel for Appellant.
Bruce Didesch, Office of Reservation Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.]

Argued March 20, 1990. Decided February 22, 1991.
Before Chief Judge Bonga, Judge Stewart and Judge Chenois
BONGA, C.J.
The Appellate Panel of Judge Howard Stewart, Judge Edythe Chenois and Chief Judge David Bonga, following
meetings and discussions has made the following decision that is based on all materials referred to by both parties: Court

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cases, evidence, oral arguments, and volumes of references regardless of how trivial. It has taken days, weeks, months and
yes, years to come to this decision. The Appellate Panel hereby affirms the Colville Tribal Court's findings, conclusions of
law and issuance of a Temporary Injunction against Cavenham Forest Industries. Inc.
DISCUSSION
On August 14, 1978, the Confederated Tribes of the Colville Reservation (Tribes) enacted the Colville Interim Land
Use Development Ordinance (CILDO). The CILDO was developed by the Colville Business Council in recognition of
problems associated with uncontrolled development and the negative impacts that such development was having on
Reservation resources. CILDO 1.1. The CILDO froze all existing land uses on the Reservation until a zoning code and
comprehensive plan could be completed CILDO 1.2., 4.1.
Any property owner or user proposing to change or expand an existing use, engage in new construction or
subdivide, plat or partition any property within the Reservation is required to obtain a "development permit.” CILDO 5.2.,
5.3., 5.4., 7.1. It further directed the Planning Department to develop regulations to implement the Ordinance’s intent.
CILDO 6.4. In November1978, regulations were adopted by the Colville Business Council.
Cavenham Forest Industries (d.b.a. Omak Wood Products. Inc.) is a Delaware Corporation which harvests and
manufactures timber into finished wood products at numerous facilities throughout the United States. At the Omak Wood
Products mill on the Colville Indian Reservation, dimensional lumber and plywood are manufactured from logs Omak Wood
Products, Inc. (Omak) purchases from the Confederated Tribes and the U.S. Forest Service. Omak also cuts timber from its
own lands located on the Colville Indian Reservation.
In October, 1986, Omak applied to the Okanogan County Board of Adjustment to obtain a Conditional Use Permit
for an existing waste dump on its Reservation property. Okanogan County approved the application with certain conditions.
As an attachment to the County permit, the County Board recommended that Omak apply for the permit required by the
Tribe's Ordinance.
In December 1986, after becoming aware of Omak's Conditional Use Permit application for the waste dump and the
recommendation by the County Board that Omak comply with the CILDO, the Tribal Planning Department notified Omak by
certified mail of the applicability of the CILDO. The Tribes' letter advised Omak to comply with the Ordinance. Omak failed
to respond to the letter and continued operating the dump without complying with the CILDO or having been issued a Tribal
development permit. The Tribes brought an action in Tribal Court to enjoin Omak from using the dump until it complied with
CILDO. The Trial Court issued an Order directing Omak to comply with CILDO by making an initial application and
providing supporting documentation to the Tribal Planning Department in accordance with the procedures of the CILDO
regarding its activities at its landfill site within thirty days of entry of the Court's order. If Omak failed to comply with the
Court's order within the time period specified Omak would be enjoined from using the dump. Omak took exception to the
Trial Court's actions and timely appealed the matter to this Court.
I. Indian Tribes Have the Authority to Regulate Activities Within Their Territory as Part of Their Inherent
Sovereignty
In United States v. Wheeler, 435 U.S. 313, 322 (1978), the United States Supreme Court described the powers of
Indian tribes as “...inherent powers of a limited sovereignty which has never been extinguished.” F. Cohen. Handbook of
Federal Indian Law 122 (1945). The Confederated Tribes has the sovereign authority to control activities occurring within its
territory. As the Solicitor of the Department of Interior wrote in 1934:
Over tribal lands, the tribe has the rights of a landowner as well as the rights of a local
government, dominion as well as sovereignty. But over all the lands of the Reservation.
whether owned by the tribe, by members thereof or by outsiders, the tribe has the
sovereign power of determining the conditions upon which a person shall be permitted to
enter its domain, reside therein and to do business, provided only such determination is
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consistent with applicable federal laws and does not infringe any vested rights of persons
now occupying reservation land under lawful authority. "Powers of Indian Tribes." 55
Interior Decisions 14, 50 (1934).
The Solicitor concluded that:
In its capacity as a sovereign, and in the exercise of local self government, [a tribe] may
exercise powers similar to those exercised by any state or nation in regulating the use or
disposition of private property, save insofar as it is restricted by specific statutes of
Congress. Id. at 55.
The Supreme Court has consistently reaffirmed the Solicitor's opinion. See e.g. White Mountain Apache Tribe v.
Bracker, 448 U.S. 136, 141 (1980) "... Indian tribes retained attributes of sovereignty over both their members and their
territories." See also New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 332 (1983).
Land within the exterior boundaries of the Colville Reservation held in fee by a non-Indian, such as Omak's land, is
still considered part of the Reservation. Seymour v. Superintendent, 368 U.S. 351 (1962). See also, Confederated Salish and
Kootenai Tribes v. Moe, 425 U. S. 463, 478-79 (1976); United States v. Mazurie, 419 U.S. 544, 553-56 (1974). All lands
within an Indian reservation, including fee patented lands, are part of "Indian country." 18 U.S.C. 1151. DeCoteau v. District
Court , 420 U.S. 425, 427 n.1 (1975). See also, Washington v. EPA, 752 F.2d 1465, 1467 n.1 (9th Cir. 1985).
GENERAL TRIBAL LAND USE AUTHORITY OVER ALL THE LAND OF THE RESERVATION
"It is beyond question that land-use regulation is within the Tribes legitimate sovereign authority over its lands.”
Segundo v. City of Rancho Mirage, 813 F.2d 1387 (9th Cir. 1987) (citations omitted). See, Santa Rosa Band of Indians v.
Kings County, 532 F.2d 655 (9th Cir. 1975). cert. denied, 429 U.S. 1038 (1977); accord. United States v. County of
Humboldt, 615 F.2d 1260 (9th Cir. 1980): Snohomish County v. Seattle Disposal Co., 70 Wn.2d 668 (1967): cert. denied, 389
U.S. 1016 (1967); 25 C.F.R. 1.4.
The ability of the Colville Tribes to utilize the reservation land base and other Indian lands is critical to the Tribes'
ability to develop and prosper economically. Moreover, one of the most basic incidents of sovereignty is the government's
power to regulate land-use in order to protect the health and welfare of the community. See Village of Euclid v. Ambler
Realty Co, 272 U.S. 365 (1926).
In 1976, the Solicitor of the Department of Interior recommended approval of tribal zoning codes regulating the use
of fee lands by Indians and non-Indians, based on the conclusion that power to regulate land use is among the powers
retained by Indian tribes (Oct.13. 1976 letter to Secretary of interior).
II. The Tribes Authority Extends to Non-Indian Activities on Fee Land Within the Reservation
Scope of Tribal Regulatory Jurisdiction
Congress and the courts have recognized that tribal authority includes the ability to regulate activities on all land
within the tribes border. In Iowa Mutual Insurance Co. v. LaPlante, 107 S.Ct. 971 (1987), the Supreme Court discussed the
extent of a tribe's jurisdiction.
Tribal authority over the activities of non-Indians, on reservation lands is an important
part of tribal sovereignty. (citations omitted). Civil jurisdiction over such activities
presumptively lies in the tribal courts unless affirmatively limited by a specific treaty
provision or federal statute. Id. at 977.
The Supreme Court's view in LaPlante is consistent with the long standing federal policy of fostering tribal selfgovernment. See. e.g., T

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Aconfederated_colville%3A2423a428575475e4. Public record. Not legal advice.