# Oscar MELLON, Appellant,

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## Record

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

## Text

Oscar MELLON, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
AP02-015, 4 CTCR 17
8 CCAR 01
[Michael Larsen and Neil Porter, Colville Tribal Public Defender’s Office, for Appellant.
David Ward, Office of Prosecuting Attorney, for Appellee.
Trial Court Case Number CR-2001-24221]

Argued April 18, 2003. Decided January 12, 2005.
Before Chief Justice Anita Dupris, Justice Edythe Chenois and Justice Theresa Pouley
Dupris, CJ
PROCEDURAL HISTORY
On September 14, 2001 the Appellant was charged by an amended complaint with the
criminal charges of: Count I, Fraudulent Credit Card Use, CTC § 3-1-49; Count II,
Embezzlement, CTC § 3-1-43; Count III, Misuse of Public Funds, CTC § 3-1-131; and Count IV,
Theft, CTC § 3-1-55. All four charges were based on the same eight allegations of the
Appellant’s use of a VISA credit card on the Tribes’ credit line, issued to him while he was a
member of the Colville Tribal Business Council (CBC).
The Trial Court dismissed the charge of Theft in a pre-trial order dated February 11,
2002, upon a motion of the Appellant. The Trial Court denied the Appellant’s Motions to
Dismiss the other charges in the same order, and further held it had jurisdiction over all of the
alleged incidents, including four in which the Appellant used the credit card off the Colville
Reservation (Reservation).
The Appellant was found guilty of Fraudulent Credit Card Use and Misuse of Public
Funds, and not guilty of Embezzlement by jury trial on June 20-21, 2002. He was sentenced on
the two charges, i.e. Fraudulent Credit Card Use and Misuse of Public Funds on August 1, 2002.
He filed his Notice of Appeal on August 2, 2002, initially raising eight (8) separate issues
for appeal. In his Opening Brief filed on February 28, 2003 the Appellant withdrew three of the
issues: (1) whether the Trial Court erred for denying to dismiss the charges of Fraudulent Use of
Credit Card and Misuse of Public Funds for insufficiency of complaint; (2) whether the Trial
Court erred in the jury instructions used; and (3) whether sentencing the Appellant consecutively
for multiple charges arising from the same factual conduct constituted double jeopardy.
The issues remaining for oral arguments, held on April 18, 2003, were: (1) whether the

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Trial Court erred for failing to dismiss the charges based on incidents occurring off the Colville
Reservation for lack of jurisdiction; (2) whether the Appellant’s due process rights were violated
based on the allegation he was not given adequate notice that he could be prosecuted for crimes
relating to his credit card use; (3) whether the Appellant was wrongfully charged with general
and specific crimes based on the same factual conduct; (4) whether the Trial Court erred in
sentencing the Appellant to, inter alia, two years of probation; and (5) whether the Trial Court
erred in granting the Appellee’s Motion to Strike the Deferred Prosecution initially offered by the
Prosecution, then withdrawn.
Based on the reasoning below we affirm the Trial Court.
DISCUSSION
In his Opening Brief, the Appellant quotes one of our most respected ancestors,
Christine “Mourning Dove” Quintasket, stating “Honesty and personal integrity is [sic] an
important attribute of American Indian life and is a documented part of the Tribes’ historical and
cultural tradition.” See Appellant’s Opening Brief, page 17.

He goes on to say, “Tribal

members have a right to expect that when their public officials speak, that their pronouncements
will be more than mere words, and that those words will be honored.” Id. These principles do
speak to our customs and traditions, our organic laws, and should guide this Court in its decision.
STATEMENT OF FACTS
Appellant Oscar Mellon was elected to the Colville Tribal Council in 1999 as a
representative from the Keller District.1 He ran again when his term was up in 2001 but was not
re-elected. In July, 1999 he was sworn in, taking an oath of office. After he was sworn in, he
was issued a VISA credit card on a tribal account with Coulee Dam Federal Credit Union. The
Authorized User Request Form the Appellant signed authorized him to use the credit card for
business and travel-related expenses directly tied to his position as a Council member. He agreed
to be responsible for the charges on the credit card; the Colville Confederated Tribes (Tribes)
was designed as the “co-owner or Trustee,” and thus was also designated to be responsible for
the charges to the card.
On about July 11, 2001 the Appellant reported that he had lost the VISA card in question
around July 8, 2001. The Appellant left the office of Keller Councilman on July 15, 2001. The
1

The Colville Tribal Council is comprised of fourteen members elected from four (4) different districts designated in the Colville Tribal
Constitution: Nespelem, Omak and Inchelium districts have four representatives each; the Keller district has two representatives.

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Tribes received information that the Appellant used the credit card he reported as lost for
personal purposes after the date he reported it lost and both while he was still on the Council and
off the Council.
After an investigation the Tribes brought the criminal charges herein, alleging facts based
on eight of the several different incidents in which the Appellant used the credit card for personal
purposes.2 The eight (8) credit card uses by the Appellant which formed the basis of the
criminal charges against him include four (4) gas charges at the service station in Nespelem,
Washington, which is on the Colville Reservation; two (2) gas charges at a service station off
the Reservation in Coulee Dam, Washington; and two (2) cash advances totaling $842.98, taken
at the Two Rivers Casino, which is off the Reservation. All eight incidences occurred between
July 6-15, 2001.
At the jury trial on Jun 21, 2002 the jury found the Appellant not guilty of Embezzlement,
and guilty of both Fraudulent Credit Card Use and Misuse of Public Funds. The Trial Court
sentenced him consecutively on both charges on August 1, 2002 to the following: (1) $10.00
court costs; (2) a $5,000 fine with $4,000 suspended on conditions; and (3) 360 days in jail with
270 suspended, with some of the time to be served on electric home monitoring. The conditions
of the suspended portion of the sentence were ordered to be in effect for two (2) years from the
time of the sentencing, the length of which is being challenged on this appeal. The Appellant
filed a timely appeal on August 2, 2002.
ISSUES
The issues we will address herein are:
1.

Did the Trial Court err when it found jurisdiction over the crimes which included actions
the Appellant took off the Reservation regarding credit card use?

2.

Was the Appellant’s right to due process violated because Resolution 1999-395 failed to
give him adequate notice that if he violated the policies of the Resolution he could be
subjected to criminal charges?

3.

Did the Trial Court err in granting the Appellee’s Motion to Strike the Deferred
Prosecution agreement initially submitted by both parties?

4.

Did the Trial Court exceed its authority by sentencing the Appellant to conditions to be in

2

In his Order on Pre-Trial Motions dated February 11, 2002, the Judge found that the Appellant was not being selectively prosecuted (which is
not an issue before us) because, unlike credit card charges of other Council members, the Appellant’s charges were often not travel-related. The
judge found about eight cash advances the Appellant took from various cash machines at several tribal casinos, both in-state and out-of-state,
totaling in excess of $1,300.00. None of these transactions were made a basis of any of the criminal charges herein.

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effect for two (2) years?3
STANDARD OF REVIEW
All the issues presented are questions of law. We review de novo. Colville Confederated
Tribes vs. Naff, 2 CCAR 50, 2 CTCR 08, 22 ILR 6032 (1995); Wiley, et al v. Colville
Confederated Tribes, 2 CCAR 60 , 2 CTCR 09, 22 ILR 6059 (1995); Palmer v. Millard, et al, 3
CCAR 27, 2 CTCR 14, 23 ILR 6094 (1996) (Because the Tribal Court dismissed the case below
as a matter of law, we review the matter de novo.);

Pouley v. CCT, 4 CCAR 38, 2 CTCR 39,

25 ILR 6024, (1997) (The Appellate Court engages in de novo review of assignments or errors
which involve issues of law); In Re The Welfare of R.S.P.V., 4 CCAR 68, 3 CTCR 07, 26 ILR
6039 (1998).
1. Did the Trial Court err when it found jurisdiction over crimes
which included actions the Appellant took off the Reservation
regarding credit card use?
The Appellant’s position is that four (4) of the actions he took regarding use of the credit
card took place off the Colville Reservation, thereby depriving the Court of jurisdiction.
Specifically, there were two charges at a service station off the Reservation and two at the
Spokane Tribe’s Two Rivers Casino.
The Trial Court addressed this issue in its Order on Pre-Trial Motions, denying the
Appellant’s Motion to Dismiss, and finding there was jurisdiction. The Trial Court held that
there was sufficient nexus among the Appellant, the credit card given to the Appellant for use
only for tribal business purposes, all of the credit activities being billed to and paid by the Tribes,
and the harm, resulting on the Reservation. Referring to CTC §1-7-70, the Tribes’ general
jurisdiction statute4 the Trial Court found that it was the Tribes’ intent to authorize the Court to
exercise as broad jurisdiction as possible.
Both parties argued whether the incidences in question that took place off the Reservation
3

The Appellant also identified in his brief an issue of “whether the Tribes unlawfully charged the Appellant with both general and specific
charges for the same factual conduct in violation of CTC 1-1-7(k).” The Appellant made no arguments nor cited any persuasive authority on this
point. CTC 1-1-7(k) states: “When there is a conflict between one provision of this Code which treats a subject in a general way and another
which treats the same subject in a specific manner, the specific provisions will prevail.” This is a tenet of statutory construction and cannot be
“violated” in the sense the Appellant is asserting it. For these reasons we will not address this issue.
4

“To the greatest extent permissible by law, the jurisdiction of the Tribal Court shall apply to all persons on lands in the North Half and on other
lands where the Colville Confederated Tribes may be authorized to enforce its interests or rights and member asserting rights held by the Tribe
without regard to location.”

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were “essential elements” of the crimes charged. The Appellant argues they are, and because
they occurred off the Reservation the Court did not have jurisdiction. The Appellee urges this
Court to adopt the State of Washington’s statutory approach which includes language of when
the crime is committed in whole or in part within the jurisdiction of the Court. See, State v. Lane,
112 Wash.2d 464, 771 P.2d 1150 (1989).
The facts alleged are not “essential elements” of the crimes charged. The charge of
Fraudulent Use of Credit Card, CTC §3-1-49 reads:
“Any person who shall use a credit card for the purpose of obtaining property or
services with knowledge that the card is stolen, has been revoked or canceled, or
is unauthorized for use, shall be guilty of Fraudulent Credit Card Use.... [which] is
a Class B offense.”
The charge of Misuse of Public Funds, CTC §3-1-131 reads:
“Any person who shall, being a public servant or other person charged with
receipt, safekeeping, transfer or disbursement of public funds, without lawful
authority, appropriate funds to his own use or the use of another, or who shall
otherwise handle public funds in a manner not authorized by law, shall be guilty
of Misuse of Public Funds....[which] is a Class B offense.”
Class B offenses carry a maximum penalty of 180 days in jail, or $2,500.00 fine, or both.
The jury instructions correctly identify the essential elements of each of the offenses. Jury
Instruction 5 sets out the essential elements of the crime Fraudulent Use of Credit Card as:
“a. A credit card was used; or [sic]
b. For the purpose of obtaining property or services; or [sic]
c. The user had knowledge he was not authorized to use it; or [sic]
d. The Tribes had an ownership interest in the card.”
The language in the Jury Instruction tracks the statutory language. Jury Instruction 16 sets out
the essential elements of the crime Misuse of Public Funds as:
“a. A person being a public servant or other person charged with the receipt safekeeping,
transfer or disbursement of public funds; or [sic]
b. Acts without lawful authority, knowing he is without authority; or [sic]
c. The act consists of appropriating these public funds for his own uses.”
Where the acts took place that form the basis of the charges herein are jurisdictional in
nature, and not elements of the offenses charged. Jurisdiction goes to the power of the Court to
hear the matter because the defendant committed the actions that form the basis of the crimes
charged within the jurisdictional boundaries of the Reservation. The question is, where is the
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situs of the crime? The Trial Court answered this question in its Order on Pre-Trial Motions of
February 11, 2002. It held:
“

In this case, the credit card was the credit line of the Tribes. The Tribes is

certainly on the Reservation. Wherever he may have actually used the card, the
harm occurred here. Both the general authorization and the specific limits were
placed here on the Reservation... He was given lawful custody of the card here...
He was a public servant here and was charged with the safeguarding of the funds
here....
There is certainly sufficient nexus with the Tribes for jurisdiction in this case not
to violate due process. He received the card because he was a council member
for the Tribes. The use agreement was entered into here. He received his bills
here. He was given memos from the Tribes [sic] accounting department for
previous charges. He reimbursed the Tribes here. He lives here. He is a Tribal
member.” pp 11-12
The question is not one of finding a “nexus” between the actions off-reservation. The
question, as answered by the Trial Court, is whether the crime “occur” on the Reservation for
purposes of finding criminal jurisdiction. The Trial Court aptly pointed out all the instances in
which the crimes occurred on the Reservation in its findings above. In State v. Lane, 112
Wash.2d 464, 771 P.2d 1150 (1989), The Washington State Supreme Court looked at the
common-law roots of territorial jurisdiction, which required that the crime charged occur within
the boundaries of the State. It said:
“At common law, a state could criminalize an act if the conduct or results
occurred within the state... A concomitant notion, that a crime had only one situs,
limited the territoriality principle.... [T]he situs principle has been expanded, but
conduct within the state is still required. The cases are not to the contrary. The
dispute centers upon how much activity is required and upon whether the conduct
itself must be an element of the crime.” Lane, Utter’s concurring opinion at p 480.
In Louie v. CCT, 2 CCAR 47 (1994) , we found that a complaint had to give sufficient notice of
the specific acts that formed the basis of the crime charged. In Bachand v. CCT, 4 CCAR 23
(1997) we found the defendant received adequate notice of the specific actions he took that
constituted a crime under the statute when the police report was read into the record at the time
the defendant entered a guilty plea. The questions in Louie and Bachand were what constituted
adequate notice of the crimes charged in order to meet due process requirements. In neither case
did we discuss what were the essential elements of the crime that had to occur on the Reservation
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in order to acquire jurisdiction over the actions.
As set out in the jury instructions, the essential elements are set out in the applicable
statute. The complaint gives the Appellant adequate notice of the bases for the crimes charged.
The Trial Court’s duty was to determine, as a matter of law, if the actions occurred on the
Reservation. Its findings are sufficient and we will not disturb them on Appeal.5 We affirm the
Trial Court’s finding of jurisdiction.
2. Was the Appellant’s right to due process violated because Resolution
1999-395 failed to give him adequate notice that if he violated the policies of the
Resolution he could be subjected to criminal charges?
Resolution 1999-395 states:
WHEREAS, it is the recommendation of the Executive Committee that individual
Council members owing reimbursement(s) for Council Travel will receive written
notice with copies to the Council Secretaries, Accounting Supervisor and CBC
Chairman. The reimbursement(s) will be paid within (10) working days, unless
reimbursement to be made by another Agency/Organization. No travel will be
approved until the reimbursement is made. Any travel dispute(s) will be resolved
through CBC Secretaries, Accounting Supervisor or individual CBC and
individual Executive Committee Member(s)....
The Appellant argues that he relied on the practice developed under the Resolution in his past
actions regarding use of the VISA card in question. Ample evidence was presented to the Trial
Court to show that he used the VISA card for non-travel-related expenses (see footnote 2, supra)
without criminal consequences before. He further argues that the Resolution has the same force
and effect as the criminal statutes, and supersedes the statutes in that it provides a more specific
law for Council members to follow regarding personal use of the tribal credit card which
“preempts application of criminal sanctions.” Finally, Appellant argues the Resolution
“vitiates” the criminal statutes, and, as an extra-judicial method of dealing with Council
members, cannot be subject to prosecutorial interference, and as interpreted by past practice, does
not give the Appellant adequate notice that he could be subject to criminal sanctions, in violation
5

The question of whether the actions occurred on the Reservation would involve questions of fact only if the defendant raised an affirmative
defense, alleging the actions didn’t occur as alleged in the complaint. That is not a question in this case. The record doesn’t reflect that the
Appellant denies he charged gas to the tribal VISA card off the Reservation nor that he charged cash advances at the Two Rivers Casino. His
defense was that he mistook the tribal card for his personal card. The jury did not accept this defense, apparently, because it found him guilty. It
is not being challenged in the Appeal herein, so we will not review the jury’s decision on that basis.

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of his due process rights.
Although long on argument, the Appellant is short on reasoning, and cites no credible
authority for these premises. It is a long-recognized tenet that one has notice of what constitutes
a crime when one enters a jurisdiction. The Appellant was in the unique position of being one of
the law-makers for the Tribes. He took an oath to uphold the Constitution and laws of the Tribes.
His argument that misusing a tribal VISA credit card for personal use, at several tribal casinos,
and at a gas station is a privilege and right of a Councilman is disingenuous. At the best, his
reliance on not being prosecuted because he was a Councilman was seriously misplaced.
At the very least, the Council has a Constitutional duty not to enact policies that would
violate the laws of the Tribes. The language of the Resolution and the actions of other
Councilmen under the facts herein do not support the Appellant’s argument. It is clear from the
language that the VISA was to be used for business purposes. The jury found the Appellant
misused it. Not only is it against the laws of the Tribes, but he took an oath to act ethically while
in office as Councilman. As he stated in his brief: “Tribal members have a right to expect that
when their public officials speak, that their pronouncements will be more than mere words, and
that those words will be honored.” We affirm the Trial Court’s holding that the Appellant’s due
process rights were not violated. His reliance on the cloak of the Resolution was unfounded.
3. Did the Trial Court err in granting the Appellee’s Motion to Strike the
Deferred Prosecution agreement initially submitted by both parties?
Appellant argues that he entered into a deferred prosecution agreement with the
Prosecutor in good faith, and compromised his trial strategies, to his detriment, when he shared
information with the Prosecutor. The Prosecutor moved to strike the agreement and asked to
proceed to trial. The Motion was granted.
Both parties rely heavily in their arguments to this Court on caselaw dealing with plea
agreements that are withdrawn. This reliance is misplaced. Deferred prosecutions are not plea
agreements. By their very nature they are pre-adjudicative instruments designed to rehabilitate
rather than punish. They are considered sentencing alternatives. See, State v. Ammons, 105
Wn.2d 175, 180 (1986) (citing State ex rel Schillberg v. Cascade Dist. Court, 94 Wn.2d 772
(1980))
Generally speaking, the government has broad prosecutorial discretion when deciding
who to prosecute. See, Wayte v. United States, 470 U.S. 598, 607 (1985). This discretion
included withdrawing the decision for a deferred prosecution. Nothing in the record indicates
the Appellant moved to limit or exclude any information he feels the Prosecutor gained through
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the negotiation process. When asked at Oral Arguments what kind of information was used
neither party identified any specifics. We hold that Trial Court did not abuse its discretion in
allowing the prosecutor to exercise his discretion in withdrawing the deferred prosecution
agreement. If any harm came from it, the Appellant did nothing to prevent it at trial level and we
do not have enough proof of harm to review it now. The Appellant has failed to sustain his
burden on this issue. We affirm.
4. Did the Trial Court exceed its authority by sentencing the Appellant to
conditions to be in effect for two (2) years?
The Appellant was sentenced consecutively on two (2) Class B offenses. Each carried a
maximum jail time of 180 days and/or a fine of $2,500. The total jail time allowed, when
sentenced consecutively, is 360 days. As a condition of his suspended jail time and suspended
fine, the Court imposed two (2) years probation and other conditions for two (2) years, i.e. twice
the time allowed for the jail term (actually twice the time plus ten days).
The only authority provided for this issue is the statutory provision allowing the Court to
impose “reasonable” conditions for probation. CTC §3-1-261. Appellant argues that it is logical
to assume that twice the allowed jail time is unreasonable.
We cannot rule on suppositions. We take judicial notice that it has been a long-standing
practice of the Trial Court to impose such conditions. By saying it is unreasonable does not
make it legally so. The practice is reasonable on its face. The Appellant has not shown where the
harm would be nor how his due process rights would be violated. In effect, to shorten the time
would place the burden on the Appellant to pay his fine, do his community service work, and
comply with all the conditions in a shorter time span. We cannot speculate on what effect this
would have on his ability to do all of these things in a shorter time.
We need not speculate. We find that the statute allowing for reasonable conditions
supports the Trial Court’s decision. The Appellant has not met his burden in showing the Trial
Court abused its discretion. We affirm.
ORDER
Based on the foregoing reasons, we AFFIRM the Trial Court on all the issues herein, and
REMAND this matter back to the Trial Court for further actions consistent with this Opinion
Order.

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PAGE DELIBERATELY LEFT BLANK

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COLVILLE TRIBAL ENTERPRISE CORPORATION, Petitioner,
vs.
ADMINISTRATIVE LAW COURT, Respondent,
Nannette CHAPA, Real Party in Interest.
Case No. AP99-006, 4 CTCR 18
8 CCAR 11
[Leslie Weatherhead, represented Petitioner;
Respondent did not appear nor was represented;
R. John Sloan Jr., represented the Real Party in Interest;
Trial Court Case Number: A99-19004]

Oral arguments held December 17, 1999. Decided March 31, 2005.
Before Chief Justice Anita Dupris, Justice Dave Bonga and Justice Earl L. McGeoghegan
The Court of Appeals heard Oral Arguments on this case on December 17, 1999. The
Petitioner, Colville Tribal Enterprise Corporation (CTEC), appeared through counsel, Leslie
Weatherhead, attorney; The Respondent Court did not appear; the Real Party in Interest,
Nannette Chapa, appeared in person and through counsel, R. John Sloan, attorney.
Dupris, CJ, for the panel.
SUMMARY
The Petitioner, Colville Tribal Enterprise Corporation, (CTEC) filed a Writ of Prohibition
asking this Court to prohibit the Colville Tribal Administrative Judge from exceeding his
jurisdiction. The Administrative Judge heard an employment appeal in which Nannette Chapa
(Chapa), was reinstated in her position with CTEC’s Gaming Division. The Administrative
Court Judge found that, as a matter of law, Chapa did not commit the offense of Theft, which
was the basis for her employment termination. Chapa asserts the Writ of Prohibition is not
properly before this Court and should be denied. We agree.
FACTS
Chapa was an employee with CTEC at the Okanogan Bingo Casino in the pull-tab
department. The manager of the casino terminated Chapa’s employment with CTEC after
seeing on a casino video surveillance camera of January 19, 1999 Chapa giving the husband of
a fellow employee $40 worth of pull tabs without receiving money for them. CTEC found that
Chapa committed a theft of money. Chapa appealed through administrative channels, then filed
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an appeal with the Colville Tribal Administrative Court.
Chapa did not deny she gave the $40 worth of pull tabs. She stated she told the pull tab
teller she was going to “pay back” the pull tab amount later in the lunch room. Chapa stated she
did in fact pay the $40.00. An accounting of the pull tabs a couple of days later showed that the
pull tab games balanced.
The Administrative Court found that CTEC could not prove Chapa intended to deprive
CTEC of its property which, the Administrative Court held, was an element of Theft. The Court
held the termination was contrary to the law, granted Chapa’s appeal and ordered her
reinstatement.
CTEC filed a Writ of Prohibition with the Court of Appeals to order the Administrative
Court to confine its decision to its lawful jurisdiction and to sustain CTEC’s decision to
terminate Chapa.
ISSUES
SHOULD A REQUEST FOR A WRIT OF PROHIBITION BE
REVIEWED BY THE COURT OF APPEALS WHEN, AS IN
THIS CASE, IT IS FILED FROM THE ADMINISTRATIVE
COURT INSTEAD OF THE TRIAL COURT? IF SO, SHOULD
IT BE GRANTED IN THIS CASE?
DISCUSSION
I. THE COLVILLE TRIBAL ADMINISTRATIVE COURT IS NOT A
COORDINATE COURT OF THE TRIAL COURT
The first question is whether CTEC may bring its appeal directly to the Court of Appeals,
thereby bypassing the Trial Court. Appellant argues the Trial Court and the Administrative
Court are coordinate courts operating at the same level but adjudicating different matters, and
the administrative court is in effect a division of the Trial Court. It cites, as authority,
Resolution 1989-385 (Colville Tribal Court as an administrative court in certain cases).6 As
such, CTEC argues, the Court of Appeals has the authority to review decisions of lower courts
and the authority to issue the Writ of Prohibition to the Administrative Court.
Chapa argues the two courts are not coordinate courts and that CTEC did not exhaust its

6

Resolution 1989-385, states, in relevant part: “... the Colville Tribal Court ...[shall] be the administrative court in all cases where any
ordinance or resolution of the Colville Tribes provides for a hearing before an administrative court and such ordinance or resolution does not
specifically identify a court or agency to act as the administrative law court....”

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remedies before appearing in the Court of Appeals. In support, Chapa asserts the Trial Court
has more authority and less limitations than the Administrative Court. The uniqueness of the
question makes it one of first impression and without an equal in the non-Indian court systems.
For these reasons we do not have legal authority from the state and federal systems to offer us
guidance.
We have ruled in the past that the Administrative Court is part of the Executive Branch
and is an administrative tribunal. See E. S. v. CCT Adm. Law Court, et al., 1 CCAR 48, 1
CTCR 54 (1991).
In CTEC v. Orr, 5 CCAR 1, 3 CTCR 05, 26 ILR 6005, (1998) we stated
“...it is our understanding that the Colville Tribal Administrative
Court is a court of limited jurisdiction, not a court of last resort....
[and] limited by the jurisdiction given them by the lawmakers.
They are not normally considered full courts of equity.”7
The language regarding the administrative court is in dicta, however, and not squarely
answered by this Court. After reviewing the law we find the dicta in Orr to state the better law
in this matter, and hereby adopt it as controlling. We hold that the Colville Tribal Administrative
Court is not a coordinate court of the Trial Court. It is an administrative tribunal with limited
jurisdiction.
II.

REQUEST FOR WRITS MAY BE BROUGHT DIRECTLY TO THE

COURT OF APPEALS IN CASES WHERE THE TRIBAL COURT
JUDGES ALSO ACT AS ADMINISTRATIVE JUDGES
Even so, Petitioner argues, it should be able to bring it’s request for a Writ directly to the
Court of Appeals because the judges of the Administrative Court are inextricably tied to the Trial
Court. The Council has designated the trial judges as the administrative judges. See Resolution
1989-385 (supra, at footnote 1). Petitioner’s argument has merit. It is conceivable there can be
potential conflicts of interest when an Associate Judge is asked to rule on the appropriateness of
the Chief Judge’s opinions when the Chief Judge is acting as an administrative judge. The Chief
Judge is responsible for assigning cases to the Associate Judges, and for administrative
supervision of the Associate Judges. See CTC §1-1-100 (“...Associate Judges shall preside over
proceedings as assigned by the Chief Judge....”). It creates an appearance of fairness problem.
This Court has issued Writs of Mandamus in two cases. See, Gallagher v. Anderson, et
7

In CTEC v. Orr the issues involved implied contracts and termination-at-will of employees, and not the nature of the administrative court.

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al., 5 CCAR 51, 3 CTCR 37 (2001) (Court of Appeals issued a Writ of Mandamus directing
Trial Court to rule on eight motions) and CCT v. Laramie, 4 CCAR 2, 2 CTCR 65, (1997)
(Court of Appeals issued a Writ of Mandamus directing the Trial Court to issue a stay pending
appeal and determination by the Court of Appeals if the order being appealed was final). Both
Writs came from the Trial Court. Whether Writs from Administrative Court may be filed initially
with the Court of Appeals is a question of first impression.
The U.S. Supreme Court, in Ex Parte Republic Peru, 318 U.S. 578, 63 S. Ct. 793, 87
L. Ed. 1014, (1943), citing Ex parte United States, 287 U.S. 24, recognized that in certain
circumstances it could address a Writ of Mandamus even when appellate jurisdiction was in a
lower court. It said:
“...[S]uch power will be exercised only where a question of public
importance is involved, or where the question is of such a nature
that it is peculiarly appropriate that such action by this Court
should be taken. In other words, application for the writ ordinarily
must be made to the intermediate appellate court, and made to this
Court as the court of ultimate review only in such exceptional
cases.” (at 87 L. Ed. pp 584-585)
Although the Navajo Nation has statutory authority which allows its Supreme Court to
issue Writs to lower courts, (see, Yellowhorse et al v. the Window Rock District Court, the
Honorable Robert Yazzie, Judge, No. A-CV-15-86, 1986) the Navajo Supreme Court also
recognizes the inherent authority of its Court to issue such writs:
“The highest appellate court should also have authority to entertain
original proceedings, such as those for writ of mandamus or
prohibition, in aid of performing its responsibilities as a court of
review. This authority is generally and properly held to be an
inherent aspect of the highest court's status as such.” In the Matter
of Contempt of Arnold Sells, A-CV-05-85 (Navajo, 5/31/1985)
(cite omitted).
We find these authorities persuasive and hold that an exceptional case exists herein. That
is, when the same judges act in the capacity of both trial judges and administrative judges, it is
appropriate to seek relief by Writ directly from the Court of Appeals. Respondent argues that
this Court is without any statutory authority to issue Writs. It is true there is no specific statutory
authority. We agree, however, with the Navajo Court’s assertion of an inherent authority to
address the issues in a Writ. Our Courts are young in comparison to the state and federal systems.
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We are constantly growing, in amount of cases and complexity. In recognition of the potential
that the Court would grow faster than the statutes, the Tribes enacted CTC §1-1-144. 8 We hold
that in this case the Court of Appeals has the authority to address the request for a Writ herein.
III.

WRIT OF PROHIBITION STANDARDS NOT MET

In assessing whether a writ of prohibition should issue, we first need to establish the
standards to use. There are none in our tribal statutory or case laws at present. In Yellowhorse,
supra, the test for a Writ of Prohibition was set out as follows:
A writ of prohibition is an extraordinary remedy which will be
granted only in rare cases showing absolute necessity. At a
minimum the application must show that (1) the lower court is
about to exercise judicial power; (2) the exercise of such power by
the lower court is not authorized by law; and (3) the exercise of
such power will result in injury, loss or damage for which there is
no plain, speedy and adequate remedy at law.
Both parties, citing state and federal authorities, recognized that Writs of Prohibition are
extraordinary remedies, used to confine a lower court to not going beyond its jurisdiction in its
decisions, and used in situations for which there is no adequate legal remedy. We reviewed the
standards set in the state and federal cases, and find that the standard set out in Yellowhorse,
supra, is more appropriate for our jurisdiction. The Yellowhorse standard has three (3) criteria:
(1) the lower court’s prospective, impending exercise of jurisdiction; (2) the illegality of such
exercise of jurisdiction; and (3) the irreparable, immediate harm to the Petitioner for which there
is no other adequate legal remedy other than a Writ. This high standard is necessary to prevent
the Court of Appeals from unduly interfering with the day-to-day work of the lower courts. We
adopt the Yellowhorse standard.
It is the Petitioner’s position that the lower court herein exceeded its jurisdiction in that
the Administrative Court found the weight of the evidence was different than that found by
CTEC. The Administrative Court found that the evidence was insufficient to prove that Chapa
intended to commit theft and her termination from employment for theft was contrary to law.
The Petitioner asserts the Administrative Court, in making such findings, acted beyond

8

Means to Carry Jurisdiction Into Effect. When jurisdiction is vested in the Court, all the means necessary to carry into effect are also given
and in the exercise to 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.

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the court’s limited jurisdiction as granted in CTEC’s Personnel Policies and Procedures
Manual (Manual), which states, in part:
“The Administrative Court shall affirm the decision to terminate
unless the Administrative Court finds that, (1) at the time the
decision was made there was no evidence to support the decision;
(2) that the decision was contrary to Law. It shall not be grounds to
reverse that the Administrative Court would have reached a
different decision. The decision of the Administrative Court shall
be final and there shall be no further appeals or review in any Court
or other forum.”
The Petitioner, by its own policies then, cannot ask for a review of the decision by the
Trial Court because decisions of the Administrative Judge are final. For this reason CTEC has
filed the request for a Writ of Prohibition, asking this Court to direct the Administrative Court
to not exceed its jurisdiction in its review of CTEC’s decision. CTEC asserts the
Administrative Court acted beyond its jurisdiction. Beyond finding that the Administrative
Court exceeded its jurisdiction, the Petitioner also asks us to direct the Administrative Court to
change its decision, which in effect, would be reversing the Administrative Court’s decision.
Chapa, as real party in interest, aptly points out that in fact the Petitioner is using the Writ of
Prohibition to get an appeal because it does not allow appeals in its own policies.
We apply the Yellowhorse three-prong test in deciding whether a Writ of Prohibition
should be granted herein. That is: (1) the lower court is about to exercise judicial power; (2) the
exercise of such power by the lower court is not authorized by law; and (3) the exercise of such
power will result in injury, loss or damage for which there is no plain, speedy and adequate
remedy at law. Yellowhorse, supra. If the Petitioner fails to meet any one of the prongs of the
test, the Writ should not be granted.
The Petitioner cannot meet the first part of the standard for Writs of Prohibition: it asks
this Court for a retrospective remedy. It asks this Court to tell the Administrative Judge he was
wrong in his already-entered findings, and to change them. There is no issue on the prospective,
impending exercise of jurisdiction by the Administrative Judge before this Court. For this reason
we will not even address the second and third prongs of the Yellowhorse standard, and we deny
the Writ and hereby dismiss the request for a Writ of Prohibition in this matter.
It is so ORDERED.

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Ryan MARCHAND, Appellant,
vs.
Colville Confederated Tribes, Appellee.
Case No. AP05-001, 4 CTCR 19
8 CCAR 18
[Steve Graham, Attorney at Law, representing Appellant.
Samuel Conkin, Office of Prosecuting Attorney, representing Appellee.
Trial Court Case No. CR-2004-27167]

No oral arguments were conducted, decision based on briefs filed.
Decided May 20, 2005
Before David Bonga, Presiding Justice, and Associate Justices Edythe Chenois and Howard E.
Stewart
Bonga, J.
SUMMARY
On June 7, 2004, Appellant was charged by criminal complaint with Battery,
Contributing to the Delinquency of a Minor, and Abduction. A judge trial was begun on August
5, 2004, and concluded on August 28, 2004. Appellant was found guilty of all three charges.
Sentencing was held on October 15, 2004. At the conclusion of the testimony, Judge Aycock
reserved imposition of the sentence until he had a chance to review the report that was submitted
and was able to craft a sentence that would be tailored to Appellant’s situation. Judge Aycock
stated on the record that he would make his ruling the following Monday, which would have
been October 18, 2004. A written decision was eventually issued on January 4, 2005. Appellant
timely filed his appeal. A briefing schedule was agreed upon by the parties. Appellee failed to
submit a brief. After review of the documents submitted, review of additional case law, the Court
has found that the Trial Court erred by continuing the trial absent extraordinary circumstances
beyond the 60 day limit.

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STANDARD OF REVIEW
The appellant must prove the trial judge clearly abused his discretion based on a review
of the facts of the case and the decision made. This review by the Court of Appeals cannot be de
novo. It is within the discretion of the Trial Court to grant or deny continuances. Unless there is a
showing of clear abuse of discretion, this Court will not overturn a decision of the Trial Court. A
review for an abuse of discretion violation requires that the Court of Appeals must find the Trial
Court’s actions were manifestly unreasonable, exercised on untenable grounds, or for untenable
reasons. Jack v. CCT, 6 CCAR 11 (2002). Review for an abuse of discretion requires that before
we will overturn the Trial Court’s decision, we must find that its actions were manifestly
unreasonable, exercised on untenable grounds, or for untenable reasons. We further need to
review for due process violations. Grunlose v. CCT, 5 CCAR 26 (1999).
COACR 13(e)(3) Effect if Briefs Not Filed, states that if an appellee does not file a brief
which has been ordered pursuant to an established briefing schedule and doesn’t request an
extension, the Court may decide the appeal based on the appellant’s brief and the trial record.
ISSUE: Did the Trial Court err by continuing the trial for the tribal prosecutors to locate
witnesses to come to court?
Appellant argues in his brief that his client was prejudiced by the court when it put the
trial on hold to allow the prosecution to locate additional witnesses. He asserts that it is widely
regarded that a goal of the courts is to avoid delay. A judge’s recollection may be compromised
by a delay, no matter how conscientious a note-taker he may be. This would violate his client’s
rights to due process through a speedy trial. A review of the record indicates that there were no
exceptional circumstances stated that would allow the Court to continue the trial past the 60-day
limit. As Appellee did not submit any argument in opposition to Appellant’s position, we are
compelled to grant this appeal based on this ground without discussing the two additional
grounds for appeal. We hold that the trial court erred by continuing the trial past the 60-day limit
without finding exceptional circumstances for the continuance.
Based on the above, we are granting the appeal and remanding to the trial court for
dismissal of the case.

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Echo CRIM, Appellant,
vs.
Shon BAKER, Appellee.
Case No. AP04-007, 4 CTCR 20
8 CCAR 20
[Dan Gargan, Spokesperson for Appellant.
Tim Liesenfelder, Spokesperson for Appellee.
Trial Court Case Number CD-CR-2003-23271]

Argued on August 19, 2004. Decided July 11, 2005.
Before Chief Justice Anita Dupris, Justice Edythe Chenois and Justice Elizabeth Fry
Fry, J. for the Panel.
SUMMARY
This matter came regular before this Court on August 19, 2004 for Oral Argument. The
following persons were present, Dan Gargan, Spokesman for Echo Crim, Tim Liesenfelder,
Attorney, Spokesman for Shon Baker, and Shon Baker, Appellee.
The Court, having reviewed the records and files herein, and being fully advised in the
premises, affirms and remands.
FACTS I.
Echo Crim, Appellant, and Shon Baker, Appellee, resided together in an apartment for six
years. It was not established that they had a meretricious relationship. The Trial Court signed the
order March 19, 2004 for the trial on November 7, 2003 dividing their property. Both parties
were represented by counsel at trial. Show cause hearings were held on July 21, 2003 and August
11, 2003. The Court found that the Appellant had removed Appellee’s clothing from the
apartment and charged the Appellant with 75% of the value of the clothes for a total of
$1,030.50. The Court found that the Appellant had thrown food out of the apartment and ordered
that she pay the Appellee $200.00. The Court denied the Appellant’s request for the items on the
lists filed by her on July 7, 2003 and August 7, 2003 since there was no testimony on them at
trial. The Court denied the motions by the Appellee for his items on page one of his list entitled
“Shon’s Stuff Missing from Truman and Jackies” filed with the Court on November 7, 2003, as
he did not prove at trial that the Appellant removed them from Truman and Jackie s residence.
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The Court then found that (a) the washer/dryer belonged to the Appellee, (b) the Nintendo Game
with four games would be split 50/50 between the parties, with one person to keep it and
reimburse the other for 50% of its value, or $350.00, (c) the same would happen with the new
tent, one person would keep it and reimburse the other for 50% of its value, or $80.00, (d) the
blue blanket was ordered to be split 50/50 with one person keeping it and reimbursing the other
for 50% of its value, or $10.00, (e) the VHS/VCR was dealt with in the same for a value of
$120.00, (f) the multi-colored bath mat would be dealt with in the same way, for a value of
$10.00, (g) four bath mats would be dealt with in the same way, for a value of $20.00, (h) the 27"
television would be dealt with in the same way, for a value of $250.00, (i) the $150.00 borrowed
from Debra Crim would be split 50/50 between the parties, (j) the shower stall damage cost
would be shared equally with the amount split equally when the receipt arrived, (k) the broken
eagle bell should be returned to Shon Baker, as it was a gift to him. The Court ordered the parties
to mediation to settle ownership of items on the Appellant’s Exhibit E filed on December 4, 2003
and the Appellee’s two lists filed on November 21, 2003.
The Court issued a restraining order against the Appellee to not contact or be within 100
feet of the Appellant, nor to be within 50 feet of her residence, but is allowed to visit other
people at the same apartments. The Court also issued a restraining order against the Appellant
to not contact or be within 100 feet of the Appellee. The restraining orders shall remain in effect
until November 7, 2005 unless modified.
The Court ordered that settlement of the items (i) to (k) should also be dealt with during
the same mediation. The Court reserved rulings on Finding of Fact #6, which referred to the
post-trial lists, and which was ordered to be the subject matter of mediation between the parties.
Appellant now argues that (1) many items on the list by Appellee were not there or were
already removed, (2) Appellant had testified that 6-16 garbage bags of clothing had been
removed by the Appellee, (3) no inventory of property had been taken, (4) a sum certain had not
been determined, (5) no ruling on the vehicle though the title was with the Appellant, (6) the
food in the apartment spoiled and they disposed of it and now it is valued at $200.00, and their
purchase was never established at trial, both claimed purchase, (7) there should be a correction in
the math on what she owes, which the Court ordered at $1,030.50 for clothing and $200.00 for
food for a total of $1,230.50 and not $2,261.12, (8) there is a fair amount of the property still in
the apartment, he requested to store. The Appeals Court allowed the Trial Court to determine this
matter.
The Appellee argues that (1) there was no arbitrariness at trial, (2) the Trial Court was in
the best position to judge veracity, evidence was in the record, a number of things were removed
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from the apartment, values you were assigned to items, (2) mediation was not done.
ISSUES II.
1. Is there a sufficient basis for the Court’s ruling?
2. Should the Appellate Court remand for any reason?
DISCUSSION III.
The standard of review in this case is the “clearly erroneous” standard as established in
Colville Confederated Tribes v. Nadene Naff, 2 CTCR 08, 2 CCAR 50, 22 ILR 6032. The case of
Hoffman v. Colville Confederated Tribes, 4 CCAR 4 (Colville Confederated 05/05/1997)
discussed the Pullman-Standard v. Swint9 decision, which based this standard of review on
Federal Rules of Civil Procedure (hereinafter FRCP), Rule 52(a), which in 1982 provided that
district courts' "findings of fact shall not be set aside unless clearly erroneous, and due regard
shall be given to the opportunity of the trial court to judge the credibility of the witnesses."
Upon review of these proceedings, this Court determines that there was a sufficient basis
for most of the findings of facts. There are however, several exceptions. There is the Debra
Crim loan, characterized by the Trial Court as money “borrowed from Debra Crim,” which
according to the record was actually made to her rather than from her. The Trial Court should
determine who Debra Crim borrowed the money from, and to whom she owes it. The Trial
Court should make a ruling on the ownership of the vehicle, and should also correct the math in
the amount that the Appellant owes the Appellant to $1,230.50.
The Trial Court should reconsider her decision to order mediation on the remaining item
lists, since it seems apparent that the parties will not be able to mediate with mutual restraining
orders in effect.
ORDER IV.
The Court, being fully advised in the premises, affirms the lower court decision except
for the following, wherein the Court finds good cause to remand this matter to the Trial Court for
a determination of the following:
(1) to whom the Debra Crim Loan is to be repaid, the Appellant or the Appellee, or to
share equally,
(2) the value and ownership of the vehicle,
9

456 U.S. 273, 102 S.Ct. 1781 (1982).

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(3) correction of the judgment amount owed by the Appellant to $1,230.50,
(4) the value and ownership of the remaining unlitigated items on the post-trial lists.
IT IS SO ORDERED.

In Re the Welfare of J.L.V. (05-20-92), J.M.V. (12-29-93), & I.B. (04-20-99).
Jose Valdez-Catalan, Appellant,
vs.
Colville Confederated Tribes (CFS), Jessilyn Ballesteros (mother),
and J.V., J.V., and I.B. (Minors), Appellees.
Case No. AP02-006, 4 CTCR 21
8 CCAR 23
[Wayne Svaren, Spokesperson for Appellant Father.
David Ward, Spokesperson for Appellee CCT.
Dana Cleveland, Spokesperson for Appellee Minors.
Tim Liesenfelder, Spokesperson for Appellee Mother.
Trial Court case number CV-MI-2000-02003]

Argued July 18, 2003. Decided July 21, 2005.
Before Chief Justice Anita Dupris, Justice Dennis L. Nelson, and Justice Theresa M. Pouley
This matter came before the Court of Appeals on July 17, 2003 for oral argument. Appellant, father,
appeared through counsel Wayne Svaren. The Appellee, CFS, appeared through David Ward. The
Appellee, Jessilyn Ballesteros, did not appear in person or through counsel. The Appellees, J.L.V.,
J.M.V. and I.B., appeared through their spokesperson, Dana Cleveland of Colville Legal Services. Oral
arguments were held before Chief Justice Dupris, Justice Nelson and Justice Pouley.
Pouley, J for the Panel
SUMMARY
The Appellant Jose Valdez-Catalon (Appellant) appeals the October 30, 2002 Dependency
Review Order which excluded Appellant, the natural father, from consideration for placement of his two
minor children and their sibling, his step-child. Appellant asserts that the Trial Court (Court) erred in
excluding him from consideration on the basis of his citizenship and residence in Mexico and on the
basis of “not splitting up the siblings.” Appellant argues in the alternative that the Court made
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insufficient factual findings to support these claims and failed to articulate clear legal standards for its
conclusions. The Colville Tribes, Appellant and the children’s counsel argue that any error is a harmless
error because the children should remain on the Colville Indian Reservation and that Colville custom and
tradition would require such a result.
Based on the reasoning below the Court of Appeals (COA) finds that the Court made insufficient
legal and factual findings to exclude the natural father from consideration for placement of the children,
and REVERSES and REMANDS this matter for findings consistent with the standards set in this
opinion.
FACTS
The three minors in this case, J.L.V., J.M.V and I.B., were made Minors-in-Need-of-Care and
have remained in an out-of-home placement since August 5, 2000. Appellee Jessilyn Ballesteros is the
natural mother of all three children. Appellant Jose Valdez-Catalon is the natural father of J.L.V and
J.M.V and the stepfather to I.B. Appellant is a Mexican citizen and resides in Mexico. The putative
father of I.B. is Jay Seller, but paternity has not yet been established and his whereabouts are unknown.
CCT Individual Service Plan (ISP) 9-1-01. The mother and all three children are members of the
Colville Confederated Tribes.
In 2000, the children were picked up and placed in foster care. The Court’s orders, spanning
more than two years, chronicle Appellant’s involvement in the subsequent dependency process. In 2000,
Appellant was incarcerated in the Spokane jail and was eventually deported. The Order from the
Adjudicatory Hearing dated August 30, 2000 states that the children wished to visit with their father and
that the Court found visitation to be in the children’s best interest. On March 7, 2001, the Court found
that Appellant had taken an “active role” with his children. On April 9, 2001, the Court’s order allowed
Appellant weekly visits with the children during his incarceration. On June 6, 2001, the Court found the
mother had not complied with her court ordered requirements. The Court also found Appellant had
progressed with his requirements and ordered Colville Family Services (CFS) to investigate placement
with him including assessment of CFS’s ability to monitor a case in Mexico, to obtain enforcement of
Colville Orders, to identify services available to transport the children to Mexico and to arrange for
visitation with the children.
In the next review hearings, CFS recommended the return of children to their father in Mexico.
Appellant had complied with all court orders and CFS made arrangements to have his compliance
information properly documented in Mexico and communicated to the Tribe, including urinalysis results.
The remaining identified issue was whether CFS could continue to actively monitor the case in Mexico.
The review order, filed on June 17, 2002, directed the Tribe to prepare appropriate documentation to
coordinate services with Mexico and prepare a home study. See Appellant’s Opening Brief, page 4, and
Tribal Court Order, filed October 30, 2002.
At the next review hearing, appealed to COA, the Court apparently reconsidered the previous
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plan of placing the children with their father in Mexico. In October of 200210, the Court reviewed this
matter and found that: 1) the CFS Caseworker was considering Appellant for placement of the children;
2) that the Colville Prosecuting Attorney learned that the U.S. State Department considered Mexico to be
“out of compliance” in its agreements with the United States; 3) that sending the children to Mexico
would be a “crapshoot.” The Court then ordered that: “Jose Valdez-Catalan will no longer be considered
an option for placement of the minor children so long as he remains in Mexico. The Court will not
consider splitting up the three minor children to send two children, J. and J., to Mexico.”
Appellant timely appealed. Numerous continuances, not detailed here, were properly requested
and granted. Oral arguments were finally heard in July of 2003. It should be noted that in each of these
hearings Appellee mother was not in substantial compliance with her court- ordered requirements and
was not being considered for placement.
DISCUSSION
I. Can the Trial Court, on the basis of the record in this matter, exclude placement with a
natural parent in compliance with his service plan based on the fact that he is a citizen and
resident of Mexico?
Appellant argues that he is a fit parent, has complied with all court orders and should not
wrongfully excluded from his children. Both parties argue that the “best interest of the child” standard
should apply. However, Appellant argues, the Court failed to articulate clear legal standards. Appellee
CFS argues this failure is harmless error. We hold that when important dispositive rulings regarding
rights of parents and children are implicated, the Court must properly apply the “best interest of the
child” standard finding to exclude the natural parent from placement.
The “best interest of the child” standard is well-established in Colville Tribal statutory and case
law. The Colville Tribal Code, CCT 5-2-1 states:
Purpose and Construction. It is the purpose of the Chapter to secure for each
child coming before the Tribal Juvenile Court such care, guidance, and control,
preferable in his own home, as will serve his welfare and the best interests of the Colville
Confederated Tribes; to preserve and strengthen family ties whenever possible; to
preserve and strengthen the child’s cultural and ethnic identity whenever possible, to
secure for any child removed from his home that care, guidance, and control as nearly
equivalent as that which he should have been given by his parents to help him develop
into a responsible, well-adjusted adult; to improve any conditions or home environment
which may be contributing to his delinquency; and at the same time to protect the peace
and security of the community and its individual residents from juvenile violence or
law-breaking. To this end, this Chapter is to be liberally construed.
10

Although the Order itself has a file stamp of October, 2003, it was undisputably entered in October of 2002.

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CTC 5-2-1.
The COA had occasion to further define this standard. In the context of terminating a parents
rights, with almost identical purpose language, the COA in In Re the Welfare of L.S, M.S., and C.S.,
stated:
It is uniformly held that substantive decisions regarding the welfare of a child shall be in
the best interest of the child. Welfare of child is paramount consideration in determining
the best interests of the child. (Emphasis added, citations omitted.) Tribal Courts have
regularly exercised discretion in determining the welfare and what is in the best interest
of minor children and, in the best interest of the Colville Confederated Tribes.
3 CCAR 72, 74 (1997).
Thus the Colville Tribal Code directs and the COA has held that in determining the care of minor
children, such care must be in the best interest of the child and the Tribe, and must seek to give such care
and guidance to preserve and strengthen families whenever possible. See CTC 5-2; In Re the Welfare of
J.AM., K.A.M., P.M., S.Z.M.Z., 3 CCAR 6, 8 (1995).
Case law is equally well-established on factors used to determine the best interests of the child.
The determination of the best interests of the child is a highly factual inquiry which will not be disturbed
on appeal without a showing of abuse of discretion. The Court must weigh a variety of factors, including
identifying the appropriate factors and weighing such factors to reach an appropriate legal conclusion.
Appellant argues the Court should adopt the standards articulated in In the Matter of the Dependency of
J.B.S., 123 Wn. 2d. 1 (1993). Although we note that some of the specific factual inquiries for persons
who are foreign nationals are useful, Colville Tribal law provides sufficient guidance on the factors to be
weighed. For clarity, we will outline the factors which should be included in an inquiry based on the best
interest of the child. The following factors, and others as needed on a fact-specific basis, should be used
in determining the best interest of the child:
1. The appropriateness of the care, guidance and control given to a child. CTC 5-2-1.
2. Preserving and strengthening the child’s family which may include consideration of the harm
suffered by the child in severing family relations. CTC 5-2-1.
3. Preserving and strengthening the child’s cultural and ethnic identity which may include
considerations involved in placing a child in another cultural or ethnic region. CTC 5-2-1.
4. The appropriateness of the home environment including the availability of a safe and stable
home, and the effect of abrupt changes in that environment.CTC5-2-1; In Re Welfare of
S.M.C., E.M.P., 2 CCAR 45, 46 (1994);
5. The availability of services, including therapeutic, educational and cultural for the child at
their home or placement. In re Welfare of D.A., L.F., 3CCAR 54,56 (1996).
6. The attachment of the child to the parents and/or their home and/or their siblings including
consideration of the length of current placement. In re Welfare of L.S., M.S., and C.S., 3
CCAR 72, 74 (1997). This would necessarily include consideration of the child’s
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psychological and emotional bonds with each parent, siblings and extended family. In the
Matter of the Dependency of J.B.S., 123 Wn. 2d. 1, 11 (1993).
7. The attributes of the child including his or her age, physical well-being, and depending on
the age of the child perhaps the child’s wishes and certainly any harm to be suffered by the
child by a substantial change in circumstances. In re Welfare of L.S., M.S., and C.S., 3 CCAR
72, 74 (1997) and In re J.B.S. 123 Wn. 2d at 11.
This list is not meant to be exhaustive but rather instructive of the type of factors to be considered and
weighed with specific facts by the Court.
When these factors are compared to the record below, the factual record does not provide
sufficient information to weigh and balance the factors. We are not unmindful of the burden such an
inquiry would place on the Court in a typical review case where little has changed. However, this
examination is necessary when such a substantial modification, such as finding a child will not be
returned home to a parent, is done in a dependency review hearing.
The Appellee CFS and the Children’s Attorney argue that the custom and tradition of the
Colville Tribes weighs in favor of the children remaining on the Colville Reservation. Thus, Appellees
argue, since the result of the Court was correct, then the error must be harmless. We do not agree. The
custom and tradition of the Tribes was neither argued, weighed or considered in the Court’s findings.
Appellees are correct that this is a factor that must be weighed. However, the Court’s lack of findings
preclude us from reviewing the matter. As a final note, the Court did not consider or issue any findings
regarding the “best interest of the Tribe.” For all these reasons, we hold the Court erred in failing to
identify the legal factors and weigh each factor as required.
II. Did the Court err in finding that the detriment from separating siblings was sufficient
to exclude consideration of the natural father for placement?
Appellant agues that the Court gave improper weight to this factor when balanced against the
return of the natural children to their natural parent who is successfully complying with court orders.
This is an appropriate factor to consider in placing children. See, Number 6 & 7, supra. However, this
factor alone cannot support an order to exclude a natural parent from having his or her children returned.
As with the previous factor, we hold the Court erred in failing to properly identify and weigh the factors
for consideration.
CONCLUSION
For the reasons stated in this Opinion, this matter is REVERSED and REMANDED for the Court
to properly weigh the above factors and enter Findings of Fact and Conclusions of Law consistent with
the “best interests of child” standard.

Benjamin CAMPBELL, Appellant,
vs.

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COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP05-006, 4 CTCR 22
8 CCAR 28
[Wayne Svaren, Spokesperson for Appellant.
Samuel J. Conklin, Spokesperson for Appellee.
Trial Court Case No. CR-2005-28014]

Initial hearing held July 15, 2005. Decided July 22, 2005.
Before Chief Justice Anita Dupris, Justice Edythe Chenois and Justice Howard E. Stewart
Dupris, CJ, for the Panel.
This matter came before the Court for an Initial Hearing on July 15, 2005. This hearing
was rescheduled from June 17, 2005 in order for the parties to submit initial briefings specifically
on the issue whether the Appellant has a prima facie case to go forward on appeal. For the
reasons stated below we find there is no prima facie case and the Appeal is denied.
FACTS
On January 14, 2005 the Appellant was charged with one count of Obstructing Justice
and one count of Criminal Homicide; he was arraigned on the same day as he was charged. He
was held without bail pending the trial, which under the law entitles him to a trial within sixty
(60) days of his arraignment. After several pretrial hearings around the sixtieth day, the Appellee
Tribes moved to dismiss the charges without prejudice alleging the Tribes was not prepared to go
forward in that it was waiting for evidence from the Federal Bureau of Investigation. The
Appellant objected on record to the dismissal without prejudice based on the length of time he
had been incarcerated without bail. The Chief Judge, in his ruling dated the 21st of March, 2005
and signed the 1st of April, 2005, stated the rule of law in CCT v. Laramie, 4 CCAR 22 (1997),
and CCT v. Swan, 7 CCAR 38 (2003) dictated that it would be an abuse of discretion if he didn’t
dismiss without prejudice. He relied on the language in Swan which states: “A dismissal with
prejudice should be entered only when the merits of a case have been heard by the court.” The
Appellant filed a timely appeal, asserting that a dismissal with prejudice was appropriate in this
case.
ISSUE
This Court, upon initial review of the Appeal as submitted could not identify an

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appealable issue based on the prior rulings of this Court. The parties were instructed to file
briefs specifically addressing whether there was a prima facie basis for the appeal, given there is
prosecutorial discretion to not prosecute a case. The Appellant filed a brief; the Appellee did
not.
The Appellant acknowledged that prosecutorial discretion allows the Appellee to ask the matter
be dismissed. He argues, however, that the Judge’s discretion allows granting a dismissal with
prejudice.
We consider the following issue:
Does the Trial Court have discretion to grant a dismissal with
prejudice under any circumstances?
DISCUSSION
The Trial Court’s reading of Swan is correct but incomplete. Swan is not the only case in
which this Court has dealt with dismissals with and without prejudice. There are two (2) other
cases, CCT v. Jack, 7 CCAR 33 (2003) and Stensgar v. CCT, 2 CCAR 20, 20 ILR 6151 (1993),
both of which give some direction on factors to consider in dismissing with or without prejudice.
Unfortunately these cases were not discussed in Swan, so we will interpret all of them together in
order to give the Trial Court a uniform standard to consider when confronted with motions for
dismissals with or without prejudice.
In Stensgar this Court considered the question of whether the matter had to be dismissed
with prejudice because the sentencing took place after sixty days from the finding of guilt. This
Court held that the time requirements were jurisdictional, and that the following were factors for
the Trial Court to consider in deciding if the dismissal should be with or without prejudice: that
the length of delay was minimal; the cause for delay was administrative and not intentional by
the prosecutor; the defendant delayed in asserting his right to sixty days until after the delay
happened; and there was no prejudice to the defendant.
Stensgar clearly delineates some guidelines for the Trial Judge to follow in weighing his
discretion to grant a dismissal with or without prejudice. We reinforced this discretion in Jack.
In Jack the Trial Judge dismissed the charge with prejudice sua sponte. We acknowledged the
general rule that dismissals with prejudice are “normally reserved for situations in which
jeopardy has attached.” We went on to state that dismissals with prejudice can also be granted
“when the Judge finds a party has acted in bad faith, or filed a frivolous case, for example.”
Both the Stensgar and Jack cases recognize the Trial Judge’s discretion to grant
dismissals with prejudice. Swan, taken in context of such rulings, reinforces that the general rule
is that dismissals with prejudice are generally reserved for cases in which jeopardy has attached
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or there has been a hearing on the merits. One distinction in Swan is that the Judge entered the
dismissal with prejudice sua sponte, as he did in Jack. Another distinction for Swan is that the
Trial Judge did not set out his reasoning for dismissal with prejudice in a situation where there
was no adjudication on the merits.
Finally, in Stensgar this Court looked to federal analysis of the issue as a guideline. In
United States v. Taylor, 487 US 326 (1988), the Supreme Court stated that if there were no
federal guidelines to follow, as there were in its case, the court “would be expected to consider
‘all relevant public and private interest factors’ and to balance those factors reasonably...” [cites
omitted] Id at 336.
RULING
It appears the Trial Court limited its analysis to Swan in deciding it had no discretion to
grant a dismissal with prejudice. It was not the intention of this Court to so severely limit the
Trial Court’s discretion that it would appear that we would be substituting our judgments for the
Trial Judge’s judgment in such day-to-day decisions. Swan must be read in its context. That is,
the Trial Judge made some prior rulings on potential evidence, and, when the prosecutor moved
to dismiss, the Trial Judge granted the dismissal with prejudice sua sponte, and without an
analysis of any factors available in Stensgar, Jack, or even the federal factors found in Taylor,
supra. This Court could have been clearer in Swan that it recognizes judicial discretion to grant
dismissals with prejudice before an adjudication of the merits in certain circumstances. That is
the rule of law when reading all of our cases together. We so recognize it in this opinion.
Based on the rule of law and a review of the record, we find that the Appellant has not
made a prima facie showing of an appealable issue, and the Appeal should be denied.
ORDER
Based on the reasoning herein we find that (1) the Trial Court has discretion, in
appropriate circumstances and with reasoned analysis, to grant motions to dismiss with prejudice;
and (2) this Appeal should be denied for lack of an appealable issue.
It is SO ORDERED.

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PAGE DELIBERATELY LEFT BLANK

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In Re Welfare of A. T. and J. T., Minors.
Roberta WEBER, Appellant,
vs.
CHILDREN & FAMILY SERVICES, A. T. & J. T, and Richard THOMAS,
Appellees.
Case No. AP05-007, 4 CTCR 23
8 CCAR 32
[Leoni Reinbold, Spokesperson for Appellant-Mother, Roberta Weber.
Jonnie Bray, Office of Prosecuting Attorney, spokesperson for Appellee-Children & Family Services.
Mike Larsen, Office of Public Defender, spokesperson for Appellee-Father, Richard Thomas.
Lane Throssell, Legal Services, spokesperson for Appellee-Minors.
Juvenile Case Number MI-2005-25018]

Hearing held August 19, 2005. Decided September 8, 2005.
Before Chief Justice Anita Dupris and Justice Dennis L. Nelson. Justice Conrad Pascal was not
present.
Dupris, CJ
PROCEDURAL SUMMARY OF APPEAL
On June 15, 2005 we held an Initial Hearing and found the record incomplete. The
Order Granting Petition for Minor-In-Need-Of-Care (MINOC) entered by the Trial Court on May
16, 2005 and signed June 3, 2005 did not include Findings of Fact specifically supporting the
Conclusion of Law that the children were Minors-In-Need-Of-Care. We stayed the Initial
Hearing and directed the Trial Court to file more specific findings. This was not done.11 On
August 19, 2005, we ordered the Order Granting Petition for MINOC be vacated and remanded
for the reasons stated below.
ISSUE
Is the Trial Court’s Findings of Fact sufficient to conclude, as a
matter of law, that the children herein are
Minors-In-Need-Of-Care?
DISCUSSION
The MINOC Petition was filed in this case on April 29, 2005. The Petition alleged the
11

It appears the Trial Judge did not get the order with these directions until one week ago; however, there is nothing in our files from the Trial
Court asking for more time.

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following facts regarding the alleged MINOC status of the children:
(1)

The children were taken into temporary custody on April 27, 2005.

(2)

When the officer contacted the father, the father smelled of intoxicants.

(3)

The father made a self-report to the officer of his drinking as well as his sister
and mother drinking. He also indicated that he drank alcohol while the children
both played and slept.

(4)

The father was arrested for DUI.... while his children were in the car with him.

(5)

the father is being investigated for inappropriate sexual contact with Sheree
Thomas.12

(6)

CFS believes the father was granted custody of the minors pursuant to a Yakima
(sic) Tribal Court order.

There are no facts alleged in the Petition regarding the mother, Roberta Weber’s ability to
care for the children. After an Adjudicatory Hearing13 on May 16, 2005, the Court found the
children herein were Minors-In-Need-Of-Care and scheduled a Disposition Hearing.
The only facts in the Trial Court’s Order Granting Petition for Minor in Need of Care
regarding the mother are (1) that Roberta Weber did not follow through with the Court orders set
out in those custody cases, and (2) that she did not have contact with the children since July
2003.
There are no findings regarding what actions the father took or failed to take which would
make him an unfit parent. The Findings of Fact regarding the father are that (1) the father has
stipulated to the petition for MINOC, however, not the facts contained therein; and (2) the Court
took judicial notice of the civil cases giving the father custody.14
CTC §5-2-261 Adjudicatory Hearing—Proof, states that the allegations of a MINOC
Petition must be proved by clear, cogent and convincing evidence. The Trial Court’s Findings
of Fact, Conclusions of Law, and Order granting the MINOC Petition are insufficient.
There are no specific Findings of Facts in the Order regarding what actions either parent
took or failed to take that proves the “minors have not been or cannot be provided with adequate
12

The age and relationship of this person is not alleged; she is not a child listed in the Petition.

13

CTC §5-2-259 Adjudicatory Hearing
The Juvenile Court shall conduct the adjudicatory hearing for the sole purpose of determining whether the minor is a minor-in-need-of care. The
hearing shall be private and closed.
14

The Order does not reflect any part of the foreign orders nor their relevant sections in the findings or conclusions; it only gives a conclusory
statement that such orders exist and are judicially recognized by the Trial Court.

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food, clothing, shelter, medical care, education or supervision by their parents, guardians or
custodians as necessary for their health or well-being.” CTC§5-2-30 Definitions, (l)
Minor-in-need-of-care.
The Trial Court concluded the “minor’s [sic] father is not available to care for them,” but
there are no Findings of Facts to support this conclusion.
There are no Conclusions of Law regarding the mother, Roberta Weber’s fitness as a
parent. On May 27, 2005 a Disposition Hearing was held.15 The Trial Court entered the Order
of Disposition Hearing placing the children with the mother, Roberta Weber, upon the
condition she have a “clean urinalysis” before she received custody of the children. The Court
also set several conditions for Roberta Weber to accomplish, including obtaining a mental health
evaluation.
The father, Richard Thomas, was also ordered to do several rehabilitative things before
the next hearing.
On June 2, 2005, Appellee Child and Family Services requested a hearing to modify the
Dispositional placement of the minors with the mother, alleging she tested positive for drugs.
The mother filed her timely appeal herein alleging the Trial Court did not have a basis for finding
the children Minors-In-Need-Of-Care regarding the mother. We agree.
STANDARD OF REVIEW
The Court of Appeals engages in de novo review of assignments of errors which involve
issues of law. In Re The Welfare of R.S.P.V., 3 CTCR 07, 26 ILR 6039, 4 CCAR 68, (1998).
The issues herein are issues of law. The issue is whether the Trial Court had been shown by
clear, cogent and convincing evidence that both parents herein could or would not provide their
children “with adequate food, clothing, shelter, medical care, education or supervision.”
Regarding the mother-Appellant a more basic issue exists: were her fundamental due
process rights violated? From a review of the record we hold they were. The statutorily-required
pleading, i.e. Petition for MINOC, does not give the Appellant notice of what actions or
omissions, if any, she has taken regarding the children which constitute a finding of MINOC. It is
fundamental to due process that a person have notice of alleged wrong-doing, an opportunity to
be heard, and an opportunity to present evidence in one’s own behalf. The Appellant could not
respond to a Petition that does not set out specifically what she was to have done or failed to do.
15

CTC §5-2-262, Disposition Hearing, states that at the disposition hearing the Court “shall hear evidence on the question of proper
disposition.”

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For this reason alone the finding of MINOC as it applies to her should be set aside.
What concerns us, too, is that there is not enough in the written Trial Court record for us
to review de novo whether the Tribes proved its case at the Adjudicatory Hearing by clear,
cogent, and convincing evidence. By reviewing the Findings of Fact and Conclusions of Law in
the Order of the Adjudicatory Hearing we should be able to make a direct correlation between the
allegations in the Petition and the proof of said allegations at the Adjudicatory Hearing.
We cannot do this in the Orders herein. For example, the Petition alleges the father
abused alcohol while his minor children were with him, including a time when he was
subsequently arrested for Driving Under the Influence of Alcohol; and that he was being
investigated for inappropriate sexual contact with another person (whose age and relationship are
not set out in the Petition). There are no allegations in the Petition whatsoever regarding the
mother’s fitness.
The Findings acknowledge the father doesn’t agree with the facts alleged in the Petition
for MINOC. This is not clear, cogent nor convincing evidence of the facts alleged regarding the
father’s behavior herein; it only proves that Mr. Thomas disagrees with the allegations. The
Findings go into more detail of the mother’s situation, but these findings have no direct
correlation with allegations in the Petition.
A finding of fact must state a fact proved at the Trial. “The father abused alcohol while in
the presence of his children” is a sample of a finding of fact. A conclusion of law states a legal
conclusion regarding the fact that has been found. For instance, an example of a conclusion of
law regarding the sample finding of fact in this paragraph would be: “it has been shown by clear,
cogent and convincing evidence that the father cannot provide adequate supervision to the
minors.”
We are not unaware of the sensitive nature of cases such as these. We understand that
the underlying intentions of all involved are for the best interests of the children. The Courts
should always be conscientious of the impact made on a family when there is official
intervention.
When the intervention is sought, it is the Trial Court’s duty to (1) make a complete record
of why the intrusion is made; and (2) make a complete record of why the disposition, that is, the
solutions to the problems identified at the Adjudicatory Hearing, are necessary, as supported by
the record.
We hold that the Trial Court (1) failed to give due process to the Appellant, Roberta
Weber; and (2) failed to make a complete, reviewable record of the findings and conclusions
establishing the Minor-In-Need-Of-Care status of the minors herein. We find that the Order of
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Adjudicatory Hearing dated May 16, 2005 and signed June 3, 2005 should be VACATED and
this matter REMANDED for action consistent with this Opinion.
IT IS SO ORDERED.
In Re the Welfare of S. S.
Irene SMITH, Appellant,
vs.
CCT Children & Family Services, John SPRINGER, S. S.
Case No. AP05-013, 4 CTCR 24
8 CCAR 36
[Leone Reinbold for Appellant/mother, Irene Smith.
Evelyn Van Brunt for CCT Children & Family Serivces.
Lane Throssell for the minor, S. S.
Mike Larsen for the father, John Springer.
Juvenile Court Case No. MI-2005-25021]

Hearing held November 18, 2005. Decided November 21, 2005.
Before Chief Justice Anita Dupris, Justice Howard E. Stewart, and Justice Gary Bass
Dupris, CJ
This matter came before the Court of Appeals for an Initial Hearing on November 18,
2005. Appellant has appealed the Trial Court’s denial of her Motion to Dismiss the Disposition
Hearing. The Juvenile Court held it was not in the best interests of the child to dismiss the case.
Appellant asserts it should be dismissed in that she received inadequate notice of the Disposition
Hearing.
After reviewing the record below, we find that the Disposition Hearing on August 17,
2005 was not recorded. In George v. George, 1 CCAR 52 (1991), we held that we could not
make an adequate ruling on Appeal when there is an inadequate Trial record. The recourse is to
remand the matter for a new hearing. Appellant asked that we consider the Appeal without the
oral record in that she is appealing lack of adequate notice for the Disposition Hearing, which can
be found from reviewing the written record.
In In Re The Welfare of E.A., J.A., J.A., 3 CCAR 64 (1996) we held that the Juvenile
Court erred in granting a dismissal without first making findings and conclusions that the
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dismissal was in the best interests of the minors. We found it is not sufficient to grant a dismissal
of a dependency case merely because of an alleged procedural error.
We now hold there must be a showing of prejudice to the moving party, a parent in this
instance, that outweighs the best interests of the child. This child had been adjudicated a
Minor-In-Need-Of-Care already16. This ruling is not being challenged in the Appeal herein.
Although the written record shows the Juvenile Court denied Appellant’s Motion to
Dismiss as not in the best interests of the child, the Order does not make specific findings for this
conclusion of law. We would need to review the oral record of the proceeding in order to
determine if there is sufficient evidence on the record to support this conclusion of law. Since
there is no oral record, it must be remanded to make an oral record.
For the reasons stated above we VACATE the Order of Disposition entered below, and
REMAND for another hearing, at which the Juvenile Court is directed to make either written or
oral findings regarding the denial of Appellant’s Motion to Dismiss with regard to the best
interests of the child.
IT IS SO ORDERED.

16

It should be noted that from a review of the record it appears that the disposition hearing was heard in front of Judge Abbott, yet the findings
and order from the hearing were signed by Judge Aycock. In In Re the Welfare of A.S., 3 CCAR 10 (1995) we held that a Disposition Order
signed by a judge who did not preside over the hearing was invalid, and the matter was remanded for a correctly entered order. This issue was
not raised herein, but we would still encourage the Juvenile Court to correct the affected orders herein in line with In Re A.S., supra.

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FINLEY, Tobias, Appellant,
v.
CTSC, TILLMAN & ANDREWS. Appellants.
Case No. AP05-008, 4 CTCR 25
8 CCAR 38
[R. John Sloan Jr., appearing for Appellant
Bruce Didesch, appearing for Appellees
Trial Court case number AD-2004-25004]

Argued November 18, 2005. Decided March 6, 2006.
Before Chief Justice Anita Dupris, Justice Dave Bonga and Justice Dennis L. Nelson.
Appeal of order denying appeal of termination of employment. The denial was based on
the administrative law court’s finding, following a preliminary hearing, that although Finley was
a seasonal employee receiving benefits associated with employment exceeding ninety days, he
was nevertheless a probationary employee. Senior staff interpreted company policy to not allow
probationary employees the right to appeal termination of their employment. We find Finley
was a seasonal employee having a reasonable expectation of continued employment and hold he
was entitled to appeal. Reversed and remanded.
Nelson, J., for the panel.
INTRODUCTION
The relevant facts in this matter are not challenged. Tobias Finley is an enrolled member
of the Colville Confederated Tribes first employed by Colville Tribal Services Corporation
(CTSC) on April 18, 2003. He was employed on several projects in different capacities working
as a laborer, cement finisher, and foreman/carpenter.

Each time Finley was assigned to a

project requiring a different skill his employment classification. During this time of continuous
employment he received good performance evaluations and no disciplinary action was taken
against him. He was temporarily laid off on October 22, 2004 and recalled by CTSC for ten
days in January 2005, laid off again, and then re-hired on January 27. He was terminated by
CTSC on April 20 for allegedly violating company policies. CTSC considered Finley a seasonal
employee at the time he was terminated.
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Finley was informed by CTSC’s Chief Executive Officer, Paul Tillman, and by its
Human Resources Director, Lois Pakootas, of his right to appeal his termination to the
Administrative Law Court. Tillman testified at an appeal hearing that Finley, although a
seasonal employee, was in a probationary status thus not eligible to appeal his termination.
The Administrative Law Court found Finley to be a seasonal employee on probationary
status. Because of his probationary status that the Court held he had no right to appeal his
termination.
ISSUE ON APPEAL
The Notice of Appeal states the issue on appeal is whether Finley has the right to appeal
the termination of his employment to the tribal Administrative Court.

Re-phrased, we view the

issue as whether the administrative law court denied Finley due process of law by denying him a
hearing regarding the termination of his employment.
STANDARD OF REVIEW
This matter concerns issues of law and fact. Combined questions of law and fact are
reviewed under the non-deferential de novo standard when the administration of justice favors
the Court of Appeals. “Clearly erroneous” review is used in such questions when the
administration of justice favors the Trial Court. CTC v. Naff, 2 CCAR 50, 2 CTCR 08, 22 ILR
6032 (1995). In this instance, the questions herein hinge on the reliance on Colville Tribal
Enterprises Corporation Employee Policy Manual (Manual) as the guiding law for the parties.
We find that the administration of justice favors this Court in that a critical question is whether
the Appellant should go through another “initial review” period after becoming a seasonal
employee, which is more a question of law.
DISCUSSION
The Colville Tribal Civil Rights Act, CTC 1-5-2(h) states in pertinent part: “The
Confederated Tribes of the Colville Reservation in exercising powers of self government shall
not... (h) deny to any person within its jurisdiction the equal protection of its laws or deprive any
person of liberty or property without due process of law.” This is nearly identical with the
Indian Civil Rights Act.17
17

25 U.S.C. 1302(8) states: “No Indian Tribe exercising powers of self government shall ...(8) deny to any person within its jurisdiction the
equal protection of its laws or deprive any person of liberty or property without due process of law.”

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Finley contends the termination of his employment was an unlawful taking of his property
by the Tribes without due process of law.

It is well established that a reasonable expectation of

continued employment may be a property interest and thus entitled to the protection of due
process procedures. See Roth v. Board of Regents, 408 U.S. 564 (1972), and its progeny.

We

must first determine whether Finley has an interest protected by due process of law and, if so,
what process is due. LaCourse v. CCT, 1 CCAR 2, 5, 1 CTCR 5 (1982) (“Only the Tribe can
elucidate the meaning of these generic concepts [of due process and equal protection]...”)

Bliek

th

v. Palmer, 102 F.2d 1472 (8 Cir. 1997).
The right to continued expectation of employment is secured by “existing rules or
understandings. A person’s interest in a benefit is a ‘property’ interest for due process
purposes if there are such rules or mutually explicit understandings that support (a) claim of
entitlement to the benefit and that may (be) invoke(d) at hearing.” Perry v. Sinderman, 408 U.S.
593, 601 (1972). We adopt this rule of law as guidance in this matter.
A. Employment status
Whether Finley has a protected interest in his continued employment is determined by his
employment status at the time of his termination and the “rules and mutually explicit
understandings” which may bolster his claim. The employees of CTSC are categorized as either
full time, part time, temporary, on call, contract, emergency hire, or seasonal.
The two employment categories germane to this matter are “temporary” and “seasonal.”
As noted, a temporary employee is one who is hired for less than ninety days. Should the period
of employment exceed ninety days, the employee automatically moves into the seasonal
category. Temporary employees accrue no benefits and, by definition, have no expectation of
continued employment. Seasonal employees accrue benefits such as health and disability
insurance, participation in 401(k) retirement plans, and paid leave. Finley, a seasonal employee,
was employed continuously by CTEC for over eighteen months and subsequently laid off and
re-hired.
All employees, no matter how classified, are either exempt (ineligible for overtime
compensation) or non-exempt (eligible for overtime compensation and whose duties meet criteria
set by the Tribes or the federal wage and hour laws). It is because of the federal wage and hour
laws that an employee’s transfer to a new job classification is memorialized by a payroll
information/job change sheet.
CTSC contends Finley lost his status as a seasonal employee each time he transferred to a
new wage classification. It further argues he began each new wage classification as a temporary
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employee in a probationary status.

Despite this, and despite later testifying that newly hired

temporary employees do not have the right to appeal termination, both Tillman and Pakootas
informed Finley he had the right to appeal.
Tillman testified that all employees have the right to appeal disciplinary actions,
including termination. According to Tillman, however, probationary employees, while having
the right to appeal “in house” do not have the right to appeal to the Administrative Law Court.
Ms. Pakootas interpreted the Policy and Procedures Manual in the same manner as Tillman.
She explained she had written a letter to Finley stating he had the right to appeal to the
Administrative Law Court, but that she had only done so because she thought the matter would
be resolved before going that far.
Following the preliminary hearing, the Administrative Law Court, held that Finley was a
seasonal employee at the time of his termination, but that he did not have the right to appeal
because he was terminated during the probationary period following his being recalled on
January 27, 2005.
B. Expectation of continued employment
We find it significant that seasonal employees transferring into another job classification
do not lose the benefits accrued following their initial probationary period. Finley had worked
continuously for eighteen months, was laid off for two months, recalled and laid off again, and
recalled for the last time in on January 27, 2005. His benefits immediately began to accrue each
time he was recalled.

That is, he was not required to complete the probationary period before

his benefits began to accrue. CTSC was unable to explain how or why Finley would continue to
receive benefits such as FTO, 401(k) contributions, and health insurance, but would lose the right
to appeal his termination during the probationary period following his recall.
Equally significant, the Manual provides that should an employee believe he has been
disciplined or terminated unfairly, he may appeal the adverse action to the General Manager of
the enterprise. Should the employee disagree with the General Manager’s decision, he may
appeal further to the Corporate Director of Human Resources. Should that decision be adverse,
the employee may make a final appeal to the Colville Tribal Administrative Court. See
Manual, Chapter XI(C)(3) - Discipline: Suspensions/Terminations/Appeals.
We conclude from Finley’s record of employment that he had a reasonable expectation of
continued employment - a protected property right. This is evidenced by the duration of his
continuous employment, the timely recalls after lay offs, his increased responsibility on some
projects, his good performance evaluations, the lack of disciplinary action, and the accrual of
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benefits.
We further conclude, as did the trial court, that the Manual is confusing and ambiguous.
Statutory construction principles mandate that ambiguous documents be construed against the
drafter. Any ambiguity must favor Finley. Furthermore, the burden is on the employer, not the
employee to make clear to the employee what his status and what his rights are. See, Schmolke v.
Ho-Chunk Casino, 29 ILR 6012 (2001).
Section XI of the Manual does not deny a seasonal, non-probationary, employee the right
to an appeal. The Administrative Law Court erred in finding that Section VI.J.1 of the Manual
states “all employees” have an initial review period; it states all “new employees” have an initial
review period. Finley is not a new employee. Finley has a right to hearing on his appeal whether
his termination was warranted.
CONCLUSION
Accordingly, the Order Denying Appeal is REVERSED and the case is REMANDED for a
hearing on the merits of Finley’s termination from employment with CTSC.
IT IS SO ORDERED.

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Steve MARCHAND, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP05-016, 4 CTCR 26
8 CCAR 43
[Elizabeth Fry, spokesperson for Appellant.
Joni Bray, Office of Prosecutor, spokesperson for Appellee.
Trial Court Case Number CR-2005-28170]

Argued March 17, 2006. Decided April 26, 2006.
Before Chief Justice Anita Dupris, Justice Gary Bass and Justice Howard E. Stewart.
Dupris, CJ
SUMMARY
The Defendant, Steve Marchand (Marchand) is charged by Criminal Complaint for
Battery, Assault and Reckless Endangerment, with a Domestic Violence enhancement, in
violation of CTC §§3-1-4, 3-1-3, 3-1-11, 5-5-54, respectively. The parties initially had a plea
agreement, not yet accepted by the Court, but accepted by both parties. The Prosecutor notified
Marchand and his Spokesman that she learned new information relevant to the Marchand’s
actions, including (1) a statement by a witness in a dependency case that Marchand’s children
were traumatized by his actions; and (2) that the victim objected to the plea agreement terms.
With this “new” information the Prosecutor withdrew her plea agreement offer. Marchand sought
to have the agreement specifically enforced at the Change Of Plea hearing on December 2, 2005.
The Trial Court found, on record, that the Prosecutor’s withdrawal of the agreement was proper
because of new information. Marchand asked for an Elder’s Panel to discuss whether the
Prosecutor should be held to the agreement based on a custom of keeping one’s word. The Court
denied the request, finding that an Elder’s Panel was not necessary to decide if there was a
custom or tradition regarding keeping one’s word.
Marchand filed the Interlocutory Appeal herein on December 9, 2005, pursuant to
COACR 6-A18 and COACR 7-A(b),19 specifically raising as issues (1) the denial of the Elder’s
18

6-A. NOTICE OF INTERLOCUTORY APPEAL. (a) A party shall initiate an interlocutory appeal by filing a written Notice of Interlocutory
Appeal (NOIA) with the Court of Appeals within five (5) days from the entry of the written order of the Trial Court. The opposing party has

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Panel, and (2) denial of his request for specific performance of the plea offer which was
withdrawn. The Prosecutor did not file an objection to the Appeal. The Judge submitted a written
order on her ruling On December 21, 2005, after the Interlocutory Appeal was granted.20 For
reasons stated below, we deny the Appeal and Remand the case to the Trial Court.
ISSUES
(1) Did the Trial Court err in denying an Elder’s Panel to discuss whether the Prosecutor
is a tribal leader who should be held to her word? and
(2) When may the Prosecutor withdraw a plea agreement after it has been accepted by a
defendant?
STANDARD OF REVIEW
The issues raised are issues of law. We review de novo. Colville Confederated Tribes vs.
Naff,

2 CCAR, 2 CTCR 08, 22 ILR 6032(1995); Wiley, et al v. Colville Confederated Tribes,

2 CCAR 60, 2 CTCR 09, 22 ILR 6059,(1995); Palmer v. Millard, et al, 3 CCAR 27, 2 CTCR
14, 23 ILR 6094 (1996) (Because the Tribal Court dismissed the case below as a matter of law,
we review the matter de novo.);

Pouley v. CCT, 4 CCAR 38, 2 CTCR 39, 25 ILR 6024

(1997) (The Appellate Court engages in de novo review of assignments or errors which involve
issues of law); In Re The Welfare of R.S.P.V., 4 CCAR 68, 3 CTCR 07, 26 ILR 6039 (1998).
De novo review means we look at everything the Trial Judge had to review when she
made her decision, and not at any new information. The test is whether there a reasonable basis
for the Judge’s ruling, based on the facts and law she before her and not whether we have held
differently under the same circumstances.
ELDER’S PANEL
Marchand recognizes that in its December 21, 2005 Order, the Trial Court did make a
five (5) days after receipt of the NOIA in which to file a response with the COA on whether they oppose or agree with the interlocutory appeal.
Failure to file this statement may cause the NOIA to be granted by the COA.
19

7-A. GROUNDS FOR INTERLOCUTORY APPEAL. (b) The issue presented involves a controlling issue of law as to which there is
substantial ground for difference of opinion and that an intermediate appeal from the decision may materially advance the ultimate termination
of the litigation...
20

Marchand asked the Judge for a written Order on her ruling, but the Trial Judge submitted one only after directed to do so by this Court, after
the Interlocutory Appeal was granted. The Interlocutory Appeal may not have been granted in the first place if we had the Trial Court’s Order
when we first reviewed the case. It is important for the Trial Court to finalize all substantive rulings in writing in order to preserve judicial
economy in both Courts.

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finding of tradition regarding acting honorably and with respect. The Trial Court held:
“It is common knowledge and an accepted tribal traditional cultural value
and belief that one is expected to honor his word. It is one of the many
basic teachings and beliefs - central to who we are as Indian people - that
when we speak, we speak the truth and we honor our word - our word is
our honor. Core values shared by tribal people bind us together as a people
and define who we are. These basic values and beliefs include, but are not
limited to: a close relationship with the Creator; a respect and reverence
for all He has created; honesty; integrity; personal accountability;
closeness and love of family and community; humility; and a strong sense
of sharing, caring, and cooperation. As Indian people, we shouldn’t need
an Elders’ Panel to tell us that those are Colville tribal customs and
traditions. These teachings and beliefs should be so deeply imbedded in us
and so central to who we are that there is no question that tribal custom
and tradition require a person to keep their [sic] word.” Order from
Change of Plea Hearing Denying Request for Elders Panel, (Order)
December 21, 2005 at pp 2-3.
Marchand asks us to allow him to ask an Elder’s Panel to extend this tradition to include
a finding that the Prosecutor is like a traditional “chief,” and as such can never withdraw a plea
proposal in that tribal “chiefs” did not go back on their words. In Smith v. CCT, 4 CCAR 58
(1998), we held a request for an Elder’s Panel cannot be a “fishing expedition.” The party
asking for it has the burden of proof to show, through extrinsic evidence, that there is a genuine
custom or tradition question for the Panel to discuss. Id. at 61. In this case we have crossed into
the “fishing expedition” prohibited in Smith.
Marchand argues it is required of a tribal leader (“chief”) to follow through on what she
has offered. He offers excerpts from anthropological data to support this assertion. The
information offered discusses the traits of a good leader, and the role of the leader in guiding his
people. It discusses the pacifist traits of the San Poils and the Nespelems. It does not discuss a
person like the Prosecutor, so it does not support an assertion that a prosecutor-type person could
have existed in our past.
Marchand argues the Prosecutor is like a “whipping man” and “chief” combined. By
asserting it without a further showing that the Prosecutor’s position would come from such
roots is the fishing expedition. Marchand hopes the Elder’s Panel would find the modern day
Prosecutor is such a leader. It is not the role of an Elder’s to decide key facts in a case. It is the
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role of the Panel to give guidance on what is a custom or tradition (our primary law) when the
fact-finder, i.e. the Trial Judge, is unsure what such a custom or tradition would be in the given
circumstances. Marchand’s arguments for an Elder’s Panel are too tenuous to meet the Smith
test.
Reasonable judges may differ. The Trial Judge’s Order states adequate findings, based on
limited record before it, for denying the Elder’s Panel. The Judge’s decision is not an abuse of
her discretion, nor is it clearly erroneous. For these reasons Marchand has not met his burden.
STANDARDS FOR WITHDRAWING PLEA PROPOSAL
Our Court recognizes broad prosecutorial discretion. See, Mellon v. CCT, 8 CCAR 01
21

(2005).

The Prosecutor’s Office, in drafting plea proposals, has a policy of following

Washington State standards in deciding when to withdraw such proposals. Notice of this policy
is embodied on the form used by the Prosecutor’s Office, stating State v. Bogart, 57 Wn.App.
353 (1990) applies. Bogart states, citing State v. Wheeler, 95 Wn.2d 799, 850 (1981): “Absent a
guilty plea or some other detrimental reliance by the defendant, the prosecutor may revoke any
plea proposal.” Id. at p 356.
Marchand does not dispute the controlling rule of law of broad prosecutorial discretion
nor the current Prosecutor’s Office policy of following State law. It is Marchand’s assertion that
neither the federal nor the State standard need apply if an Elder’s Panel were to find that the
Prosecutor, as a “Chief,” were required to keep her word, no matter the circumstances. The
custom or tradition would override the current standards followed by the Prosecutor.
The question of searching for an applicable custom or tradition has been already been
addressed, supra. The real question remaining is, are the standards the Prosecutor applies
when withdrawing an offered plea proposal, as recognized by the Trial Court, adequate as a
matter of law? This is a question of first impression for our Court. Based on the reasoning
below we hold that the standards are adequate as a matter of law.
Even though the Trial Judge stated in her Order that she would not address the issue of
when a Prosecutor can withdraw an plea proposal issue she did enter findings she considered in
analyzing the prosecutor’s withdrawal of the guilty plea:
(1) “The Tribal Prosecutor based her initial decision to enter into the

21

Both parties discussed Mellon in the context of allowing the Prosecutor to withdraw plea proposals. This is not what Mellon recognized.
Mellon, relying on Wyate v. U.S., 470 US 598 (1985) for guidance, stands for the proposition that the Prosecutor’s has broad discretion to decide
who to prosecute. Id at 10. In Mellon the Prosecutor withdrew an offered deferred prosecution, not a proposed plea agreement.

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Agreement on incomplete or inaccurate information available to her at the
time...”;
(2) “As soon as the Prosecutor became aware of new information/allegations,
and the fact that the alleged victim was opposed to the Agreement, she advised
the Defendant that she was withdrawing her offer.”; and
(3) “The Defendant did not sign the guilty plea. The Court did not accept the
guilty plea. The Plea Bargain Agreement was not offered to the Court,
accepted by the Court, nor entered by the Court.” Order p 2.
We first look to the standards used by the Prosecutor’s Office. As a matter of policy, it
has adopted a State standard. That is, the plea proposal is subject to withdrawal up to the time the
Court has accepted a defendant’s guilty plea, or the defendant has relied on the proposal to his
detriment. Bogart at 356.22
This standard comports with the federal standard as found in Mabry v. Johnson, 467 US
504 (1984) in which the Supreme Court held that the Prosecutor has broad discretion to withdraw
a plea proposal up to the time the Court has accepted the guilty plea of the defendant. The
Supreme Court found no due process violations (“The Due Process Clause is not a code of ethics
for prosecutors; its concern is with the manner in which persons are deprived of their liberty.
Error! Hyperlink reference not valid.Here respondent was not deprived of his liberty in any
fundamentally unfair way.” id at 511). The Court went on to say that the effect of not enforcing
guilty plea left the defendant in same situation he was before the plea was offered: he is still
presumed innocent unless proven otherwise; he still has due process rights to a fair trial; he still
does not have to not speak against himself, and so on. The Court found no substantial prejudicial
effect to the defendant by not requiring Prosecutor to stand by the agreement. Id.
The Trial Judge’s assessment follows the general rules announced in both Bogart and
Mabry by accepting the unilateral action of the prosecutor to withdraw the plea before the
defendant actually entered it on record and had it accepted by the Court on record. In this case,
Marchand had notice that the Prosecutor could withdraw the plea proposal unilaterally. As stated
before, our standard of review is not that the answer must be totally right; it must be
supportable by the record.
This Court recognizes prosecutorial discretion. (Mellon). Our criminal court system is

22

Marchand asserts he detrimentally relied on the plea proposal; there are no facts of such a reliance in the record that would support an
interlocutory review of the issue. This argument must first be developed before the Trial Court before it can have a final review in this Court. It
is not a subject for an interlocutory appeal.

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based largely on the westernized system (e.g. Arraignments, pleas entered, presumption of
innocence, jury trials). It is far from a customary decision-making role as found in our history.
Marchand has not met his burden in showing that a tradition or custom should be considered in
this arena. Quite the contrary, if the Prosecutor’s Office is deprived of its discretion to withdraw
plea offers when the circumstances dictate such a decision, it would result in a more burdened
judicial system. The safety net for defendant’s who should have the agreements enforced is
already defined in the standards adopted by the Prosecutor’s Office under Bogart, in following
Wheeler: (1) those defendants who have entered a guilty plea in Court; or (2)who have
detrimentally relied on the offer. Neither of these circumstances have been shown in this case.
HOLDING AND ORDER
Based on foregoing, we hold (1) the Interlocutory Appeal request for an Elder’s Panel to
discuss whether the Prosecutor is a “tribal leader” or “chief” is DENIED; and (2) there is no
abuse of discretion by the Trial Court in not requiring the Prosecutor to reinstate the plea
proposal. This Interlocutory shall be DISMISSED and the matter is REMANDED to the Trial
Court for further action consistent with this Opinion.
It is SO ORDERED.

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Lisa A. LOUIE, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case Number AP04-015, 4 CTCR 27
8 CCAR 49
[Leoni Reinbold for Appellant.
Joni Bray, Office of Prosecuting Attorney, for Appellee.
Trial Court Case Number CR-MD-2002-25132]

Before Chief Justice Anita Dupris, Justice Earl L. McGeoghegan, and Justice Howard E. Stewart
Dupris, CJ
SUMMARY OF TRIAL COURT PROCEEDINGS
Appellant, Lisa Louie (Louie), was charged criminally with one count of Abduction in
violation of Colville Tribal Law and Order Code §3-1-1 (Code).23 The charge arose from an
allegation that Louie violated a civil custody order dated April 29, 2002 in which the Tribal
Court gave temporary custody of Louie’s son to his father, Mathew Pakootas (Pakootas). The
civil court records indicate a series of custody orders for Louie and Pakootas regarding their son,
as early as December, 2001. Three different trial judges handled the civil case since it was
opened in 2001, including the trial judge who conducted the criminal trial.24
Louie asked to be allowed to present a defense of necessity, alleging her minor son was
being abused in Pakootas’ home and she removed him in order to prevent further abuse. She
argued she had no other legal alternative. Louie also alleged at her trial that she did not have the
requisite intent to commit the crime of Abduction because she did not have notice of the hearing
on April 29, 2002. In a civil case, the Trial Court entered an order on April 29, 2002 which
23

“Any person who shall willfully take away or detain another person against his will so as to interfere substantially with his liberty, or
knowingly and without the consent of the lawful custodian, shall take away, entice, or detain a child from the custody of his lawful custodian
when he lacks lawful permission or authority to do so, shall be guilty of Abduction. Abduction is a Class A offense.”
24

Chief Judge Aycock entered an order on record on December 13, 2001 (signed on February 25, 2002) giving custody to Pakootas and
visitation to Louie. On January 22, 2002 Judge Aycock entered a temporary custody order again giving Pakootas custody and Louie visitation
rights. Judge Gabourie entered an order on record on February 26, 2002 giving Louie and Pakootas joint custody and shared physical custody
with detailed visitation for both parents. On April 29, 2002 Judge Gabourie entered an order giving temporary custody to Pakootas. Judge
Gabourie entered an order on record on May 28, 2002 (signed on June 20, 2002) giving custody to Pakootas and no visitation to Louie. Judge
Abbott entered an order on record on March 3, 2003 giving Pakootas custody and supervised visitation to Louie. Chief Judge Aycock entered a
bail hearing order restraining Louie from contacting Pakootas or their son pending the trial on the Abduction charge. On May 28, 2004 Judge
Abbott granted a temporary restraining order against Louie contacting either Pakootas or their son.

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changed a custody order for the child in question. The initial orders gave both Louie and
Pakootas joint custody of their son. The Court entered a temporary order on April 29, 2002
giving sole custody of the child to Pakootas. The order was entered without Louie being present
at the hearing.
The Court denied Louie’s request to present a defense of necessity. The Court also made
findings on record, but not in a written order, that Louie received adequate notice of the
temporary custody hearing of April 29, 2002, and, therefore, could not argue she did not have
such notice. The jury found Louie guilty of the charge of Abduction on August 12, 2004; she
was sentenced on October 1, 2004 and filed a timely appeal on the same day.
COURT OF APPEALS SUMMARY
The appellant raised the following issues on appeal:
1.

Did the Trial Court err by denying the defense of necessity?

2.

Did the Trial Court err by not allowing the appellant to present evidence
on alleged child abuse?

3.

Did the Trial Court err when the Judge made the comment “I will not allow
you to mislead the jury” during the appellant’s opening remarks?

4.

Did the Trial Court err in the process it used to select which juror
would be excused at the end of the trial as the alternate juror?

After reviewing the record, the arguments of the spokesmen, and the applicable law, we
found that the issues for our consideration can be stated in the following two:
1.

Did the Court err by not allowing Louie to present a defense of
necessity?25; and

2.

Were the remarks the Trial Judge made to Louie’s Spokesman, Daniel
Gargan, (Gargan) throughout the trial such that would constitute
reversible error?

We will not rule on the jury selection question. Louie did not present any legal authority on the
issue. All seven jurors selected were subject to both preemptive challenges and challenges for
cause by both parties. There is no showing of prejudice to Louie nor any showing of reversible
error on the record.
25

The issue of whether the appellant should have been allowed to argue she believed her child was being abused in his father’s home forms a
basis for the defense of necessity, and, therefore is not a separate issue.

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As set out in the opinion below, we find first that Louie should have been able to present
a defense of necessity to the jury. Secondly, we find that, upon a review of the whole record,
Louie has shown that the Judge evidenced a bias against her Spokesman, Gargan, to a point
which constitutes reversible error. We reverse and remand.
STANDARD OF REVIEW
The first issue, whether the Judge erred by denying Louie the right to argue the defense of
necessity is a question of law, and de novo review is required. Colville Confederated Tribes vs.
Naff, 2 CTCR 08, 22 ILR 6032 2 CCAR 50 (1995); Wiley, et al v. Colville Confederated Tribes,
2 CTCR 09, 22 ILR 6059, 2 CCAR 60 (1995); Palmer v. Millard, et al, 3 CCAR 27, 2 CTCR
14, 23 ILR 6094 (1996); Pouley v. CCT, 4 CCAR 38, 2 CTCR 39, 25 ILR 6024, (1997); In Re
The Welfare of R.S.P.V., 3 CTCR 07, 26 ILR 6039, 4 CCAR 68, (1998).
The issue Appellant raised regarding the Judge’s conduct towards Louie’s Spokesman,
Gargan, necessitates a review of the whether there are sufficient facts to support the allegation
of bias against Gargan to constitute reversible error. That is, was the conduct of the Judge
towards the Spokesman such that it created an appearance of impartiality, which could have
influenced the Jury? This is a mixed question of fact and law, which we could review either
under the clearly erroneous standard, or de novo. See, Naff, supra.
If administration of justice favors the Court of Appeals, we review de novo. If it favors
the Trial Court, we review under the clearly erroneous standard. Id.. In this instance the
administration of justice favors the Trial Court. The Trial Judge’s role in a jury trial is both
administrative and decision-making. The Judge must impanel a jury and make sure the jury
understands its responsibilities; rule on evidence and applicable laws; and generally ensure the
trial is conducted fairly in front of a jury.

He must made quick decisions throughout a jury trial,

without the convenience of time that is afforded the Court of Appeals’ Justices who review the
decisions made. We review the last issue under the clearly erroneous standard.
DISCUSSION
A. DEFENSE OF NECESSITY
Although the arguments of both parties in their briefs seem to rest on whether or not the
defense of necessity is allowable in the Colville Tribal Court, the true question is whether Louie
should have been able to argue it in this case. The Court recognized the defense of necessity by
accepting State v. Gallegos, 73 Wash. App. 664, 871 P.2d 621 (1994) as a guiding principle of
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the defense.

The test in Gallegos is not substantially different from the one Louie argues

should apply, i.e. that found in State v. Justesen, 121 Wash. App. 83, 86 P.3d 1259 (Div. 1,
2004).26

Both jurisdictions require the defendant to show she had a belief there was no other

alternative but to take the child. The Trial Court did not err in using the Gallegos standards as a
guideline.
The defense of necessity was addressed once before in this Court in CCT v. Naff, supra.
There the defendant was charged with a civil complaint for shooting elk on her property in
violation of the Tribes’ Fish and Wildlife Code. Naff argued the defense of necessity, stating
the elk were eating her cattle’s hay, which impacted her livelihood. She argued that the Fish and
Wildlife Department officers did not stop the elk from entering Naff’s property so she shot the
elk because she had no other alternative. Id. at pp52-54. This Court upheld the Trial Court’s
finding of necessity, finding “...the elk were an immediate threat... and the killing was done to
prevent severe and immediate threat to life and property of the defendant. The destruction of the
animals was done in direct response to the severe, immediate threat to life and property and that
the defendant took every reasonable step necessary to alleviate the severe immediate threat....”
Id. at p55.
Naff establishes the test for defense of necessity as one requiring (1) an immediate threat
to the defendant or his property; and (2) the act was done in direct response to, and to prevent the
severe and immediate threat; and

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Aconfederated_colville%3A7f90f5f9ebaf8ac7. Public record. Not legal advice.