Michael RAYTON and Stephanie PALMER, Appellants,

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Michael RAYTON and Stephanie PALMER, Appellants,

vs.

COLVILLE CONFEDERATED TRIBES, et al., Appellee.

Case No. AP21-013/014, 8 CTCR 27

16 CCAR 01

[Mark Carroll, appeared for Appellants.

Craig Jacobson, appeared for Appellee.

Trial Court Case No. CV-OC-2021-44075/76]

Decided January 3, 2023

Before Chief Justice Anita Dupris, Justice Dennis L. Nelson, and Justice Jane M. Smith

Dupris, CJ

SUMMARY

Appellants Michael Rayton (Rayton) and Stephanie Palmer (Palmer) were each terminated from

their respective jobs with the Colville Confederated Tribes (CCT). Rayton was terminated in August 2019

for alleged violations of the Tribes’ Employee Procedures Manual (EPM). Palmer was terminated in

September, 2019. Both employees were terminated under the 2018 EPM terms and procedures.

Rayton followed the EPM procedures current at the time to appeal his termination. He had his

pre-hearing conference and had an Internal Review Board (IRB) hearing scheduled for October, 30, 2019.

On October 10, 2019, the Colville Business Council (CBC) amended the 2018 EPM through

Resolution 2019-633. The Resolution specified that the amendments were to be effective immediately

upon approval by the CBC.

On October 11, Palmer e-mailed her request for an IRB Hearing. Then on October 15, 2019, five

days after the passage of Resolution 2019-633 (Resolution), she requested a hearing be changed to before

an Administrative Law Judge (ALJ) as provided in the Resolution. Her request was denied. She had a prehearing to the IRB on October 29, 2019. Her IRB hearing was on November 20, 2019, at which time her

termination was affirmed.

Rayton had his IRB hearing on October 30, 2019, at which time he asked that his appeal be

changed to before an ALJ. His request was denied. His termination was affirmed by the IRB.

Both Rayton and Palmer filed civil cases in the Trial Court on their respective denials of having

hearings before an ALJ instead of the IRB. The Trial Court affirmed the denial of the ALJ hearings in both

cases. This appeal followed. Both appeals were consolidated at the Initial Hearing on February 18, 2022

because of the similar issues raised by both Appellants. Based on the reasoning below, we affirm the Trial

Court’s decisions.

ISSUES

1.

Did the Trial Court err in finding Resolution 2019-633, in which IRB review of

employment issues were to be heard by an Administrative Law Judge, not applicable to

Appellants’ employment dismissals, especially in light of allegations of lack of

procedural and substantive due process claims?

2.

Did the Court err by not granting Appellants’ requests that Appellants be given

information regarding the Tribes’ insurance policy?

STANDARD OF REVIEW

Both issues are issues of law. The standard of review is de novo. CCT v. Naff, 2 CCAR 50 (1995).

DISCUSSION

1. Did the Trial Court err in finding Resolution 2019-633, in which IRB review of

employment issues were to be heard by an Administrative Law Judge, not applicable to

Appellants’ employment dismissals, especially in light of allegations of lack of

procedural and substantive due process claims?

Resolution 2019-633, passed on October 10, 2019, states, in relevant part, “...to enact the attached

amendments to the EPM effective immediately upon CBC approval.” (Emphasis added.). The

amendments changed employment termination review from the IRB to an Administrative Law Judge

(ALJ), and allows appellants to be represented by an attorney.

The Trial Court first held there was no applicable tribal law regarding retrospective versus

prospective application of a law. It held that absent a legislative intent by the CBC to apply the new EPM

requirement to include pending cases, it was only applicable prospectively. The Court analyzed the

Resolution’s language in light of Resolution 2021-321, which states the amendment to the Tribes’ Civil

Rights Statute, CTC, Chapter 1-5, was effective immediately, and applies to all cases, including pending

cases. The Court found, by this analysis, that the CBC evinced a lack of intent to apply the Resolution

retrospectively to all pending cases.

The Court held, as to statutory construction and interpretation, that “.’.. the courts have evolved a

strict rule of construction against a retrospective operation, and indulge in the presumption that the

legislature intended statutes or amendments thereto to operate prospectively.’” (citing Poston v. Clinton,

66 Wn.2d 911, 915-16, 406 P.2d 623 (1965)).

Appellants argue, citing CTC §1-1-7(b), that the phrase “effectively immediately” should be

given their plain meaning, which would be on the very date the Resolution became effective, i.e. October

10, 2019, a date prior to either of Appellants’ IRB hearings.

We review this appeal on the questions of law, and when a question of fact is raised, we give

deference to the Trial Court’s findings under an abuse of discretion standard. Before we assess the

arguments of whether the Trial Court found sufficient evidence that due process was provided to

Appellants in their IRB hearings, we assess when the jurisdiction attached to their cases. This is a

question not yet answered by this Court regarding administrative cases.

In both civil and criminal cases we have held that jurisdiction attaches once a petition or

complaint is filed. See, Simmons v. CCT, 6 CCAR 30 (2002) (accepting Washington rule, which follows

majority rule, as applying in criminal cases that jurisdiction attaches when the complaint is filed), and

Carson v. Barham, 7 CCAR 17 (2003) (the “first to file” rule grants jurisdiction to the first court where the

matter has been filed.)

We hold the same principle applies to administrative cases. Both Appellants filed first in the IRB.

We review the Trial Court’s decision only for alleged violations of due process and equal protection by

the IRB that would support a ruling to reverse and remand. As stated before, our review is for abuse of

discretion; we will not supplant our reasoning for the Trial Court’s just because we would have decided

differently had we been the judge. In order to reverse The Trial Court’s findings on due process the

findings must be unreasonable or based on untenable grounds. See, eg., Louie v. CCT, 7 CCAR 46 (2004);

CCT v. Condon, 12 CCAR 12 (2015); Randall/LaCourse v. CFS, 11 CCAR 39 (2015).

Appellants argue the lack of due process in the IRB process, alleging the information provided them

regarding their dismissal was late in coming, or not given to them at all. They did not have adequate

information to prepare for their respective hearings.

In their respective Notices of Appeal both Appellants assert they were not provided due process

by the Trial Court because the Judge dismissed their cases without allowing them a hearing on their

motions and complaints regarding whether there were or were not irregularities in the IRB.

Appellee asserts both Appellants were provided adequate due process in their IRB hearings: they

were given adequate notice and an opportunity to be heard. Appellee cites to Wilson v. Gilliland, 8 CCAR

64 (2006) and CCT v. Bessette, 12 CCAR 29 (2015) for the applicable due process standards established

by this Court in cases involving employee terminations.

The Trial Court held there was no reviewable evidence presented to determine any due

process problems with the IRB hearings provided Appellants. All parties were directed by the Trial Court

to present a list of evidence presented at their IRB hearings. The Court found, upon a review of

Appellee’s lists for both Appellants, that there was evidence that both Appellants were provided adequate

due process.

As to Appellant Palmer, the Court found she failed to provide the Court with a descriptive list of

any documents she did receive from Appellee, whereas Appellee provided a list of the documents it

provided to Appellant Palmer. As to Appellant Rayton, the Court found that the descriptive lists of both

parties showed that Appellant Rayton knew why he was terminated from his job, and had the opportunity

to present evidence on his behalf regarding the reasons he was terminated. The Court held this was

adequate due process.

The record supports the Trial Judge’s findings of adequate due process. The Trial Judge’s

decisions regarding the adequate due process are not based on unreasonable or untenable reasons. We so

hold.

2. Did the Court err by not granting Appellants’ requests that Appellants be given

information regarding the Tribes’ insurance policy?

The Tribes’ Civil Rights Statute, CTC Chapter 1-5, provides for a limited waiver of sovereign

immunity, and if available, an insurance policy to cover the Tribes’ liability for wrongful actions under

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CTC §§ 1-5-2 through 1-5-4. Appellants base their civil complaints on this Chapter, therefore arguing

they should have access to the information regarding the Tribes’ insurance policy.

Appellee assert that Appellant’s would only have access to the information if they have

established a valid claim under CTC § 1-5-2. The Trial Court held that some of the bases of the

Complaints are tort actions, and the Court is without jurisdiction over torts. We have held so in Dick/

Marconi v. CCT 15 CCAR 52 (2022).

As discussed supra, the Trial Court has found no violations of Appellants’ due process rights, and

we have upheld this ruling. There is an insurance policy, but Appellants have not established a right to

review it in that is not applicable to their cases. We so hold.

CONCLUSION

We find (1) jurisdiction over the two grievance appeals was in the IRB, and not under the new

EPM section that allows for an ALJ; (2) the record supports the Trial Court’s findings that each Appellant

received adequate due process in their IRB hearings, and Resolution 2019-633 only applies prospectively;

and (3) the record supports the Trial Judge’s finding that Appellants have not met their burden to establish

the applicability of CTC Chapter 1-5 to their causes of actions, and there is no right to be given

information on the Tribes’ liability insurance.

We so hold.

Based on the foregoing, now, therefore,

It is ORDERED that the Trial Court’s decisions in these matters are AFFIRMED and the Appeal

is DISMISSED. The matter is REMANDED to the Trial Court for actions consistent with this Opinion.

David PRIEST, Appellant,

vs.

COLVILLE CONFEDERATED TRIBES, Appellee.

Case No. AP23-001, 8 CTCR 28

16 CCAR 05

[Appellant appeared pro se.

Taima Carden appeared for Appellee.

Trial Court case no. CR-2022-45091]

Decided March 7, 2023.

Before Chief Justice Anita Dupris, Justice Mark W. Pouley, and Justice Mary Finkbonner

Dupris, CJ

This matter came before this Court for an Initial Hearing on February 17, 2023. Appellant, David

Priest, appeared in person and pro se. Appellee, CCT, appeared through its spokesperson, Taima Carden.

The Court, after reviewing the record and applicable law, finds cause to deny the appeal and remand the

matter to the Trial Court. The decision is based on the reasoning set out below.

ISSUE

Appellant appeals the Trial Court Order Denying his Motion to Reconsider his 720 day jail

sentence, alleging the extended jail sentence violates his rights under the ICRA’s amendments regarding

the Tribal Law and Order Act (TLOA). He raises two issues under these arguments:

1. Does his extended jail sentence violate TLOA because, he alleges, the presiding Judge for his

arraignment was not an attorney? And

2. Does his extended jail sentence violate TLOA because, he alleges, the jail facility doesn’t

meet the standards required by TLOA?

FACTS

Appellant was charged with two drug charges (Possession of Heroin, and Manufacture, Cultivate,

Deliver fentanyl) on July 5, 2022.

On July 5, 2022 Appellant was arraigned before Judge Sophie Nomee, a lay judge, and a member

of the Colville Tribal Court bar. He entered guilty pleas to the two charges and then was appointed a

spokesperson from the CCT Public Defender’s Office for the sentencing.

At the Initial Hearing Appellee, Colville Confederated Tribes (CCT), through its spokesperson,

stated that the Public Defender was available at the hearing and advised Appellant that he should not enter

guilty pleas to the two charges, but Appellant made the decision to do so anyway.

On August 23, 2022 Appellant was sentenced by Judge Dana Kelley, a member of the WA State

Bar. He was sentenced to consecutive sentences of 360 days for each offense, for a total of 720 days. He

was given credit for 55 days served. There were no other conditions of his sentence; the case was to be

closed at the completion of his jail sentence.

Including the 55 days he was credited with, Appellant had completed 167 days of his 720

sentence by the date he filed his appeal, i.e. December 13, 2022. This left 553 days of his original

sentence still due.

On November 14, 2022, Appellant filed a Motion to Vacate, Set Aside Judgment/ Sentence with

the Trial Court. His brief Motion stated he was proceeding pro se, and that the basis for his motion was

for violations of 25 U.S.C. 1302( c)(3) and (5). He states there are violations of the procedural protections

therein (TLOA and ICRA). He states a sentence of 720 days was illegal.

In his Motion to the Trial Court he made the identical arguments he has asserted in this Appeal.

Judge Kelley denied the Motion on December 13, 2022, finding “...there is no basis in law or fact to

support it”. He made no other findings regarding Appellant’s arguments.

Appellant filed an appeal of this last Trial Court order denying his motion on December 13, 2022.

DISCUSSION

We have addressed TLOA 5 other times in this Court. Four of the cases involved the lack of

Rules of Evidence. In Frank v. CCT, 13 CCAR 10 (2016),and Martinez v. CCT, 13 CCAR 12 (2016) we

found that sentences over 360 violated TLOA because there were no Rules of Evidence as required by

TLOA.

In Desautel/Randall v. CCT, 13 CCAR 03 (2016) we found that TLOA was violated in extended

sentences for lack of Rules of Evidence, then we adopted the FRE’s as guidance until such time as the

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Tribes established its own Rules of Evidence.

In Carson v. CCT, 13 CCAR 25 (2017) we found no TLOA violation for lack of Rules of

Evidence because of our ruling in Desautel/Randall.

In Martinez the question was raised regarding the qualification of the Judge under TLOA, but we

found the question moot because we had ruled the extended sentence violated TLOA because of the lack

of Rules of Evidence.

The last, and most recent case dealing with TLOA was Picard v. CCT, 15 CCAR 01 (2020).

Picard recognized that sentences over 1 year may be entered by the Trial Court if the defendant is

provided (1) the right to effective assistance of counsel; (2) indigent defense by a bar licensed attorney;

(3) a presiding judge to be licensed by any jurisdiction and to have sufficient training in presiding over

criminal proceedings; (4) publically available criminal laws, rules of evidence, rules of criminal

procedure, and rules governing the recusal of judges; and (5) the court maintains a record of proceedings.

Picard found compliance with all of the requirements set out above that were raised by Appellant.

Regarding the two issues raised herein, i.e. unlicensed judge and inadequate jail, Picard found (1) the

issue of the judge’s qualifications was not raised as an issue; and (2) the issue of the adequacy of the jail

was raised for the first time on appeal, and there were insufficient facts to determine the nature of his

objections to the jail. We did not address either issue as not properly before the Court.

Although Appellant had a spokesperson at his sentencing, he has filed this case pro se. He is

appealing the latest Court order in his case in which the judge, (a licensed WA state attorney), denied his

Motion to Vacate, Set Aside Judgment and Sentence. He raises issues about his Judgment and Sentence

for the first time at the Trial Court level. He states Judge Nomee was not qualified to hear his case initially

in that she was not a licensed attorney. Judge Nomee, a lay judge, took Appellant’s guilty plea at a

telephonic hearing. On August 23, 2022 he was sentenced to the 720 days on a consecutive sentence by

Judge Kelley.

We do not rule on alleged facts for the first time in our Court. Fact-finding is initially addressed at

the Trial Court. Appellant made his arguments that are before us in this appeal through a motion to the

Trial Court through mere statements of the alleged violations with no other facts. He alleged Judge

Nomee “is not licensed to practice law by a Jurisdiction of the United States...” and she “...made a ruling,

telephonically, without Attorney present....” He did not offer any alleged proof of this statement in his

motion.

Further, he alleged in his motion that “CTCF (tribal Jail) is not in compliance with four types of

facilities required” by TLOA. There are no further allegations of proof of this assertion.

We recognized in Picard, supra, that TLOA requires “a presiding judge to be licensed by any

jurisdiction and to have sufficient training in presiding over criminal proceedings” (my emphasis) . In

Martinez, supra, Judge Nomee’s qualifications were challenged. We found, as to Judge Nomee, that she

had passed the Colville Tribal Bar Examination, and had attended several judicial education classes at the

National Judicial College (NJC) in Reno, Nevada. We found she holds a Tribal Judicial Skills Certificate

from the NJC. We did not decide regarding the sufficiency of these qualifications, however, since the

judgment and sentence were reversed for other reason.

We find we have not been presented with sufficient bases to grant an appeal in this case. The

challenges to Judge Nomee and the tribal jail rest on mere suppositions and not on any substantive

discussion from the Trial Court. Appellant waited about 5 months before raising his issues at the Trial

Court. His appeal is a collateral attack on his Judgment and Sentence, which was not timely appealed

when it was entered on August 23, 2022, and should be denied.

Based on the foregoing, now, therefore

It is ORDERED the Appeal herein is DENIED and this matter is REMANDED to the Trial Court

for actions consistent with this decision.

COLVILLE CONFEDERATED TRIBES, Appellant

vs.

Justine JAKE, Appellee

Case No. AP23-002, 8 CTCR 29

16 CCAR 08

[Taima Carden, Office of Prosecuting Attorney, for the Appellant.

Michael Humiston, Attorney, for the Appellee.

Trial Court No. CR-2022-45058; CR2022-45059; and CR-2023-46001]

PROCEDURAL SUMMARY

Appellee, Justine Jake, was charged with two drug charges on January 3, 2023, and was arraigned

on the same day. A bail hearing was also held on that date for two other outstanding cases. The Court

granted Appellant, Colville Tribes, request for bail setting it at $250.00 each for the three charges, i.e.

$750.00 total.

On February 3, 2023 Appellee filed a Writ of Habeas Corpus alleging she needed immediate

medical care for broken, infected teeth. The Judge granted the Writ and released Appellee on personal

recognizance without providing notice to Appellant of the Writ, and without a hearing on the request.

Appellant filed a timely appeal on February 9, 2023 and this Court held an Initial Hearing on February 17,

2023, at which we found the parties were to file briefs on the issue.

ISSUE

Is it appropriate for the Tribal Court to use CTC § 2-2-211 to address bail modification when bail

has already been allowed?

STANDARD OF REVIEW

The issue is a question of law. The standard of review is de novo. CCT v. Naff, 2 CCAR 50

(1995).

DISCUSSION

We addressed the issue of using a Writ of Habeas Corpus for bail issues in Parisien v. CCT, 11

CCAR 51 (2014). It was the fourth case in which this Court reviewed CTC §2-2-211 in light of

interlocutory appeals alleging excessive bail. See, Matt v. CCT, 11 CCAR 50 (2013), Vargas v. CCT,

AP13-016IA (unpublished opinion); and Friedlander v. CCT, AP13-017IA (unpublished opinion).

In Parisien we held “...the statutory law of the Tribes first directs the appellants to file a Writ of

Habeas Corpus on the issue of bail (CTC §2-2-211) before bringing the matter before the Court of

Appeals.” We now hold this is the wrong interpretation of CTC §2-2-211, and we overturn this ruling

based on the reasoning below.

CTC § 2-2-211, Writ for Purpose of Bail, states: “When a person is imprisoned or detained in

custody on any criminal charge, for want of bail, such person is entitled to a Writ of Habeas Corpus for

the purpose of giving bail, upon averring that fact in his petition, without alleging that she is illegally

confined.” (Emphasis added). In our previous cases, culminating in Parisien, supra, we did not consider

the part of the statute that referred to “for want of bail.”

Further, in Parisien we held that the Trial Court’s finding that a motion to reduce or reconsider

bail reduction was more appropriate was not supported by the law. This was in error. Upon a careful

reading of the statute, a Writ of Habeas Corpus for bail purposes is limited to those who have not been

granted any bail. The defendant does not have to allege she is being illegally confined if she is filing

under this statute.

In this case Appellee was granted bail; bail was set at $250.00 for each case, for a total of

$750.00. Based on our caselaw at the time of Appellee filing the Writ of Habeas Corpus to address her

request to be released on bail, Appellee was not in error. The Trial Court, however, did not follow the

statute. It did not give notice to Appellant nor hold a hearing on the Writ. See CTC §§ 2-1-213 to 2-1-215.

There is nothing in the record to show why the Trial Court did not follow the statute.

Whether a Writ would be appropriate in cases in which excessive bail is set is an issue not

currently before us; however, it could raise a concern that the excessive bail is illegal, and, therefore,

subject to a review under this statute causing the defendant to be illegally confined. We will save that

issue for a more appropriate case.

Based on the foregoing we now hold that the part of Parisien v. CCT, 11 CCAR 51 (2014),

which requires a defendant to file a Writ of Habeas Corpus pursuant to CTC § 2-2-211 before seeking a

bail reduction or change is OVERTURNED, and it is appropriate to request bail changes by motions

before the Trial Court. This does not affect the use of CTC § 2-2-211 when a defendant is being held

without bail. We further hold that the Order of the Trial Court herein dated February 7, 2023 is

REVERSED and this matter is REMANDED for further action consistent with our opinion.

It is so ORDERED.

COLVILLE CONFEDERATED TRIBES, Appellant,

vs.

Melissa LOUIS-WILLIAMS, Appellee.

Case No. AP23-003, 8 CTCR 30

16 CCAR 10

[Tim Rybka, Attorney, for Appellant.

Mark Carroll, Attorney, for Appellee.

Trial Court Case No. CR-2018-41032]

Decided June 1, 2023

Before Hon. Anita Dupris, Hon. Theresa M. Pouley, and Hon. R. John Sloan Jr.

Dupris, CJ

PROCEDURAL HISTORY

On March 2, 2018 Appellant filed a criminal complaint against Appellee alleging one count of

Misuse of Public funds, CTC § 3-1-132, one count of Fraudulent Use of a Credit Card, CTC § 1-3-49, and

three counts of Obstructing Justice, CTC § 3-1-134. Appellant hired an outside spokesperson to prosecute

the case. On April 26, 2018, Appellant filed an Amended Complaint on the same charges. On January 17,

2018 then Chief Judge Steckel admitted Mr. Rybka to practice in the Colville Tribal Court.

Appellee brought her issues before the Trial Court through several motions to dismiss the charges

against her and appealed the rulings of the Trial Court denying the motions to dismiss. We entered an

Opinion Order on November 16, 2018 dismissing the Appeal, affirming the Trial Court, and remanding

the case to the Trial Court.

Appellee/defendant filed a motion to dismiss the case on April 29, 2019, alleging Appellant’s

Special Prosecutor, Tim Rybka, was not a member of the Colville Tribal Court Bar and, therefore, could

not represent Appellant. On May 22, 2019 Chief Judge Steckel held that Mr. Rybka had met the minimum

requirements of being a member of the bar set out in CTC § 1-1-181, the Tribes specifically hired him to

represent the Tribes in this case as a special prosecutor, and the Chief Judge had the authority, when

necessary, to waive the requirement that Mr. Rybka take a bar exam. Mr. Rybka signed a Spokesman’s

Oath on May 9, 2019 and Chief Judge Jordan admitted him to practice before the Colville Tribal Court by

Order dated May 22, 2019.

Appellee filed an Interlocutory Appeal on the May 22, 2019. The Interlocutory Appeal was denied

by Order dated June 13, 2019; we found that the issue did not rise to the high standards of interlocutory

review of an order as set out in COACR 12-A and CTC § 1-2-117. We found the “Code provides for

admission of bar members by the Court. There is nothing to restrict (or define)the procedures for doing

so, leaving it to the discretion of the Court.”

Appellee has continued to challenge Mr. Rybka’s representation of the Tribes/Appellant, asking

that the criminal charges be dismissed because Mr. Rybka was not qualified to represent litigants in the

Tribal Court. She relies on CTC § 1-1-180. On August 16, 2022 Associate Judge Kelley granted

Appellee’s Motion to Dismiss the Complaint against her holding that on March 2, 2018 and April 26,

2018, the operatives dates of the filing of the Complaint and the Amended Complaint respectively, Mr.

Rybka was not a member of the Colville Tribal Court Bar.

Appellant filed a timely Appeal on the issue. The Initial Hearing was held on April 21, 2023, at

which time we reversed and remanded the case to the Trial Court. The reasoning of the decision is set out

below.

ISSUE AND STANDARD OF REVIEW

The issue before us is a question of law, that is, is Mr. Rybka a legal member of the Colville

Tribal Court Bar? The standard of review is de novo. CCT v. Naff, 2 CCAR 50 (1995).

DISCUSSION

We are asked to overturn the Trial Court’s latest finding regarding Mr. Rybka’s status as a

Spokesperson eligible to practice in the Coville Tribal Court. It appears Appellee had filed at least nine

Motion to Dismiss at the Trial Court for various reasons, and the case had been before at least five Judges

throughout the pendency of the case.

According to Appellant’s Motion to Reconsider Judgement [sic] of the Order of August 8, 2022

Associate Judge Kelley dismissed the complaint because he found Mr. Rybka was not allowed to practice

in the Trial Court in that he had not met the statutory requirements at the time the first complaint was

filed, i.e. March 2, 2018. It appears the Judge relied on some language in our November 16, 2018 Opinion

Order regarding pro hac vice practices. In that Order we specifically found that the issue was not first

raised at the trial level, so we would not consider it. We went on with some dicta regarding the nature of

pro hac vice practice in other Courts and stated it was the first an issue to consider at the Trial Court.

We do not know why the fact that Mr. Rybka was admitted to practice first by Chief Judge

Steckel in 2017, and again by Chief Judge Jordan in 2019 was not considered by the Court in the latest

ruling of January 13, 2023, the basis of this current appeal. Secondly, we do not know why such a

procedural question would invalidate serious criminal charges which have not yet, it appears, to have

been brought to a hearing on the merits. The issue of Mr. Rybka’s ability to practice before the Court is

being used to collaterally attack the criminal complaints against Appellee, and do not to go the merits of

the underlying charges herein.

The Tribes have the right to choose who it wants to represent it in this case. The Tribes hired Mr.

Rybka. Two Chief Judges recognized the Tribes’ right to seek counsel of its own choosing, and

recognized it chose someone from the Northwest Intertribal Court System (NICS). Two Chief Judges, in

exercising their discretion, admitted Mr. Rybka into practice with the Colville Tribal Courts. There has

been a ruling by this Court already that such a decision by the Chief Judge did not abuse its discretion.

The Trial Court has committed an error in law by its ruling in the January 13, 2023 Order. We so hold.

Base on the foregoing, now, therefore

It is ORDERED that the Order of the Trial Court dated January, 13, 2023 is REVERSED and this

matter is REMANDED to the Trial Court for actions consistent with this Opinion.

David PRIEST and Gary LESSOR, Appellants,

vs.

COLVILLE CONFEDERATED TRIBES, Appellee.

Case No. AP23-005 and AP23-006, 8 CTCR 31

16 CCAR 12

[Appellant Priest appeared pro se. Appellant Lessor appeared through spokesperson M. Humiston.

Appellee appeared through spokesperson T. Carden.

Trial Court Case No. CR-2022-45091 and CR-2019-42030/CR-2022-45051]

Decided September 18, 2023.

Before Chief Justice Anita Dupris, Justice David C. Bonga, and Justice R. John Sloan Jr.

Dupris, CJ

FACTS

Appellant Lesser was sentenced on twelve (12) various counts under Trial Court case numbers

CR-2019-42030 (42030) and CR-2022-45051 (45051) to a total of 2,345 days in jail with 1,962 days

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suspended on conditions, leaving a total of 1,255 days to be served. In 42030 the Trial Judge granted

day-for-day credit to jail time for Appellant’s time at an in-patient treatment facility, with “[e]arly release

for inpatient treatment (day for day credit and suspend remaining time upon graduation.)” In 45051

Appellant was given credit for 18 days served. The jail sentences in 42030 and 45051 were to run

consecutively.

Appellant Priest pleaded guilty to two (2) counts of drug violations and was sentenced to two (2)

consecutive terms of 360 days in jail, with none suspended. No fines were imposed. In September, 2022,

Appellant Priest was remanded to federal custody to serve a jail term under a federal charge. At that time

Appellant Priest had completed 55 days of his tribal sentence.

On April 25, 2023 the Trial Court denied Appellant Lesser’s motion to correct the time he had

served on both sentences to reflect the time he had already served, and the time he spent in inpatient

treatment. On the same date the Trial Court denied Appellant Priest’s motion to clarify his jail term

sentence to reflect granting credit for the time he had already served.

The Trial Court found that both Appellants’ jail sentences were to start over from the initial

incarceration without credit for any time served away from the tribal jail facility. The Tribal Judge

deemed this policy to be “TLOA time.” The Trial Court stated “TLOA time restarts when there is a break

in custody and the individual returns to [tribal custody] so long as the break in incarceration was not

caused by the [tribal] Correction Facility.” The Trial Court used this reasoning in both Appellant Lesser

and Appellant Priest’s cases. Neither orders of the Trial Court for these Appellants give any authority or

reasoning for the creation of “TLOA time.”

Both Appellants filed timely appeals. Appellant Priest is pro se. Appellant Lesser is represented

by Michael Humiston, Spokesperson. At the Initial Hearing on June 16, 2023 this Court joined the cases

of both Appellants in that the issue was the same.

ISSUE

Does the imposition of “TLOA time” in excess of 360 days deprive defendants of due process

and equal protections of the law?

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STANDARD OF REVIEW

The facts of these cases are not disputed. The question is one of law. We review de novo. CCT v.

Naff, 2 CCAR 50, (1995).

DISCUSSION

Appellant Priest did not file a brief. He is pro se, so this does not impact our rulings herein.

Appellee Colville Tribes, did not file a brief, with no reason given to this Court for why one was not filed.

We will take this into account in our ruling. Appellant Lesser’s brief, albeit timely filed, does not

specifically address the “TLOA time” issue. It addresses an issue we have addressed in past TLOA cases

regarding whether a defendant can be sentenced longer than 360 days in a jail facility that does not

comply with TLOA. In this sense it is non-responsive to the issue.

We are left with whether the Trial Court’s orders denying Appellants credit for time served under

an artifice called “TLOA time” violates due process and equal protection rights of Appellants. Appellee’s

lack of brief means we don’t have any arguments to support the Trial Court’s “TLOA time” reasoning for

denying credit for time served.

We have already addressed whether a denial of credit for time served violates a defendant’s due

process and equal protection rights. Circle v. CCT, 10 CCAR 47 (2011). In Circle the Trial Court denied

credit for time served based on a finding that it was not allowed in domestic violence cases. We found that

Circle was denied the equal protection of the law in that anyone else incarcerated on a charge not related

to domestic violence was granted credit for time served. We instructed the Trial Court in Circle to use the

State guidelines regarding credit for time served as found in R.C.W. 9.94A.505(6). The time to be credited

has to be directly related to the charge for which the defendant is being held.

In this case Appellant Lesser was denied credit for time he spent in in-patient treatment, which

was specifically granted in his Judgment and Sentence in case 42030, as well as credit for 18 days served

in case 45051. Appellant Priest was denied credit for 55 days he had already served in his case. The days

to be credited to both Appellants were directly related to their sentences.

5

There is no need to reinvent the wheel; we have already addressed the issue of credit for time

served. The creation of “TLOA time” to deny credit for time served is not supported by our law. The

Tribes/Appellee has not given us any reason to recognize “TLOA time” as a method to ignore the time the

Appellants have served towards their sentences.

Based on the foregoing, we hold the Trial Court erred as a matter of law in denying Appellants

credit for the time they each served on their sentences, and hold the artifice of “TLOA time” created by

the Trial Court is in violation fo Appellants due process and equal protection rights. We REVERSE and

REMAND to the Trial Court for actions consistent with this Order.

Nathan MOULTON, Appellant,

vs.

COLVILLE TRIBAL FEDERATION CORPORATION, Appellee.

Case No. AP21-011, 8 CTCR 32

16 CCAR 15

[Michael Humiston, appeared for Appellant.

Timothy H. McLaughlin, appeared for Appellee.

Trial Court Case No. AP21-011]

Decided January 22, 2024

Before Chief Justice Anita Dupris, Justice Dennis L. Nelson, and Justice Theresa M. Pouley

Dupris, CJ

This matter came before this Court for an Initial Hearing on January 11, 2022 on an Appeal

timely filed by Appellant on October 28, 2021 against Appellee on issues regarding motions for summary

judgment rulings at the Trial Court level. Appellant is represented by Michael Humiston, Spokesperson;

Appellee is represented by Timothy H. McLaughlin, Spokesperson.

Appellant appeals the Trial Court Order of September 30, 2021, Order Denying Petitioner’s

Motion for Summary Judgment, specifically the rulings that denied his Motion for Summary Judgment,

and that dismissed the case. Based on the reasoning set out below we affirm the Trial Court’s rulings, with

direction to the Trial Court to clarify that the cross-motion of summary judgment of Appellee is granted

and the cross-motion of Appellant is denied.

PROCEDURAL HISTORY

Appellant was hired by Appellee (CTFC) in April, 2015 under a contract to be the Fuel Director

for the Corporation. His contract was extended for three years in 2016. Appellant was a contract

employee, and not subject to CTFC’s general personnel policies. The contract set out specifically how it

could be terminated.

CTFC gave Appellant notice on April 18, 2017 that it intended to terminate it’s employment

contract based on fourteen reasons, and informed Appellant he had an opportunity to be heard on the

matter at a board meeting the following day. Appellant did not attend the meeting and on April 19, 2017

CTFC terminated its contract with Appellee.

In June, 2017 Appellant brought a civil action for wrongful termination in the Trial Court, which

is the basis of this appeal. In March, 2019, the Trial Court denied Appellee’s Motion to Dismiss the case

based on sovereign immunity. Extensive discovery transpired over the following year, culminating in

cross-motions for summary judgment filed by both parties, The Order of September 30, 2021 ensued and

is the basis for this Appeal.

ISSUES

Three issues were identified by the parties:

1.

What are the procedures applicable in addressing a motion for summary judgment?

2.

What is the standard the Court should use for such motions?

3.

Did the Trial Court err in applying those standards?

STANDARD OF REVIEW

Issues of law, are reviewed de novo. Mixed law and fact issues are also reviewed de novo. CCT v.

Naff, 5 CCAR 50 (1995). In this case, determining the procedures used in addressing motions for

summary judgment (MSJ) is an issue of law; the question of whether the facts in the record are sufficient

to support the Trial Court’s rulings on the MSJ’s is a mixed law and fact question. Therefore, all of the

issues will be reviewed de novo.

ISSUES: What is the standard for such motions, and what are the procedures to follow?

We have already set out the standard for MSJ motions in Peone v. CCT, et al., 15 CCAR 19

(2021), in which we stated:

The accepted standard for ruling on motions for summary judgment is whether there is

any genuine issue of material fact that supports going forward with the cause of action.

The moving party has the first burden of proof on this issue, with deference given to the

non-moving party. The burden then shifts to the non-moving party if the moving party

has established sufficient argument to grant the motion. The Court reviews all the

pleadings filed at the time, including briefs and legal memoranda on the issue of genuine

issues of material facts.

As informative as the non-tribal law was in both briefs, we need not look elsewhere when this

jurisdiction’s laws have already answered the question. We hold that the standard and procedures for such

reviews are already established.

ISSUE: Did the Trial Court err in applying those standards?

Appellant asks this Court to find the Trial Court erred in its determination that his MSJ be

dismissed. He asserts there is a genuine issue of material fact. He seems to make a circular argument

when he posits “Upon finding that Moulton had failed to satisfy his burden of proof as to the facts being

undisputed, the court effectively acknowledged that Colville Fuels’ facts were disputed as well.”

Appellant’s Brief at page 5.

First, the Trial Court made an extensive review of hundreds of pages of discovery submitted by

both parties before making its decision to grant Appellee’ Motion to Dismiss. We have also reviewed all

the documents, de novo. Appellant was terminated based on fourteen allegations of breach of contract.

The record sets out each allegation in minute detail. It also sets out, in minute detail, all of the reasons

Appellant disputed these claims.

We are not going into details of each of the claims. They were covered thoroughly by the Trial

Court. Appellant bases his assertion that his MSJ should not have been dismissed because there was a

genuine issue of material fact as to the scope of his employment requirements, and as to what weight or

credibility should be given to a Board member’s testimony in his deposition.

Appellee goes in great detail on the different bases for each allegation of breach of contract. This

information was provided to the Trial Court as well. Appellee argues That Appellant failed to assert his

termination was on grounds that were arbitrary, capricious or illegal. He argued his dismissal was

politically motivated but, Appellee asserts, he did not provide evidence to the Trial Court to substantiate

this claim.

Appellant wants this Court to grant him an opportunity to go forward with his claims based on his

assertions that he was wrongfully terminated and the Trial Court, by entering findings of fact, ignored his

allegations of genuine material facts. The Trial Court did, after reviewing all of the record, find that

Appellant ‘failed to provide...’specific facts’ supporting his claim.” Order Denying Petitioner’s Motion for

Summary Judgment, at page 3. The Trial Court did assess the MSJ’s under the standards and procedures

established in Peone, supra.

Our review of the record supports a finding that there is no substantial evidence offered by

Appellant to support his assertion of wrongful termination. We held in Peone, supra, that “[a]ssertions

alone are insufficient to meet his burden of proof.” This is true of Appellant’s case herein, too.

Finally, perhaps some of the confusion in the Trial Court’s order is semantical. When the Trial

Court entered the order on cross-motions for summary judgment, it acknowledged the correct standard for

granting Appellee’s MSJ, and for denying Appellant’s MSJ,. It just didn’t specifically say Appellee’s MSJ

was granted before dismissing the case.

We hold the Trial Court applied the correct standards for reviewing the motions for summary

judgment, and the record supports its findings and affirm its decision. There is no genuine material issue

of fact, as a matter of law regarding Appellant’s termination from employment. We further hold the matter

shall be remanded to allow the Trial Court to amend its Order Denying Petitioner’s Motion for Summary

Judgment to include language regarding Appellee’s Motion for Summary Judgment.

It is so ORDERED.

Sharon MOSES, Appellant

vs

Frankie GEORGE and Jose RIVAS, Appellees

Case No. AP24-001, 8 CTCR 33

16 CCAR 18

Trial Court Case No.CV-OC-2024-47050

Decided June 3, 2024

Before Chief Justice Anita Dupris, Justice Hunter Abell, and Justice Cynthia Jordan

Dupris, CJ

SUMMARY

This matter came before the Court of Appeals on an Appeal filed on March 22, 2024 by

Sharon Moses, Appellant, against Frankie George and Joseph Rivas, Appellees. Appellant,

appearing pro se, initially filed an Interlocutory Appeal; upon review we found that the Appeal is

of a final order, and designated it an appeal of a final judgment.

The grounds for Appeal are under COACR 4-2 (g, f, and h), error of law, that the decision is

contrary to the law and evidence, and that substantial justice has not been done. The Trial Court, in its

order of March 14, 2024, entitled "UCCJEA Order RE: Jurisdiction (Dismissal Order) found cause to

dismiss Appellant's Petition for Custody based on the UCCJEA, a federal law that is applied in State

Courts, and held jurisdiction under the UCCJEA rests with the - Yakama Tribal Court.

At the Initial Hearing on May 17, 2024 we found, as a matter of Colville Tribal law, the

UCCJEA is not applicable to cases before the Colville Tribal Court, and, therefore, the Trial

Court committed an error of law in so applying it, and we reversed and remanded the case to the

Trial Court for conformance with our laws. Our decision is based on the reasoning set out below.

ISSUE

Does the Colville Tribal Court have UCCJEA jurisdiction over the case herein as a matter of law

when the UCCJEA does not apply on the Colville Reservation?

STANDARD OF REVIEW

The issue before the Court is a legal one. We apply the de novo standard of review. Naff v. CCT,

2 CCAR 50 (1995).

DISCUSSION

Procedural Facts

On August 29, 2023 Appellant filed a Custody Petition and Temporary Orders request in

the Colville Tribal Court (CCT Court) alleging her three minor children were being withheld

from her and that their domicile is with her on the Colville Reservation. All the minors and

Appellant are Colville tribal members.

The CCT Court set a Show Cause on Appellant's requests for September 8, 2023.

Service was attempted on Rivas, the father of two of the minor children, of the August

29, 2023 petition and temporary orders motion. Appellant stated it was returned as being refused

on October 7, 2023.

Appellee George filed for temporary guardianship along with a petition for guardianship

in the Yakama Indian Nation Court (YIN Court) on September 18, 2023. The YIN Court granted

her ex parte orders of temporary guardianship.

The YIN Court also found it has exclusive jurisdiction to hear the matter. No notice was

given to Appellant on the temporary order of guardianship ex parte. The document alleges no

service as "unknown." For Appellee Rivas , Appellee George stated in the document: "he is

aware."

CCT Court set a Show Cause hearing on Appellant's August 29, 2023 requests, at which time,

the CCT judge directed that all parties, including the children were to be present.

The next CCT order of October 19, 2023 set the matter for a custody trial on January 9, 2024.

All parties failed to appear. An Order of January 31, 2024 states the Motion to Dismiss was granted, and

the matter was dismissed. It does not state who made the Motion to Dismiss

In November, 2023 Appellant contacted the YIN Court and was told about the temporary orders,

of which she had no notice. She was served certified notice on December 21, 2023 that the hearing was

set for February 13, 2024 in the YIN Court.

Both Appellant and Appellee George appeared for the hearing in the YIN Court on

February 13, 2024; Appellee Rivas did not.

The YIN Court found Appellee George established her case by clear, cogent and convincing

evidence that it would be in the best interests of the children for her to have guardianship; the judge

found further that Appellant's evidence was not credible, i.e. that she was now stable enough to take care

of her children and was working on what she needed to do.

Appellant filed a Petition for Custody in CCT Court on February 26, 2024 alleging, inter

alia, the children are enrolled in Colville Tribes; she is a member of the Colville Tribes; the

children were withheld from her for over a year; the father has an active Colville Tribal domestic

violence warrant, and is being investigated for sexual abuse of her niece. She alleges he has

contact with her minor children.

She further alleges her children are domiciled with her, but have not been returned to her. Finally,

she alleges the George home has seven children, including three boys, and all the children share

the same room (We assume she means bedroom).

On February 26, 2024 the CCT Judge denied Appellant's motions for temporary orders and set a

"judicial conference with the court of the Yakama Indian Nation, for hearing on the issue of jurisdiction

between the Colville Tribal Court and the Yakama Tribal Court." Upon questioning at the Initial Hearing

on May 17, 2024, both parties stated they were not allowed to be present at the phone call hearing

between the Colville and Yakama judges on the issue of jurisdiction.

On March 12, 2024 the Colville Judge entered an Order: UCCJEA ORDER RE:

JURISDICTION (DISMISSAL ORDER). [UCCJEA Order].

The UCCJEA Order finds that the matter was "voluntarily dismissed" from the CCT

Court, attended by both parties in the YIN Court and litigated there; that the YIN Court has

jurisdiction; and that the CCT declines jurisdiction and dismissed the CCT case. It is from this

Order Appellant filed a timely Appeal on March 22, 2024.

In her Appeal Notice Appellant states she did not understand it was a jurisdictional issue, and that

she disagrees with the CCT Court ruling in the UCCJEA Order regarding YIN jurisdiction. She has

raised an important jurisdictional issue before this Court. UCCJEA does not apply in cases before the

Colville Tribal Courts

In Tupling v. Kruse, 13 CCAR 41 (2017), we specifically held that the UCCJEA was not adopted

legislatively by CCT, and that this Court does not legislate, so it was not applicable to cases before our

Courts. Tupling is the controlling law on UCCJEA.'

The only other case in which the UCCJEA was mentioned in our Court was in In Re S,L., Cd'A

Tribe. v. S.L.,R.L., CCT, AP13-019, 11 CCAR 62 (2014), in which the Trial Court held the UCCJEA

applied, but the issue brought before us was not the UCCJEA but an Indian Child Welfare issue. This

case is not relevant herein.

In Tupling the father, Tupling, was an Indian member of a Canadian tribe; the mother was non-Indian,

and they were not married. They resided on the Colville Reservation for a period of time during which

time Kruse filed for and received a temporary restraining order (TRO) in Okanogan Court against

Tupling alleging domestic violence. September 10, 2013, the day after receiving the TRO she moved to

the west side of the State with her minor child.

Several petitions and requests for temporary orders ensued in Colville Tribal Court,

Okanogan Superior Court, Island County Court and Snohomish Superior Court. Kruse filed in

Okanogan and Snohomish; Tupling filed in the CCT Court, Okanogan, Island, and Snohomish

Courts. Kruse filed for custody in Snohomish Superior Court on September 18, 2013.

Tupling filed a Petition for Custody on September 10, 2013 in Tribal Court but did not inform the

Tribal Court of the Okanogan Court's TRO; he did not serve Kruse the Petition until April 21, 2014. The

Tribal Court, even though there was no proof of service on Kruse, held at least two hearings on Tupling's

request for ex parte temporary orders, and granted him temporary custody, and issued a pick-up warrant

for the minor.

Tupling filed registrations of a foreign order in Okanogan County Court, Island County

Court (where Kruse first lived when she moved to the west side of the State), and Snohomish

Superior Court, where Kruse was living with her minor child, basing his requests on the

UCCJEA, R.C.W. Chapter 26.27.

In May, 2014, the Snohomish Superior Court found it had concurrent jurisdiction with the

Colville Tribal Court and reserved ruling on primary jurisdiction until it held a UCCJEA conference call

with the Colville Tribal Judge. The jurisdictional issue raised was which Court, Okanogan (first Court),

CCT Court, Island County Court, or Snohomish Superior Court, had jurisdiction over the custody matter.

The judges of the CCT Court and the Snohomish Court conferred under the auspices of the UCCJEA

and concluded that the Snohomish Superior Court was the more convenient forum; the CCT Court

declined jurisdiction and dismissed the case.

We found that Washington's UCCJEA recognized tribes as "states" for the purpose of

determining jurisdiction over mutual custody cases. The Washington UCCJEA is modeled on the federal

UCCJEA statute which directs the States to consider tribes as states for the purpose of determining

jurisdiction. It does not require tribes to adopt it.

We held that the UCCJEA does not apply in our Courts in that the Tribes has not adopted the

requisite statute. We further held, that in this case it was harmless error in that CCT§1-1-144, Means to

Carry Jurisdiction Into Effect. gave the Trial Court the ability to fashion a suitable procedure in the

absence of a statute when the interests of justice are served. We affirmed on this ground instead of the

UCCJEA.

Justice Bass wrote a strong dissent, basically disagreeing with the majority's finding that it was

harmless error to accept the findings of the Trial Court under UCCJEA. He set out the extensive history

6

of the UCCJEA. He posits that if the UCCJEA does not apply in our jurisdiction, we should have held

the judgment of the Trial Court should have been void ab initio, that is from the beginning. He makes a

compelling argument that in establishing a harmless error standard we ignore the plain law that Court's

do not legislate, the Colville Business Council, our legislative/executive branch does.

In hindsight we are inclined to agree with Justice Bass's basic reasoning on the

nonapplicability of UCCJEA. We should have remanded with instructions to decide under our

laws. This is a clearer and truer statement of what the law should be in cases such as this.

In this case, the matter was first filed in the Colville Tribal Court. The children are CCT

members, and in S,L., Cd'A Tribe. v. S.L.,R.L., CCT , 11 CCAR 62 (2014), we ruled that the

domicile of a child follows the unmarried mother.

In Tupling, supra, we referred to the case of Carson v. Barham, 7 CCAR 17 (2003). In

Carson, with no reference to the UCCJEA, the Trial Court conferred with a Spokane Judge on

which Court should exercise jurisdiction, and ruled the Spokane Court should under the"first to

file" rule. Carson does not apply to the facts in this case.

We do not know the process of the Yakama Tribal Court, whether they have adopted the

UCCJEA, what was considered when it found it had exclusive jurisdiction over the Colville

member minors; it's Order establishing guardianship does not reflect if it considered that the case

was first filed in the Colville Tribal Court (which is usually an issue addressed in a UCCJEA

hearing).

We do not make any findings that would direct the Yakama Tribal Court on how to

handle its case in the future. We do find that our Colville Tribal Court erred in its decision to

apply the UCCJEA to its decision of a custody action first filed in our Courts and not considering

the laws of our Tribes. We have several cases addressing custodial issues and jurisdictional

issues. We direct the Trial Court to consider our laws in making its decision, and not a federal

law not enacted or applicable in our jurisdiction.

Conclusion

In conclusion, we hold the Trial Court committed an error of law by adopting

the UCCJEA without the authority of a statute of our laws, and REVERSE and

REMAND to the Trial Court for actions that comports with the laws of our Tribes.

It is so ORDERED, and this matter is REVERSED and REMANDED to the

Trial Court for actions consistent with this Order

Done June 3, 2024

Shania LAWRENCE, Appellant

vs

Edward STENSGAR, Appellee

Case No. AP24-008, 8 CTCR 34

16 CCAR 24

Trial Court Case No. CV-DR-2019-42223

Trial Court Case No. CV-CU-2018-41181

Decided October 28, 2024

Before Chief Justice Anita Dupris, Justice Jane Smith, and Justice Theresa Pouley

Dupris, CJ

This matter came before the Court for an Initial Hearing on October 18, 2024. Appellant

Lawrence appeared in person and through a spokesperson, Michael Humiston, who appeared

by telephone. Appellee Stensgar appeared in person and through his spokesperson, Andrea

George. Appellant based her Appeal on three bases: 1) that the Trial Court erred in failing in its

amended Final Parenting Plan and Order to include a requirement for Appellee to attend a

domestic violence treatment course; 2) that the Trial Court erred in finding that a substantial

change of circumstances occurred that resulted in an amended Final Parenting Plan; and 3) that

the Trial Court erred in denying a protection order based on the allegations of harassment and

allegations of physical abuse of the parties' minor child.

The parties were informed at the Initial Hearing that one of three things could happen.

First, the Court could find that no appealable issue was stated and the matter would be

dismissed; or second, that we could find there is an appealable issue, and set the matter for

briefing. Finally, we could find, as a matter of law, that an obvious error has been made, and

we would remand to the Trial Court.

In this matter, we found that there are competing Orders from our Trial Court, i.e. the

amended final Parenting Plan and accompanying Order dated August 19, 2024, and the

Protection Order entered by the Lincoln County Superior Court entered September 10, 2024.

The Trial Court orders allow visitation between Appellee and the parties' minor child. Lincoln

County's Protection Order prohibits any visitation.

The third issue on Appeal is of a Protection Order request by Appellant in the Trial

Court. Appellant asserts that it was denied. The ex parte request for the Protection Order was

denied, and the matter was set of a hearing for September 3, 2024. According to the parties,

Appellant requested the hearing be continued to September 10, 2024, at which time the

Lincoln County Court ruled on the Protection Order before it regarding the parties.

According to Appellee's Declaration asking for dismissal and sanctions in this matter,

as well as the parties' statements in the Initial Hearing, the tribal Trial Court judge stayed any

discussion of the competing Orders pending this Appeal. The parties stated the judge was

waiting to have a UCCJEA conference call with the Lincoln County judge. As we ruled in

Moses v. George/Rivas, AP24-001 (June 3, 2024), the UCCJEA does not apply in our

jurisdiction. This would not preclude the judge from talking to the Lincoln County judge

regarding the competing orders; it just precludes any reliance on the UCCJEA and its guiding

policies, which, as we stated in Moses, supra, are statutory and have not been adopted by our

Legislature, the Colville Business Council.

We find that an Appeal on the competing Orders is not ripe for our review. The Trial

Court needs to rule on the issue of which Order, the Trial Court's Order allowing visitation

between Appellee and his minor child, or the Lincoln County Court's Order prohibiting contact,

prevails for these parties. For this reason we remand to the Trial Court to address this issue.

Lastly, Appellee's Motion for Dismissal and Sanctions is denied. First, Appellant made

an obvious scrivener's error in stating March, 2024 instead of September, 2024 in his statement

of certificate of service on his Notice of Appeal. Appellee references Court Rule 3-36 in terms

of timely service on her/her spokesperson. This rule states Appellee should have been served

the Notice of Appeal at or before the filing thereof. Even if we were to accept this as true, we

see no harm on the timeliness of serving the Notice of Appeal on Appellee. All parties and

their spokespersons were present at the Initial Hearing and no one alleged the inability to

adequately prepare for the hearing.

Appellee also asks for sanctions, stating as a basis that all the Court times he is

required to attend are costly. We reminded him that in the prior Appeal he filed in October,

2023, he had filed thirteen motions that had to be brought before the Court. Both of the parties

have asked the Trial Court several times for a review of the case, which necessitated Court

time. Appellee has not met his burden to support sanctions in this case. Based on the

foregoing, now therefore

It is ORDERED that:

1. This matter is DISMISSED as not ripe for review;

2. The case is REMANDED to the Trial Court to make a decision on which of the competing

Orders between the Trial Court and Lincoln County Court prevails regarding visitation between Appellee

and his minor child;

3. Appellee's Motion to Dismiss is DENIED for the reasons he stated; and

4. Appellee's Motion for Sanctions is DENIED.

DONE October 28, 2024

Andrea D. GEORGE, Appellant

vs

Edward P. JURSEK, et al Appellee

Case No. AP24-002, 8 CTCR 35

16 CCAR 27

Trial Court CV-OC-2021-44022

Decided July 15, 2024

Before Justice Mark Pouley, Justice Anita Dupris, and Justice David Bonga

Pouley, CJ

FACTS

Appellant Andrea George is before this Court alleging that multiple tribal Appellees caused her harm

over a long period of years covering numerous interactions. As discussed below, Appellant brought the

same or similar claims in Colville Tribal Court previously. The Court will not recount the

allegations in this matter as Appellant's 102-page amended complaint includes 394 paragraphs

of allegations, names 13 respondents (all past and present tribal employees), and identifies 12

causes of action. In addition to being voluminous, the allegations are at times confusing. The

fact the pleadings cover so many incidents over so much time involving so many parties, in part,

is the basis of the Trial Court's decision to dismiss the complaint and this Court's decision to

AFFIRM that dismissal.

DECISION

As the issues before the Court are matters of law, the standard of review is de novo. Naff

v CCT, 5 CCAR 50 (1995). Appellant complains that the December 23, 2023, Order of

Dismissal, appealed herein, lacks findings and conclusions. While true, this is not a basis to

reverse or remand the decision. When the Trial Court dismisses an action as a matter of law it

ordinarily does not enter "findings of fact." If the matter is dismissed as a matter of law, this

Court reviews the decision de novo. If this Court agrees with the lower court's legal decision, on

any legal basis, it is not required to decide if the Trial Court's legal conclusion was in error.

Here, the Court finds, on the basis explained below, that the dismissal of the case was correct as

a matter of law.

Some of Appellants' claims are based on alleged misconduct occurring in the Colville

Tribal Court, or court filings. Appellant takes issue with how matters were handled, including

the qualifications of a pro tern judge, communications with court staff, sitting judges, and others.

It is impossible to understand how any of Appellant's complaints against the individual judges,

attorneys, or court personnel, assuming the alleged facts are true, give rise to a cause of action

for monetary damages. It is unclear if Appellant's issues would be a basis for appeal, ethics

complaint, or grievance, but there is no legal basis supporting a claim for monetary damages.

The DISMISSAL of all claims against the trial court and its personnel is proper as a matter of

law and is therefore AFFIRMED.

Appellant was previously a member of the Colville Business Council (CBC) and was removed

from that position following an ethics complaint. Appellant brought an action in the Colville Tribal Court

in CV-OC-2019-42026 alleging she was wrongfully removed. Her complaint was dismissed and this

Court AFFIRMED the dismissal in AP21-016. In pertinent part, we held that "separation of powers

prevents our review of the actions of the CBC in their capacity as CBC members." The holding of the

Court is unchanged. Allegations of any wrongful conduct of the CBC, attorneys representing and giving

advice to the CBC and other parties that may have been involved with Appellant's removal and

subsequent bar to running for office may not and will not be reviewed by the Colville Tribal Courts. Even

if Appellant's new filing alleges new or additional claims, the legal bar to bringing the claims remains the

same. The decision of the Trial Court on this matter is AFFIRMED.

Appellant raises two causes of action, "Breach of Contract" and "Breach of the Implied Duty of

Good Faith and Fair Dealing" based on the law of contracts. Appellant does not claim to be a party to the

contracts allegedly breached by the Appellees, nor does her description of the contracts imply this may be

true. Lack of privy bars a claim for breach of contract as a matter of law and the Restatement of the Law

of Contracts, 2d, duly notes that "To state a claim for breach of the implied covenant of good faith and

fair dealing, a plaintiff must generally plead: (1) the existence of a contractual relationship between the

plaintiff and defendant, (2) plaintiff's performance (or excuse from performance) of its obligations under

the contract; (3) that the defendant unfairly prevented the plaintiff from receiving the benefits it was

entitled to under the contract; and (4) injury to the plaintiff as a result of defendant's conduct." Even if

contracts were breached, Appellant fails to identify any legal claim for monetary damages she suffered as

a non-party to the contracts. Additionally, as discussed below, Appellant does not demonstrate how, if

such a claim existed, it would survive the Respondents' sovereign immunity to any action for monetary

damages or the statute of limitations.

Appellant also asserts claims for "outrage", "malicious prosecution", "defamation", "negligent/

intentional misrepresentation and/or omission", "negligent/intentional infliction of emotional distress",

"violation of employment records", and "harassment." The complaint seeks "monetary damages" for her

alleged injury. Appellant brought similar claims in 2017 in cause number CV-OC-2017-40036. Some of

the allegations in this pleading appear to repeat allegations brought in the previous litigation. The Trial

Court dismissed the 2017 action and this Court affirmed the dismissal in AP21-015. We hold here, as we

did in the prior decision, that Appellant's claims are standard tort claims barred by sovereign immunity.

Further, to the extent the claims overlap allegations already brought and dismissed with prejudice by this

Court, they are barred from being reasserted. Additionally, to the extent any claims arose more than three

years before filing of this action on January 28, 2021, they are barred by CTC §2-2-3 statute of

limitations. We previously affirmed the dismissal of the same or similar claims brought by Appellant and

the law has not changed. Dismissal remains appropriate and the Trial Court decision is therefore

AFFIRMED.

It is well established that the Colville Confederated Tribes, as a sovereign, may not be sued

unless it waives its sovereign immunity. In addition, the Tribes may limit any such waiver to specific

claims and remedies. CTEC v. Orr, 5 CCAR 1, at 4 (1998). The Colville Civil Rights Act provides a

limited waiver of sovereign immunity, and this Court has reviewed permissible claims and remedies

allowed by the waiver numerous times. We do so again in this case.

In her attempt to justify a claim for monetary damages, Appellant's amended complaint alleges

violations of her "civil rights" under CTC§1-5. To the extent Appellant's claims arise from any of the

Appellees' actions relating to her removal from the CBC, the Court already held separation of powers

bars our consideration of the claim. To the extent Appellant's claims arise from improper court action, the

Court already held there is no cause of action for challenges to court authority or decisions. To the extent

Appellant's claims allege violations of civil rights described in §1-5-2, monetary damages may only be

considered if the Court determines that injunctive or declaratory relief will not sufficiently address the

damages suffered. CTC §1-5-8. Appellant did not seek injunctive or declaratory relief or allege such

relief is insufficient to address her claims. There is extensive precedent in this Court examining the

limitations of monetary relief available under CTC§1-5-2. It is well-established that Petitioners may not

"bootstrap" otherwise barred tort claims by making bare assertions those claims rise to the level of "civil

rights violations". The Court has rejected these efforts in the past, even by this same litigant, and will not

change that precedent in this case. Dismissal on the grounds the Appellees are immune from suit seeking

monetary damages is AFFIRMED.

Appellant attempted to avoid the bar of sovereign immunity by captioning her complaint against

the Appellees "in [their] individual and official capacity." This Court will not discuss whether suits

brought against tribal employees in their individual capacity avoids tribal sovereign immunity. Instead,

the Court will examine Appellant's failure to properly plead the case that any of the Appellees acted in

their individual capacity. It was clear to the Trial Court that Appellant's complaint lacked sufficient clarity

and specificity to support claims against the various Appellees in their individual capacities. By order

dated October 18, 2021, Appellant was given the opportunity and directed to amend the complaint to

specify "which acts of any Respondents that are alleged to have been done in their individual capacity,

rather than in their official capacity. If there is no specific allegation of acting in their individual capacity,

the Court will deem the allegation to have been done in their official capacity." Appellant's second

amended complaint filed March 9, 2022, fails to address this deficiency' so this Court considers all

alleged conduct to be performed in the Appellees' official capacity and claims for monetary damages are

barred by sovereign immunity.

As the Petitioner, Appellant is solely responsible for the pleadings filed and must present facts

and legal claims supporting the requested relief. In drafting allegations of a complaint to avoid dismissal

for failure to state a claim, it is not enough for a pleading party to merely mention a possible argument in

the most skeletal way, leaving the court to do counsel's work, creating the bare structure of an argument,

and putting flesh on its bones; rather, the petitioner has an affirmative responsibility to put her best foot

forward and present a legal theory that supports her claim. See, Kell v. American Capital, 278 F. Supp. 2d

156 (2003). The Court agrees with the Appellees' characterization of the pleadings, "The complaint reads

like a disconnected narrative of various grievances, anecdotes, and episodes with no central or shared

common nucleus of fact or law, other than Petitioner's presence." While pleading rules must not create

barriers to litigants seeking and obtaining remedies for wrongs they have suffered, all pleadings must be

sufficiently clear to notify the respondents of the claims raised, the applicable law, and the defenses they

may assert. A scattershot or "shotgun" style of pleading fails to meet this requirement. The amended

complaint is as incomprehensible as the complaint challenged in October 2021 that the court directed

Appellant to amend. The original complaint and the amended complaint prove that "more" is not

necessarily better. The Trial Court's order of October 18, 2021 instructed Appellant how she might save

her pleadings from dismissal. She failed to meet the Trial Court's directions. Both complaints fail to

properly state a claim for which any relief may be granted and this Court refuses to redraft the pleadings to determine if any

claims should survive dismissal.

Appellant received substantial due process to air her grievances inside and outside the tribal justice system.' The fact she is

dissatisfied with the resolution of the grievances is not a legal justification for continuing to bring those claims before this Court. In the

Colville Courts Appellant previously filed two actions that were considered and dismissed by the Trial Court and the Court of Appeals.

The claims before this Court in this action overlap those prior claims, at least in part, both factually and legally. As this Court noted

before Desautel v. Dupris, et al, 11 CCAR 6, 11 (2011) "the judicial system's integrity and ability to ensure just results is negated when

a litigant can continually re-file a matter in the hopes of a different result, or in hopes of wearing the other side down."

Dismissal of this case by the trial court as a matter of law was proper and is AFFIRMED. It is so ORDERED.

DATED July 15, 2024

______________________________

' Other than adding party names to some of the paragraphs, the amended complaint offers no specific allegations that establish

any Respondent acted in their individual capacity.

Reginald GEORGE, Jr., and Andrea D. GEORGE, et al Appellant

vs

Darnell SAM, et al Appellee

Case No. AP24-003, 8 CTCR 36

16 CCAR 32

Trial Court CV-OC-2022-45038

Decided August 23, 2024

Before Chief Justice Anita Dupris, Justice Mark Pouley, and Justice Donald Colistro

Dupris, CJ

SUMMARY

This matter came before the Court of Appeals upon an Notice of Appeal filed on June 18, 2024 by

Reginald George, Appellant (Appellant) against several named Appellees set out above. Appellant

appeals a final order of the Trial Court dated May 21, 2024 in which the Trial Court dismissed the case

based on several grounds. The Trial Court held that two of the respondents were dismissed as parties

because their actions were as witnesses and did not form a basis for a claim under Appellant's complaint.

The Trial Court also dismissed the case against all of the tribal employee-respondents on the grounds of

sovereign immunity, and dismissed the case against the Judge and Court Clerk on the grounds of

sovereign immunity and "absolute judicial immunity." The Trial Court ruled there was no violation of the

Tribes' Civil Rights Act, CTC , Chapter 5 as there were no materially disputed facts and that Appellant

failed to state a claim upon which relief could be granted.

The Initial Hearing was held on August 16, 2024. Appellant Reginald George appeared in person

and represented by his Spokesperson, Andrea George. The Appellees, except for Darnell Sam and Jodi

Sam, were represented by their Spokesperson, Christopher Kerley. Darnell Sam and Jodi Sam did not

appear.

Based on the reasoning below we affirm the dismissal of all of the respondents in their individual

and official capacities except the respondent Colville Tribes. We find cause to remand the matter to the

Trial Court to address the substantive issue raised by Appellant regarding applying the Washington State

statute, RCW 7.94', the Extreme Risk Protection Order (ERPO).

DISCUSSION

At the Trial Court level both parties argued in depth why the ERPO should and should not have

been issued. Appellant argued, inter alia, it violated his tribal civil rights to due process and equal

protection, and that the Court adopted and enforced a statutory law of Washington State, one that does

not have a counterpart in tribal law. Appellees argued that the Court has interpreted and enforced statutory

protection orders in other types of cases, and that CTC Section 2-2-102 allows looking to state law in the

absence of tribal law.

The issue of whether the Trial Court should adopt a statutory law of the State of Washington

under our applicable law statute, CTC 2-2-102, in the absence of a tribal statute for the ERPO is an

important one to address. A question arises in whether CTC 2-2-102 can be used to incorporate a

state statute that has a very distinct legislative history for the State of Washington without our

legislative body's own development of its policy on the issue of what types of protection orders the

Tribes should allow in similar circumstances.

We acknowledge that the underlying cause of action — or actions — herein that challenge

the issuance of the ERPO are a collateral attack on the cause of action that initiated and adopted the

State's ERPO procedures. That is, there may be a question of whether the challenge should have

taken place and appealed under the original cause of action in which the ERPO was issued.

The Trial Court made a correct assessment regarding dismissing the individual Appellees in their

individual and official capacity. The Trial Court did not answer an important question, however, that may

or may not have affected the due process and equal protection rights of Appellant by the issuance of the

ERPO. The applicability of the State's ERPO statute in Tribal Court is one of first impression.

__________________________

RCW 7-94 et seq. was superceded in 2021, and the relevant section regarding Extreme Risk Order of Protection was

incorporated in RCW 7.105.330.

For these reasons we AFFIRM the Trial Court's rulings dismissing all of the Appellants

except the Tribes, and we REMAND to the Trial Court to address the issuance of the ERPO.

It is so ORDERED.

Done August 23, 2024.

Edward Stensgar, Appellant

v

Shania Lawrence, Apellee

Case No. AP23-010, 8 CTCR 34

16 CCAR 34

Trial Court CV-CU-2018-41181

Trial Court CV-DR-2019-42223

Decided November 6, 2023

Before Chief Justice Anita Dupris, Justice Jane Smith, and Justice Theresa Pouley

Dupris, CJ

This matter came before the Court for an Initial Hearing on October 20, 2023. Appellant, Edward

Stensgar, appeared in person and pro se. Appellee Shania Lawrence, appeared in person and with her

Spokesperson, Victoria Minto. The Court explained the purpose of an Initial Hearing to the parties,

and further explained to Appellant why a number of his appeal requests were not matters to be heard

by this Court.

Specifically, Appellant was told that the following requests in his Appeal Notice were not

properly before the Court of Appeals: 1) to appoint a new judge; 2) to allow the minor in question to

"go to Reardon"; 3) to make a new parenting plan to accommodate both parents' residency; 4) to

appoint a guardian ad litem; and 5) to add Appellant's wife as a co-parent for school purposes. All

these requests are issues to be addressed first by the Trial Court.

The Order appealed was signed by Judge Kelley on August 29, 2023 in which the Judge

denied Appellant's Motion to Modify the Parenting Plan. The final Parenting Plan was entered by the

Court in February, 2020. Appellee's Spokesperson stated Appellant has filed 13 motions to modify

the final parenting plan of February, 2020. The Order sets out some of the several motions, noting

that several related to visitation issues; one was not addressed because Appellant's spokesperson was

no longer a member of the Tribal Court Bar.

Procedurally this case started with a Petition for Custody filed by Appellant under Case

Number CV-CU-2018-41181. The Judge entered an Order on March 13, 2019 which did not dismiss

the Custody case; it stated the parties were working together on an agreement regarding custody, and

any further action was to be brought before the Court by a motion.

On September 30, 2019 the Trial Court entered a Domestic Violence Protection Order for

Appellee and against Appellant. On February 20, 2020, after several motions and hearings on the

motions, the Trial Court entered a Final Parenting Plan under the Domestic Violence case, CV-

DR-2019-4223. More motions ensued.

The Trial Court's Order of June 1, 2021 addressed Appellant's motion to modify the

February 20, 2020 Final Parenting Plan' order. The Trial Court, in this Order, recognized that the

issues in both CV-DR-2019-42223 and CV-CU-2018-41181 were now the same, and issued an

order combining the cases. The Court found further in its June 21, 2021 Order that the

Respondent/Appellant herein did not provide evidence that a substantial change of circumstances

occurred pursuant to CTC §5-1-26, and denied the request to modify the original parenting plan.

The Court held the same in its August 29, 2023 Order, that is, no substantial change in

circumstances to merit a modification of the Permanent Parenting Plan of February, 2020.

Appellant must show more than mere allegations of what he considers a substantial change of

circumstances to support a modification.2

A review of the record and Order appealed in this case supports the Trial Court's

findings. Our review is not original; we look at the Trial Court's ruling under the standard of

whether it is reasonable within the law. We do not substitute our opinion for the Trial Court's.

Based on the above we find there is no applicable issue, and AFFIRM and REMAND for

actions consistent with this Opinion.

Done November 6, 2023.

_______________________________

2. Appellee is concerned of how often Appellant files Motions to bring the matter back into the Trial Court

so often. That is an

issue that needs to be addressed first by the Trial Court in its responsibility to administer its calendar and cases.

1

. It is noted that a custody order was never issued under the original case, CV-CU-2018-41181; rather the case was joined with

the domestic violence case, in which one of the many judges who heard parts of the case found cause to enter a Permanent

Parenting Plan which addresses the custody and visitation issues. It is this Plan that forms the basis of this Appeal.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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