R. L. and B. J., Minors/Appellants,

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Text

vs.

Colville Confederated Tribes Children and Family Services, Appellee.

Case Number AP99-004, 3 CTCR 39, 28 ILR 6203

6 CCAR 1

[Preston Van Camp, Legal Services Office, represented the Minors/Appellants.

Joseph Caldwell, Office of the Prosecuting Attorney, represented CFS/Appellee.

Stephen L. Palmberg, Attorney, represented the father.

Mother was not represented and did not appear at oral arguments.

James Edmonds, Office of Public Defender, appeared as amicus.

Bruce Didesch, U. S. Attorney’s Office, filed an amicus brief but did not appear at hearing.

Trial Court Case Number J97-16020, J97-16033]

Argued October 15, 1999. Decided October 6, 2001.

Before Chief Justice Dupris, Justice Bonga and Justice McGeoghegan

DUPRIS, Chief Justice, for the Panel

SUMMARY

On May 16, 1997, the above-named minors were found by the Colville Tribal Juvenile Court to

be Minors-in-need-of-care. Care, custody and control of the minors was given to the Colville Tribal

Children and Family Services (hereinafter CFS), with physical placement at the discretion of CFS.

Liberal visitation was granted to the parents.

On April 23, 1999, Judge Wynne entered an Order from the Juvenile Court which stated that

since CFS was granted custody of the minor children, possessed sovereign immunity from suit, and was

acting in loco parentis for the minor children, it did not require a Court order to access money from the

minor’s Individual Indian Moneys (IIM) accounts.

On April 28, 1999, the minors filed an Appeal alleging error of law excepted to at the time of

trial, that the verdict or decision is contrary to law, and that substantial justice has not been done. Three

specific issues were raised in this case: (1) May a minor’s trust money be withdrawn from his Individual

Indian Moneys Account without a Court Order? (2) Who has the primary duty of support for a minor who

is a Minor-In-Need-Of-Care by order of the Court? and (3) When a minor is found to be a Minor-InNeed-Of-Care, is it in the minor’s best interests to use the minor’s money for basic his needs, and if yes,

under what circumstances?

Briefs were ordered and filed, amicus briefs were invited and filed by the CCT Public Defender’s

Accounts held in trust by the Bureau of Indian Affairs pursuant to federal regulations found in 25 C.F.R.

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Office and the Office of Solicitor. Oral arguments were heard on October 15, 1999. Upon a review of the

law and facts herein we reverse and remand, finding a strong tribal policy prohibiting use of a minor’s

Individual Indian Moneys account for a dependent child in lieu of other resources. The Court finds further

not to address any other issues based on our ruling on the first.

DISCUSSION

I. MAY A COLVILLE MEMBER MINOR’S TRUST MONEY BE WITHDRAWN

FROM HIS ACCOUNT WITHOUT A COURT ORDER?

The Appellant argues that to allow Children and Family Services (hereinafter CFS) to remove

money from a minor’s account without a hearing and a right to challenge the removal is a violation of the

CFS argues the process of using a minor’s IIM moneys for a child who is a dependent of the

minor’s due process rights.

Court is protected by due process by the guidelines used by the Bureau of Indian Affairs’ Social Services

Department.

The Tribal Legal Office (TLO) argues there is no legal authority which would allow CFS to

remove the minor’s money, so there is no need of a Court order in the first place. These are the arguments

before the Court. This is an issue of first impression.

IIM moneys were being disbursed to social agencies when the minor was a dependent of the state courts.

The Colville Tribes (Tribes) took the position that a minor’s IIM money should not be used for the

The Colville Business Council (Council) first addressed this issue in 1970. It appears that minors’

minor’s support when he or she was a dependent of the Court. See, CCT Resolution 1970-387. The

Council found that such a disbursement was against the best interests of the minor. It asked the Bureau of

Indian Affairs to disallow such payments to the following agencies or individuals:

1. County or State Department of Public Assistance Offices.

2. Foster parents and foster homes.

The U.S. Attorney General’s Deputy A.G. (USAG), Mr. Didesch, expressed an interest to be invited to file an amicus because of the issues

touching on IIM accounts.

The father’s attorney argued on record that he supports CFS’ position, but he did not file a brief supporting his argument. The USAG argued

no court could determine independently whether, when, or for what purpose moneys can be disbursed from a minor’s IIM account, and only the

Bureau of Indian Affairs (BIA) can do this. This argument is non-responsive to the main issue. The sole authority of the BIA to regulate IIM

accounts is not at issue in this case.

“...the welfare of the child which in the initial instant is the responsibility of the given agency, foster home, guardian, foster parents or adoptive

paren[t]s AND certainly not the responsibility of the child to pay for their own individual care and welfare through their dividend or per capita

share made to them from tribal resources...” CCT Resolution 1970-387, paragraph 5.

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3. Institutional agencies for non compos mentis or other legal disability

agencies.

4. Legal guardians and adoptive parents.

5. Other agencies, departments and individuals which would deprive

the minor children of their dividend and per capita shares due them by

virtue of their membership in the Confederated Tribes of the Colville

Reservation, Washington. [emphasis added]

Subsequent Council Resolutions dealing with minors’ IIM accounts do not modify the strong

position of the Tribes in Resolution 1970-387. See, Resolution 1972-67 (creating an exception to

Resolution 1970-387 for tribal member adoptive parents); Resolution 1978-108 (allowing the release of

minors’ IIM moneys to non-tribal adoptive parents, under certain circumstances); and Resolution 1998-

330 (specifically dealing with a minors’ share of what is commonly referred to as the 181-D Claims

money, money received in settlement of the Tribes’ claim on the Grand Coulee Dam).

Resolution 1972-67 specifically states that no other provision of Resolution 1970-387 is changed.

Resolution 1972-67 was modified by Resolution 1978-108 to include the release of minors’ IIM moneys

to non-tribal adoptive parents, under certain circumstances. This last resolution, #1978-108, contains the

language the Appellee relies on to indicate that the social services provides procedural due process in its

decisions to release the minors’ moneys.

Resolution 1978-108 deals specifically and only with non-tribal member adoptions of tribal

children. It does not change the public policy position of the Tribes set out in 1970-387. By the very

nature of its subject matter, the only other resolution dealing with minors’ IIM moneys, Resolution 1998-

330, does not apply in this case.

IIM money is transient. If the minor were not a dependent of the Court, the parents would have free

access to the minors’ money, and, therefore, it was not a definable interest.

Citing Board of Regents v. Roth, 408 U.S. 564, 578 (1972), Appellee argues that the nature of the

Appellants assert their interests in their IIM money is a protectable property interest. The

Supreme Court recognizes an individual’s property interest in his IIM account. See Kennerly vs. U.S., 721

F.2d 1252, 1257 (1983). The Bureau of Indian Affairs consider IIM moneys to be the property of the

individual for whom the BIA maintains the account. See PART 87–USE OR DISTRIBUTION OF

INDIAN JUDGMENT FUNDS: Per capita payment aspects of plans and protection of funds accruing to

Id at paragraph 8.

“To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a

unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Board of Regents v. Roth, 408 U.S. 564, 578 (1972).

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minors, legal incompetents and deceased beneficiaries; and 25 CFR § 87.10 and 25 CFR § 115.1

Definitions.

Due process mandates that one cannot be deprived of one’s property without minimum

procedural due process. That is, adequate notice, an opportunity to be heard and present evidence on

one’s own behalf. The time and manner of the hearing must be meaningful. See Boddie vs. Connecticut,

401 U.S. 371 (1971).

The Tribes established a strong public policy to protect a minor’s IIM account specifically while

a minor is a dependent of a Court. A minor has a protectable interest in his IIM account. Nothing in the

for distributing a minor’s IIM prohibits the Tribes from regulating its tribal employees from accessing a

federal regulations which provide that the Bureau of Indian Affairs is the sole agency to determine a plan

minor’s IIM account. Defining what is in the best interests of a minor is within the discretion of the

Tribes. Based on the foregoing, we hold a tribal member minor’s IIM account generally cannot be

accessed for the minor’s support when he or she was a dependent of the Court.

We cannot ignore the practical aspects of supporting a minor dependent of the Court, however. In

this case the question was never explored at the trial level. Based on (1) the resolutions; (2) the fact that

there never has been a court determination of who is responsible for child support in this case; and (3)

the fact that both parents receive the same amount of per capitas as the children which could go toward

basic needs of the children, the Appellees have not established that it is in the best interests of the minors

to allow the use of their IIM accounts for their support. Nor have the Appellees established they are

exempt from the Tribes’ strong policy against accessing a minor’s IIM account for support. An inquiry

should be made regarding the ability of the parents to provide support, and what other avenues of support

are available for the minor. For instance, are the foster parents receiving money for support of the

children? Is there any other source of funding?

The issue of sovereign immunity of tribal caseworkers is not properly before this Court in this

case, and we will not rule on the issue. The Tribes has directed its employee-caseworkers not to use a

minor’s IIM account for support. This does not raise a question of sovereign immunity.

We hold that the Tribes has a strong tribal policy prohibiting use of a minor’s Individual Indian

Moneys account for a dependent child in lieu of other resources. Accordingly, we REVERSE and

(a) The per capita shares of... minors..., enhanced by investment earnings, shall be held in individual Indian money (IIM) accounts unless

otherwise provided as set out in this section. While held in IIM accounts, said shares shall be invested pursuant to 25 U.S.C. 162a and shall be

the property of the minors...” [emphasis added].

As used in this part: (a) The term “individual Indian money accounts” means those accounts under the control of the Secretary of the Interior

or his authorized representative belonging to individuals. [emphasis added].

At the oral arguments all parties generally agreed the parents have a primary responsibility for support of the minors. CTC §5-2-415

specifically provides for support hearings in dependency cases.

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REMAND this matter to the Trial Court for further proceedings consistent with this Opinion.

It is so Ordered.

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Elaine SEYMOUR, Appellant,

vs.

COLVILLE CONFEDERATED TRIBES, Appellee.

Case Number AP96-022, 3 CTCR 40, 29 ILR 6009

6 CCAR 5

[Jeffrey Rasmussen, Office of Public Defender, for Appellant.

Trial Court Case Number 95-18257]

Lin Sonnenberg, Office of Prosecuting Attorney, for Appellee.

Argued December 19, 1997. Decided October 18, 2001.

Before Chief Justice Dupris, Justice Chenois and Justice Miles.

DUPRIS, Chief Justice, for the Panel.

SUMMARY OF PROCEEDINGS

Appellant, Elaine Seymour, was convicted of Endangering the Welfare of a Child on December

21, 1995. At the trial, but not before, the Appellant raised the argument that the Appellee, The

Confederated Tribes of the Colville Reservation (hereinafter "Tribes), had to prove the Appellant was an

Indian in order to establish the jurisdiction of the Trial Court. The Trial Court ruled, without findings and

conclusions, that the Tribe did not have the burden of proving the Appellant was Indian. The defendant

appealed.

Clerk of the Court of Appeals to further research the issue.

the allegation has already been entered into the Court record at the time of the arraignment and/or bail

hearing. Further, the Appellant’s due process rights were not violated in the instant case. The Trial Court

The Court of Appeals held it is the Appellant’s burden to initially raise the issue of “Indian” when

is affirmed.

Oral arguments were heard on December 19, 1997. The Appellate Panel directed the Law

I. IS THE TRIBES REQUIRED TO PROVE THE DEFENDANT IS AN INDIAN

IN ORDER TO ESTABLISH JURISDICTION OF THE COURT?

A. Personal and Subject Matter Jurisdiction in the Criminal Trial Court

It is not clear from the pleadings what jurisdiction the Trial Court was asked to establish by

proving the Appellant was Indian: personal, subject matter, or a hybrid of both. In civil cases, in order to

successfully plead a case, alleged facts supporting both personal and subject matter jurisdiction must be

The Defendant also appealed her conviction, but withdrew this portion of the appeal at the Oral Arguments on December 19, 1997, so we

will not address the conviction itself.

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averred by the petitioning party.

The emphasis of the criminal complaint is to give notice to the defendant of his alleged criminal

behavior, as well as the alleged time, date and place of the alleged criminal act was committed by the

defendant. See, Bachand v. CCT, 2 CTCR 50, 24 ILR 6179 (1997), and U.S. v. Anderson, 532 F.2d 1218

(9th Cir 1976), cert. den. 429 U.S. 839, 97 SCt 111, 50 L.Ed.2d 107 (1976). Built into the petition, by

stating the place of the alleged crime, is an allegation of venue; by stating the name of the defendant is an

allegation of personal jurisdiction; and by stating the crime is an allegation of subject matter jurisdiction.

Generally speaking, personal jurisdiction is the power a Court has over the Appellant's person in

order to enter a judgment against him. See generally, Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed 565 (1877).

Subject matter jurisdiction is considered the power of the Court to hear the type of case that is before it.

See generally, Ex Parte Crow Dog, 109 U.S. 556 (1883).

the type of crime that can be prosecuted before it. The limitation is over the person who can be prosecuted

before the tribal court. There is no criminal jurisdiction to try or punish non-Indians in Tribal Courts

Tribal Courts are courts of limited jurisdiction in criminal matters, but the limitation is not over

absent express Congressional authority. Oliphant v. Suquamish, 435 U.S. 191, 209, 5 ILR A-9, (1978).

The Supreme Court ruled that such a limitation was because of the tribes' quasi-sovereign status in

relation to the federal government. Id at 210.

The Tribes have incorporated Oliphant into its statutory laws . For instance, CTC §1-1-70

defines the Tribes jurisdiction as follows:

The jurisdiction of the Tribal Court and the effective area of this Code shall include all

territory within the Reservation boundaries, and the lands outside the boundaries of the

Reservation held in trust by the United States for Tribal members of the Tribes, and it

shall be over all persons therein, provided, however, that criminal jurisdiction of the

Court shall not extend to trial of non-Indians...." [emphasis added]

The Tribes more specifically defines its limited criminal jurisdiction in the following statutes:

There are still no formal court rules for the Colville Tribal Trial Court. This assumption comes from reading the CTC chapter on Civil

Actions, CTC, Chapter 2-2. CTC §2-2-1, Jurisdiction Generally, states the Court has jurisdiction (1) over all suits involving persons residing

within the tribal jurisdiction; and (2) all other suits in which the parties consent or in which the events giving rise to the action occurred on within

tribal jurisdiction.

CTC §2-2-30, Complaints - Elements, requires the plaintiff to allege, inter alia, the names of the parties and a "statement of the facts

constituting the cause of action." Past practice is that the alleged facts under these sections set out the personal and subject matter jurisdiction

requirements to bring the case into the Trial Court. For examples see the civil complaint forms provided by the Trial Court for pro se litigants.

There is also a limit on the amount of fine and jail time a Tribal Court may assess a defendant convicted of a crime, which is not relevant to

this case. See The Indian Civil Rights Act, 25 U.S.C. §§1302 et seq.

For ease in looking up the sections, all references to the statutory laws of the Tribes will using the current Code sections, even though this

case was commenced prior to the enactment of the new Code, i.e. October, 1998. There are no substantive changes in the Code provisions cited;

only the numbering system changed.

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1) "1-1-430 Implied Consent

Entrance by any person or his property into the Reservation or Tribal Court jurisdiction

as defined by this Code, shall be deemed equivalent to and construed to be... a consent to

criminal jurisdiction of the Tribes concerning any legal action pursuant to this Code,...

trial of non-Indians." [emphasis added]

provided, however, that criminal jurisdiction of the Tribal Court shall not extend to

2) "1-1-431 Acts Submitting Person to Jurisdiction of Tribal Court

(b) The Colville Confederated Tribes shall [have] criminal jurisdiction over:

(1) all crimes committed by any Indian within the boundaries of the Colville Reservation..."

[emphasis added]

Oliphant establishes a hybrid type of jurisdiction, identifying tribal courts as courts of limited

jurisdiction regarding who can come before them. That is, subject matter jurisdiction is tied to who a

defendant is, and not just to what alleged conduct constitutes a crime on the Colville Reservation. This is

analogous to the limitations on criminal jurisdiction over actions occurring on Indian reservations as

applied in federal district courts;

personal jurisdiction based on ethnicity is a prerequisite to subject

matter jurisdiction in several instances in federal criminal court.

On the other hand, criminal jurisdiction in state courts is not defined by ethnicity as a general

rule.

Rather, the states generally take the position that any challenges to their jurisdiction based on

ethnicity is a defense to be borne by the defendant.

See, for example 18 U.S.C. §§ 1151 et seq, restricting the prosecution of defendants based on whether the defendant or victim are Indian, and

whether the crime occurred in Indian country.

See, e.g. Lucas v. United States, 163 U.S. 612, 16 S.Ct. 1168, 41 L.Ed 282 (1896) (it was a jury's duty to determine whether a "negro" was

considered a "Choctaw" for purposes of subject matter jurisdiction over crimes involving Indian victims); Morrison v. California, 291 U.S. 82, 54

S.Ct. 281, 78 L.Ed 664 (1934) (the Court discussed, inter alia, the burden of proof necessary to show a defendant was Japanese in order to apply

a statute prohibiting Japanese to own land); Unites States v. Lawrence, 51 F.3d 150 (8th cir., 1995) (citing Unites States v. Rodgers, 45 U.S. (4

How.) 567, 572-73, 11 L.Ed. 1105 (1845)) (set a test for determining, for the purposes of federal criminal jurisdiction, who is "Indian"); United

States v. Broncheau, 597 F.2d 1260 (9th Cir., 1979), (defendant challenged federal jurisdiction because the government didn't plead the defendant

was an enrolled Indian); and United States v. Heath, 509 F.2d 16 (9th Cir., 1974), (federal jurisdiction challenged because the defendant was a

member of a terminated tribe).

See, State v. Brown, 29 Wash. App. 11, 627 P.2d 132 (1981) (Court distinguishes between subject matter jurisdiction over the crime and the

long-arm criminal jurisdiction statute, Rev. Code of Wash. §9A.04.035(5), under which the State secures personal jurisdiction); Arizona v.

Verdugo, 22 ILR 5047 (Ariz. Ct. App., Jan. 17, 1995) (Arizona follows majority of state courts by holding the state did not have to allege the

defendant and/or victim were not Indian to establish jurisdiction in that the ethnicity of the defendant was not an element of the offense and the

burden was with the defendant to first assert his or the victims ethnicity in order to defeat state jurisdiction); But see, State v. Allan, 607 P. 2d 426

(Id., 1980) (State Supreme Court reversed conviction of Quinault Indian convicted of bribery committed on the Coeur d’Alene reservation for

lack of subject matter jurisdiction.)

See, Jones v. State, 585 P. 2d 1340 (Nev. 1978) ("[T]he State is not obliged to prove that the accused is not an Indian. Rather, the accused

must shoulder the burden of establishing his Indian ancestry, if he seeks to challenge state court jurisdiction." at 1341); and State v. Francis, 563

A. 2d 249 (Vt., 1989) (citing cases from Nevada, New Mexico, Louisiana, Indiana, and Maryland for the proposition that the defendant has the

burden of proving lack of state court jurisdiction.)

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Although there are similarities between the federal laws and tribal laws, one cannot ignore the

differences in their foundations. The federal courts are by their very natures courts of limited jurisdiction,

a decision made when powers were being divided between the federal and state governments back in the

1700's. Tribal governments were not part of this process.

1930's, as amended in the 1990's. Our court system interprets and enforces laws from custom and

tradition, from tribal statutes and from tribal case law.

Our court system, as it now exists, derives its powers from the Tribal Constitution passed in the

The U.S. Supreme Court continues to press non-Indian standards on tribal courts in their

interpretations of tribal jurisdiction. It is the tribal judiciaries' responsibility to be ever vigilant in ensuring

that tribal law is developed, based on our cultural mores and standards, and not just the pan-Indianism

view of the Supreme Court. We must accept the limits of the Supreme Court in the most conservative way

possible.

Our situation appears to be closer to the federal courts than the state courts, however. That is,

federal criminal law, both statutory and case law, recognize being "Indian" as a prerequisite to

jurisdiction. Colville statutory law adopts this view in its relevant statutes, as pointed out above.

Being

an "Indian" is a requisite to jurisdiction over a defendant in criminal cases in the Colville Tribal Courts.

We so hold.

This jurisdiction is not pure subject matter jurisdiction, however. It is a hybrid of subject matter

and personal jurisdiction developed by the federal courts to limit tribal jurisdiction. As such, it should not

carry the same standard as pure subject matter jurisdiction in that a party can assert lack of subject matter

jurisdiction at any time. The question becomes: when may a lack of “Oliphant” jurisdiction be asserted?

This is a question of first impression.

B. Who Has the Burden to Assert Lack of “Oliphant” Jurisdiction?

(1) APPLICABLE STANDARD OF REVIEW

Challenges to pure subject matter jurisdiction can be made at any time. Eg. E.S.G. v. Colville

Tribal Administrative Court, et. al., 1 CTCR 54 (1991). Subject matter jurisdiction goes to the heart of the

powers of a court to decide a case. Challenges to personal jurisdiction can be waived if not raised in a

timely fashion.

Bachand v. CCT, 4 CCAR 23, 27, 2 CTCR 50, 24 ILR 6179, 7 NALD 7013, (1997)

(citing U.S. v. Heath, 509 F.2d 16, 19 (1974)).

Oliphant has long been criticized, particularly for its poor reasoning and abrupt departure from foundational legal principles of Indian law. In

particular it ignored the principle that only Congress or a Treaty could divest Tribes of necessary aspects of their inherent sovereignty. See David

H. Getches, 84 Calif. L.Rev. 1499, 1595-1598, n.103 (1996). Nevertheless the Tribes have chosen to adopt the Oliphant ruling in its statutory

law. It is this law that we are bound to enforce.

In Bachand v. CCT, 4 CCAR 23,25, 2 CTCR 50, 24 ILR 6179, 7 NALD 7013 (1997) this Court held that we had “personal jurisdiction”

over the defendant because he was Indian. The issue framed by the Appellant/Defendant was lack of personal jurisdiction, and not subject matter

jurisdiction.

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As stated above, however, the prerequisite of being an Indian in a criminal case in tribal court is

not a pure subject matter jurisdiction question. It is a hybrid jurisdiction, in which personal jurisdiction

(who is brought before the Court) is mixed with subject matter jurisdiction (the power of the Court to hear

the matter).

Court interpreted the ruling in Montana v. U.S., 450 U.S. 563, 8 ILR 1005 (1981), regarding lack of tribal

civil jurisdiction over non-Indians as analogous to a tribe’s lack of criminal jurisdiction over non-Indians

In Strate v. A-1 Contractors, 520 U.S. 438, 117 S.Ct. 1404, 24 ILR 1015 (1997), the Supreme

as recognized in Oliphant v. Suquamish, supra. Strate at 24 ILR 1016.

Even though the Supreme Court ties lack of tribal jurisdiction over non-Indians to a lack of

inherent authority in Montana and Strate, the Supreme Court further holds, inter alia, that a non-Indian,

through his own actions, can be subject to tribal civil jurisdiction if he consented to the jurisdiction

through his interactions with the tribe. Montana at 565 and 1011, and Strate at 24 ILR 1016. As a general

rule, consent to jurisdiction cannot defeat lack of subject matter jurisdiction.

In Oliphant the same Supreme Court has held that tribes lack inherent jurisdiction to prosecute

non-Indians. Oliphant at 212. This is the same lack of inherent jurisdiction recognized in Montana and

Strate. It would be logical, therefore, to assume that questions of jurisdiction over a person in tribal

criminal court are not a matter of pure subject matter jurisdiction, just as they are not in civil court.

Whether a defendant is an “Indian” is not an element of an offense. In our Courts, elements of an

offense have been recognized to be those facts offered to prove a defendant committed specific acts at a

specific place, time and date which constitute criminal behavior. See, generally, Pakootas v. CCT, 1

CCAR 65, 1 CTCR 67 (1993); Condon v. CCT, 3 CCAR 48, 2 CTCR 20, 23 ILR 6327 (1994); CCT v.

Clark, 4 CCAR 53, 2 CTCR 45, 25 ILR 6066, 8 NALD 7006 (1998); and Amundson V. CCT, 4 CCAR

62, 2 CTCR 68, 25 ILR 6178 (1998).

In state courts ethnicity is not a requirement of subject matter jurisdiction as a general rule, but

more a matter of in personam jurisdiction. See footnote 8, supra. The states regard being “Indian” as a

defense to be raised by the defendant, or waived in that the states have inherent authority to prosecute

anyone for violations of its criminal laws.

It is imperative that this Court preserve the inherent authority of the Tribes to enforce its laws,

and protect its citizens on its Reservation. The confines put upon this inherent authority by federal case

law should not diminish it any more than Congress has already done. See, generally, discussion in Stead

v. CCT, 2 CCAR 27, 29-32, 2 CTCR 02, 21 ILR 6005 (1993).

In this matter, the Tribes is more in the position of the states. In the protection of its inherent

authority to preserve peace and welfare of the Tribes, a more restrictive standard should be used in

deciding to deny tribal jurisdiction. The standard of review lies between personal and subject matter

fashion, or it will be waived, unless it can be shown that it would violate the defendant’s due process

jurisdiction. It should not be subject to challenge at any time. Rather, it should be raised in a timely

rights to proceed. We so hold.

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(2) WHO HAS THE FIRST BURDEN OF PRODUCTION?

The ideal mechanism would be for the Tribes to affirmatively make an allegation that the

defendant is an Indian in its initial pleadings, just as it does in the criminal citation complaint. See,

Bachand v. CCT, 2 CTCR 50, 24 ILR 6179, 7 NALD 7013, 4 CCAR 23 (1997) (the Trial Court did not

“Indian” had been alleged in the citation complaint and the defendant did not adequately raise his

err by not making a specific finding on record the Appellant was “Indian” because the allegation of

challenge to it).

The facts in this case are similar to Bachand, supra, in that the Trial Court record during the

arraignment/bail hearing indicates the Appellant is an enrolled member of the Colville Tribes, enrollment

number 90E. The Appellant was present, read her rights, and entered a not guilty plea to the charges at

that time. The record reflects the Appellant’s name, address, message phone number, and financial status.

It is not clear from the record why the Appellant did not affirmatively raise the issue of whether

she was Indian, nor was there an assertion she wasn’t Indian, before the jury trial. The issue was raised at

the jury trial in a proposed jury instruction which included proof of Indian as an element of the offense.

“Indianness” of a defendant in order to secure jurisdiction. Lucas v. U.S., 163 U.S. 612, 617, 16 S.Ct.

1168, 41 L.Ed 282 (1896) (The burden of proof was on the government to sustain the jurisdiction of the

The non-tribal courts are split on who then has the burden of production on the issue of

court by evidence as to the status of the deceased, and the question should have gone to the jury as one of

fact and not of presumption); Morrison v. California, 291 U.S. 82, 88, 54 S.Ct. 281, 78 L.Ed 664 (1934)

("The decisions are manifold that within reason and fairness the burden of proof may be lifted from the

state in criminal prosecutions and cast on a defendant.”);In re Adolfo M., 275 Cal Rptr 619, 623 (App

1990) (the rule of necessity and convenience provides the burden of proving an exonerating or

dispositional fact may be imposed on a defendant if its existence is peculiarly within his personal

knowledge and proof of its nonexistence by the prosecution would be relatively difficult or inconvenient);

of Habeas Corpus) No. CA-96-676-JLQ, (Dist. Ct, Eastern District of WA), March 25, 1998 (in assessing

Steven Ford v. Spokane Tribal Court, et al., (unreported opinion order: Order Denying Petition for Writ

the cultural reasons for the Spokane Tribal Court’s holdings, the federal District Court stated that the

Petitioner could have raised or denied the jurisdictional fact of his membership in a federally recognized

Indian tribe at any time. If he had done so, the prosecutor would have been required to offer proof on the

issue.... Therefore, the Tribal Court placed the burden to raise this jurisdictional deficiency on the

Defendant); Arizona v. Verdugo, 22 ILR 5047, 5048 (1995) ("The majority of other courts addressing this

issue have held that a defendant bears the burden to show facts that would establish an exception to the

state court's jurisdiction under the Indian Country Crimes Act. [citing cases from Vermont, New Mexico,

and Nevada].").

The most persuasive position is that in the unreported Ford case from the Eastern District.

The

This Court is not prohibited by any rule from citing an unreported federal district court opinion. We look to Ford as illustrating and

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6 CCAR ___

Spokane Tribes, like the Colvilles, are a plateau tribe. There are cultural similarities we can draw on, and

as with the Spokanes, generally a Colville would not say he was non-Indian. Further, as the state courts

have found, it would be too difficult to prove a non-Indian status, and such an allegation would be

accepted at face value unless the Tribes had actual proof of tribal enrollment.

the Court’s record indicates an allegation that she is, unless such a burden would violate the defendant’s

due process.

Based on the foregoing we hold a defendant has the initial burden to raise the issue of “Indian” if

Appellant has alleged her due process rights were violated because her proposed jury instruction

was refused and the Tribes did not put in record before the jury that she was an Indian. We cannot see

how she was harmed. She didn't assert she wasn't Indian. Neither her arguments at the oral arguments

hearing nor the record support her allegations of due process violations. We hold there are no due process

violations in the facts of this case which would negate the Appellants conviction.

Accordingly, we AFFIRM the Trial Court and REMAND for further proceedings consistent

with this Opinion.

IT IS SO ORDERED.

recognizing a cultural aspect of tribes, and not as binding authority on this Court.

Court of Appeals Reporter

6 CCAR ___

Vincent JACK, Appellant,

vs.

COLVILLE CONFEDERATED TRIBES, Appellee.

Case Number AP97-007, 3 CTCR 41

6 CCAR 11

[M. Brent Leonard, Office of Public Defender, for the Appellant.

Leslie Kuntz, Office of Prosecuting Attorney, for the Appellee.

Trial Court Case Number 92-15530]

Argued March 20, 1998. Decided February 15, 2002.

Before Chief Justice Dupris, Justice Chenois and Justice McGeoghegan.

Dupris, J. for the Panel.

SUMMARY

On December 19, 1992, Appellant was charged by criminal citation with Battery (Domestic

Violence) and Resisting Arrest. On April 1, 1993, he plead to guilty to Resisting Arrest. The charge of

Battery was dismissed. A pre-sentence investigation report was filed prior to Appellant’s sentencing on

May 24, 1993.

At sentencing, the Court imposed a $1000 fine with $500 suspended conditionally; 60 days jail

with 50 days suspended; conditions imposed: file an alcohol evaluation within 30 days and follow

recommendations of TCCS

for one year, with quarterly reports being required; not to be cited for any

alcohol-related or violence-related offenses for one year; court costs of $5.00; and completion of all

conditions contained in the order. A pre-dismissal hearing was set for May 9, 1994.

A show cause hearing was held on July 29, 1996 and the Appellant was found to have violated

the Court’s order by failing to pay $400; failing to comply with TCCS (failure to submit alcohol

evaluation and submit quarterly reports) and failure to appear for the pre-dismissal hearing. The Court

imposed $150 of the suspended fine and extended the time to comply to February 29, 1997. Another predismissal hearing was set for January 13, 1997.

On January 13, 1997, Appellant failed to appear for the pre-dismissal hearing, failed to submit the

alcohol evaluation and quarterly reports and to follow recommendations by TCCS. A warrant was issued

for his arrest.

A Show Cause hearing was held on March 12, 1997. Appellant was found to have violated the

Tribal Community Counseling Services, a Tribal program which handled alcohol evaluations, referrals and support services.

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6 CCAR ___

Court’s prior order by failing to pay his fine of $450; failure to submit an alcohol evaluation from TCCS;

failure to submit quarterly reports from TCCS; and failure to appear for a predismissal hearing on January

13, 1997. The Court imposed the suspended sentence of 50 days; the $450 was due immediately; and kept

all previous orders of the Court intact.

The Stay was granted.

Appellant filed his Notice of Appeal on March 14, 1997 and requested a Stay of the Sentence.

A briefing schedule was set. Briefs were filed and oral arguments were heard on March 20, 1998.

Four issues were alleged in the Notice of Appeal.

ISSUES

1. Was Appellant’s right to remain silent violated when the Court considered his invocation of

that right in response to court questioning?

2. Did the Court err when it considered and found violations for issues not listed in the notice for

show cause hearing?

3. Did the Court err when it refused to continue the show cause on Appellant’s request?

4. Did the Court err when it imposed all the suspended fines and jail time under the facts of this

case and the violations found in this case?

DISCUSSION

ISSUE #1: Was Appellant’s right to remain silent violated when the Court considered his invocation of

that right in response to court questioning?

Appellant argues that under CTC 56.02 (now CTC 1-5-2) that he should not be required to

provide testimony that might incriminate himself in a criminal matter. In the instant case, answering

questions concerning his alleged failure to submit reports could be a basis for the offense of Disobedience

of a Court Order. When the Court questioned him about the alleged violation, it did not offer him

immunity from his testimony. Appellant argues that the Court wrongly attempted to compel him to

incriminate himself. Appellant was not called as a witness by either party, but the Court questioned him in

regard to the show cause issues and to issues not listed in the summons for show cause. In response,

Appellant specifically invoked his right to remain silent. The Court explicitly considered Appellant’s lack

of testimony when it found Appellant in violation of the prior show cause order.

Appellee argues that other courts (no tribal case law on point was found) have consistently held

that probation revocation hearings are not “essentially criminal” and that rights usually attendant to

criminal proceedings don’t apply. Appellee cites various cases which support the Tribe’s position that

probationers who violate conditions of their probation should not possess the same rights as those facing

of guilt in a criminal trial, the standard of review is “beyond a reasonable doubt,” and the burden is on the

criminal charges for which no determination of guilt has been reached. When initially reaching a finding

government to prove their case. In probation violation hearings, guilt has already been established in the

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6 CCAR ___

case and the government may call the defendant to testify as a witness in alleged violations. The

government’s burden is not as high. The probationer’s silence may be considered by the judge in

determining if a violation has occurred.

It is the holding of this Court that the defendant’s right to remain silent was not violated when the

Court inquired as to his compliance with its court order. The burden to be used by the Trial Court at a

show cause hearing is the preponderance of the evidence and not beyond a reasonable doubt. Therefore it

is within the discretion of the Trial Court to ask the defendant questions about his compliance and to

consider his testimony, or lack of testimony, when deciding if he has complied with its order. The

defendant has no right to remain silent at post conviction hearings.

ISSUE #2:Did the Court err when it considered and found violations for issues not listed in the notice for

show cause hearing?

Appellant cites John Clark v. CCT (Col. App. 1996) as holding that Colville Tribal rules state that

a defendant is entitled to notice regarding issues to be raised at show cause hearings. In the instant case,

Appellant was notified that the issue to be considered at the show cause hearing was his alleged failure to

file an evaluation from TCCS. At the hearing, the Court expanded the issues to include the failure to

comply with recommendations, failure to file progress reports and failure to pay his fine. Appellant feels

that he should be accorded notice in order to prepare his defense.

Appellee argues that a review of the facts will show that Appellant was properly provided with

notice of the issues discussed at the show cause hearing.

Appellant appeared at a show cause hearing on July 29, 1996. At that hearing, he was found in

non-compliance with the original Judgment and Sentence. The court extended jurisdiction for six months.

One condition was that the Appellant comply with recommendations of a certified alcohol program.

show cause why the suspended sentence should not be reinstated. Appellant received the Order from

Show Cause. At the time of the hearing, Appellant and his counsel both failed to appear. The Court found

Failure to comply would require the Appellant to appear at a pre-dismissal hearing on January 13, 1997 to

insufficient evidence of compliance and issued a warrant for Appellant’s arrest. Both the Order from this

hearing and the bench warrant were served on Appellant’s counsel. A copy of the order was also served

on Appellant.

At the subsequent bail hearing, the Tribes gave notice of the issues they intended to raise at show

cause, which included whether Appellant complied with recommendations of an alcohol program. The

issues were unopposed by counsel for Appellant.

Nine days later, the show cause hearing was convened. Appellant raised the issue of lack of

notice of violation of the condition of non-compliance with an alcohol program. Appellee argues that

Appellant had sufficient notice of the issues to be heard at the show cause hearing.

It is the holding of this Court that the Appellant received adequate notice of the issues raised at

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6 CCAR ___

the show cause hearing. There is ample evidence to show that the Appellant was given notice that at the

predismissal hearing all conditions of the suspended sentence would be discussed at the hearing. The

Appellant was put on notice that if he failed to comply with the court order that a show cause hearing

would issue to determine if any or all of the suspended portion of the sentence should be reinstated.

ISSUE #3: Did the Court err when it refused to continue the show cause on Appellant’s request?

Appellant argues that the general rule of law is that if a party requests a continuance to meet

unanticipated issues, the continuance should be granted and failure to do so is abuse of discretion. In the

instant case, the issue noted for hearing was the failure to file an evaluation. The record established that

an evaluation had been filed. The Court then considered whether Appellant had complied with other

aspects of the Judgment and Sentence and Appellant was not prepared to proceed on those issues.

Appellant cited Cora Pakootas v. CCT, 1 CTCR 67 (1993) stating that if a rational trier of fact

could not reach the finding at issue then the Appellate Court will reverse. Here, the Court found a

violation of recommendations of an alcohol program, even though the evaluation did not contain any

Appellee argues that Appellant received sufficient notice of the issues for the show cause and

recommendation. No other evidence was produced. The alcohol counselor did not testify.

should not have been granted a continuance on those grounds.

It is the holding of this Court that 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. Grunlose v. CCT, AP96-007, 3 CTCR 25, 5 CCAR 26 (1999).

ISSUE #4: Did the Court err when it imposed all the suspended fines and jail time under the facts of this

case and the violations found in this case?

Appellant argues that some of the Trial Court’s findings of violations should be reversed and the

matter should be remanded to the Trial Court to determine the appropriate remedy under CTC 2.4.05.

Appellee argues that there was sufficient evidence contained in the file that Appellant violated the

condition of his sentence. There were reports of Appellant’s non-compliance with the alcohol program.

Appellee concedes that the reports could have been more in-depth, but still maintains that there was

sufficient data for the Trial Court to make its determination that a violation had occurred.

It is the holding of this Court that it is in the Trial Court’s discretion on how much, if any, of the

suspended portion of a sentence is reinstated. Before the Court of Appeals will overturn the Trial Court’s

decision, there must be shown a clear abuse of discretion and in the instant case, no such showing has

discretion and the where the sentence imposed is within the sentencing limits of the Colville Tribal Code,

been offered. Grunlose id. Where the record is void of clear and convincing evidence of abuse of

the Court will not disturb the sentencing of the court below. Waters v. CCT, AP96-006, 2 CTCR 69, 25

Court of Appeals Reporter

6 CCAR ___

ILR 6202, 4 CCAR 65 (1998).

ORDER

Based on the foregoing holdings, it is ORDERED that the Trial Court’s decision is affirmed and

the matter is remanded to the Trial Court for action consistent with this opinion.

Court of Appeals Reporter

6 CCAR ___

COLVILLE CONFEDERATED TRIBES, Appellant,

vs.

Ernest RICKARD, Appellee.

Case Number AP02-002, 3 CTCR 42

6 CCAR 15

[Dawn Reynolds, Office of Prosecuting Attorney, for Appellant.

Tim Liesenfelder, Attorney, for Appellee.

Trial Court Case Number CR 2000-22470]

Decided February 15, 2002.

Before Chief Justice Dupris, Justice Chenois and Justice McGeoghegan

This matter came before the Court of Appeals pursuant to a filing of a Notice of Interlocutory

Appeal by Appellant on this date alleging that the Trial Court abused it’s discretion by creating a new rule

where none had existed before, misinterpreted federal and state rules of procedure and dismissed charges

which Defendant did not indicate any specific prejudice to his defense.

Upon review of the record and brief filed by Appellant, the Court of Appeals enters the following

decisions:

1. If Appellant is seeking a stay of the proceedings, such stay should be made at the Trial Court.

If the stay is denied by the Trial Court, then Appellant may seek relief at the Court of Appeals. Request

for Stay is denied.

2. The Trial Court’s dismissal of three Abduction charges based on an instant procedural rule

adopted in this case is not ripe for appeal. Although the Appellant asked for a stay of the proceedings, we

the three Abduction charges.

are characterizing the interlocutory appeal as asking this Court to reverse the Trial Court’s dismissal of

There is no existing procedural rule that expressly prohibits amending a complaint other than

what has been expressed in the Trial Court’s decision. The Appellant’s request to stay the Trial Court’s

decision to dismiss the Abduction charges is anticipatory. Notwithstanding the Trial Court’s indication

that the “Defendant cannot and will not be charged with these new charges,”

attempted to refile such charges and that the Interlocutory Appeal is not properly before us yet. Therefore

the Appellant has not

the Appellant’s request for Interlocutory Appeal is denied without prejudice.

It is SO ORDERED.

Order Denying Motion to Vacate Order Dismissing Three Counts of Abduction, entered February 15, 2002, by Judge Aycock.

Court of Appeals Reporter

6 CCAR ___

Court of Appeals Reporter

6 CCAR ___

Melissa M. FRY, Appellant,

vs.

Larry E. FRY Jr., Appellee.

Case Number AP01-008, 3 CTCR 43

6 CCAR 16

[Parties appeared pro se.

Trial Court Case Number CV-CU-2001-21123]

Hearing held February 15, 2002. Decided March 5, 2002.

Before Chief Justice Dupris, Justice Bonga and Justice Chenois

Dupris, J. for the Panel

This matter came before the Court of Appeals pursuant to a filing of a Notice of Appeal by

Appellants on August 20, 2001. A bond status hearing was held February 15, 2002 to determine if bond

had been posted and it not, what the next procedure should be.

An inquiry to the Appellant in open Court revealed that bond had not been posted.

The Court of Appeals determined that the following procedure should be followed:

1. Appellant shall either post bond of $300.00 or obtain a modification of the bond amount within

two weeks and show proof to the Court of Appeals, i.e. by March 1, 2002. The bond shall be posted with

the Trial Court or the modification obtained from the Trial Court.

2. If the bond or modification order is posted by March 1, 2002, and proof is give to the Court of

Appeals, an order setting out a briefing schedule will be issued.

3. If the bond or modification order is not posted by March 1, 2002, an order dismissing the

appeal will be issued.

Upon review of the file and inquiry to the Trial Court, it is found that the bond has not been

posted by Appellant. No proof of posting of the bond was filed with the Court of Appeals. On February

15, 2002, an Order was filed from the Trial Court which denied modification of the bond amount.

Therefore, it is the decision of this Court that this matter should be dismissed as the appeal has

not been perfected by Appellant.

It is SO ORDERED.

Daniel HOOVER, Appellant,

vs.

COLVILLE CONFEDERATED TRIBES, Appellee.

Case Number AP99-001, 3 CTCR 44

Court of Appeals Reporter

6 CCAR ___

6 CCAR 16

[Tim Brewer, Office of the Reservation Attorney for the Colville Confederated Tribes; Eric Richter, Henke &

Richter for the Estate of Daniel Hoover.

Argued July 16, 1999. Decided March 18, 2002.

En Banc Before: Chief Justice Anita Dupris, Justice Elizabeth Fry, Justice Dennis Nelson, Justice Howard Stewart,

Justice Earl McGeoghegan, Justice David Bonga, Justice Edythe Chenois, Justice Conrad Pascal, and Justice Wanda

Miles, who contributed greatly to this opinion. Justice Miles passed away on November 12, 2001.

Trial Court Case Number CV96-16042]

Fry, J.

Appeal of injunction restraining non-Indian appellant from developing real property located within the

Hellsgate Game Reserve on the Colville Confederated Tribes Reservation without complying with

provisions of the Tribes’ Land Use Ordinance. We affirm.

PROCEDURAL HISTORY

Non-Indian Daniel Hoover (Hoover) filed an action in federal district court alleging the Colville

Confederated Tribes (Tribes) lacked jurisdiction to regulate fee lands owned by him and located within

the Colville Confederated Tribes Reservation. The district court determined the Colville Tribal Court had

authority to determine its jurisdiction regarding Mr. Hoover's claim and ordered him to exhaust those

remedies available in Tribal Court before seeking relief in the federal system.

The Tribes subsequently filed an action in Tribal Court seeking an injunction to restrain Hoover

from developing his real property without complying with the provisions of the Colville Land Use and

Development Code. The Tribal Court granted an injunction and Hoover appealed to this court arguing

that the Tribes are without legal authority to regulate non-Indian fee lands located within their reservation.

in as plaintiff.

Daniel Hoover died in 2000. The personal representative of his estate, Jerry Thon, has substituted

JURISDICTION

This Court has personal and subject matter jurisdiction of this case pursuant to the Constitution of

the Colville Confederated Tribes

and the Colville Tribal Code . Also see Colville Confederated Tribes

AMENDMENT X - JUDICIARY - Article VIII Judiciary - Section 1. There shall be established by the Business Council of the

Confederated Tribes of the Colville Reservation a separate branch of government consisting of the Colville Tribal Court of Appeals, the Colville

Tribal Court, and such additional Courts as the Business Council may determine appropriate. It shall be the duty of all Courts established under

this section to interpret and enforce the laws of the Confederated Tribes of the Colville Reservation as adopted by the governing body of the

Tribes. The Business Council shall determine the scope of the jurisdiction of these courts and the qualifications of the judges of these courts by

statute.

Court of Appeals Reporter

6 CCAR ___

v. Stockwest, CV86-624, 21 ILR 6075 (1984) and National Farmers Union Ins. Co. v. Crow Tribe, 471

U.S. 845, 12 ILR 1035 (1985).

STANDARD OF REVIEW

The question of jurisdiction is entirely one of law. The standard of review for questions of law is

non-deferential to findings and conclusions of the trial court and is de novo. CCT v. Naff, 2 CCAR

50,

22 ILR 6031 (1995), United States v. McConney, 726 F.2d 1195 (9 Cir. 1984).

STATEMENT OF RELEVANT FACTS

History

Prior to the presence of the white man, the ancestors of the tribes and bands of the Colville

Confederated Tribes

occupied an area comprised of what is now Eastern Washington, Southern Central

British Columbia, and portions of Idaho and Oregon.

In 1872, President Grant created the Colville Confederated Indian Reservation by Executive

Order - without a treaty and without the consent of the tribes and bands of Indians residing in the area.

The original reservation was over three million acres in size, but was reduced to its present size of

approximately one million four hundred thousand acres under an agreement dated May 9, 1891, when

gold was discovered in the northern half of the Reservation.

The Reservation is located within portions of Okanogan and Ferry Counties in north central

Washington State. Originally, all the land within the Reservation was held in trust for the Tribes. Lands

Colville Tribal Code 1-1-70 Jurisdiction defined. The jurisdiction of the Tribal Court and the effective area of this Code shall include all

territory within the Reservation boundaries, and the lands outside the boundaries of the Reservation held in trust by the United States for Tribal

members of the Tribes, and it shall be over all persons therein; provided, however, that criminal jurisdiction of the Court shall not extend to nonIndians...

Colville Tribal Code 2-2-1 Jurisdiction Generally. The Court shall have jurisdiction of all suits involving persons residing within the

Tribal jurisdiction as defined by this Code and all other suits in which a party is deemed to have consented to the jurisdiction of the Court, or in

which the events giving rise to the action occurred within the Tribal jurisdiction as defined by this Code.

CCAR is the Colville Court of Appeals Reporter, available through the Colville Tribal Court of Appeals.

The facts in this case are uncontroverted. Although Mr. Hoover did not challenge the trial court’s Findings of Fact in his Notice of

Appeal, he did so in his brief. Mr. Hoover informed the Court during oral argument that he did not contest the Findings of Fact. We also note

that Mr. Hoover controverted none of the Tribes' expert witness testimony. The Statement of Relevant Facts is taken from the Findings of Fact

entered by Judge Wynne and is, in most instances, verbatim.

The Colville Tribes consist of twelve distinct Tribes or Bands: San Poil, Nespelem, Colville, Okanogan, Methow, Wenatchee,

Chelan, Entiat, Moses, Palouse, Chief Joseph Band of Nez Perce, and the Lakes.

Court of Appeals Reporter

6 CCAR ___

were later allotted and homesteaded within the Reservation as a result of the allotment policies of the

early twentieth century. Approximately seventy-nine percent (79%) of the reservation lands are now held

in trust for the Tribes and its members. The remainder is held by federal agencies or is owned in fee by

Indians and non-Indians.

The Hellsgate Reserve

In 1977, the Tribes designated the southeast corner of the Reservation as the Hellsgate Game

Reserve. The area was chosen because of its remote character, limited access, limited development, small

population, natural geographic boundaries and critical range habitat. It is critical winter range habitat for

deer, elk, and other wildlife.

The Reserve is bordered on the south and east by the Columbia River, on the west by the San Poil

River arm of Lake Roosevelt and on the north by Silver Creek Road. It is situated entirely within the

exterior boundaries of Ferry County and contains slightly more than one hundred thousand acres.

Approximately 87% of the land within the Reserve is in trust status, 11% of the land is in nonIndian and Indian fee ownership, and the remaining 2% is owned by the Federal Bureau of Reclamation.

The Reserve contains no cities, towns, or areas of concentrated development or settlement. At the

time of hearing, there were fourteen permanent homes and five summer cabins within its boundaries.

Almost all the buildings existed prior to the Tribes' designation of the areas as a reserve and enactment of

its Land Use and Development Code.

The Reserve is managed specifically for conservation of wildlife and native plants. The area plays

an integral role in preserving game populations and maintaining the hunting and gathering traditions of

the Tribes. It consists of diverse topography and habitat with rugged hill country, dry land range, clear

streams and coniferous forests. It contains abundant and diverse wildlife, including elk and deer. Tribal

members, whose average annual income is approximately $7,000.00, depend significantly on wildlife and

plant life within the Reserve for cultural needs and sustenance.

The Tribes have managed and regulated the Reserve to preserve its natural and cultural values.

They have implemented strict wildlife management practices, including restriction of camping and offroad vehicle use.

The Tribes have actively implemented a policy to reacquire fee property within the Reservation,

and the Reserve has been targeted as a priority for purchases in order to enhance wildlife habitat. The

Reserve has reacquired 9,272 acres within Reserve boundaries since 1992 at a cost of over five million

dollars. The Bonneville Power Administration, an agency of the federal government, has assisted in

funding these purchases through authorization of the Pacific Northwest Electric Power Planning and

Conservation Act,

which specifically provides for land acquisition and wildlife enhancement.

16 U.S.C. 839, P.L. 96-501, December 5, 1980, 94 Stat. 1333.

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6 CCAR ___

The Hellsgate Reserve plays a significant role in the continuation of the Tribes' culture. It is a

place designated to preserve their hunting and gathering traditions and allow for extended family camps.

The camps are a valued part of tribal life and cultural survival; traditions which have passed down

through generations.

The Reserve contains a variety of plants

used by tribal members for food, as medicine, and in

traditional ceremonies required for continued survival of the Tribes' culture.

The plants and animals protected and preserved through comprehensive management of the

Reserve are not only a food source, but also play a vital and irreplaceable role in the cultural and religious

life of tribal members. Annual medicine dances, root feasts and ceremonies incorporate animal and plant

life found within the Reserve. These dances, feasts, and ceremonies play an integral role in the well being

and survival of the Tribes and their members.

Management and Regulation of the Reserve

The Tribes have managed and regulated the Hellsgate Reserve to preserve its natural and cultural

values. Wildlife and fish are important to the Tribes' culture and provide an important food source to its

members. The Tribes expend about three million dollars per year managing game, fish, and other species

found within the Reservation. A significant portion of this money is earmarked for management activities

and land acquisition within the Reserve.

In 1977, the Tribes, in cooperation with the United States Department of the Interior, acquired

fifty head of elk from the Wind Caves National Monument in South Dakota to re-establish an elk herd on

the Reservation for supplementation of subsistence deer herds. The Tribes' Fish and Wildlife Department

area. Since then, the elk, subject to comprehensive tribal management, have flourished, greatly increasing

determined the Hellsgate area was best suited for the elk, based upon extensive winter range habitat of the

in number within the Reserve and in other areas of the Reservation. Estimates place the size of the herd

within the Reservation at over eight hundred animals.

Hunting and fishing in the Reserve are limited. There is, for instance, a six-month subsistence

deer season in effect elsewhere on the Reservation, while deer hunting within the Reserve has been

limited to an annual nine-day buck hunt. Elk hunting, at the time of hearing, was limited to a restrictive

lottery system. The Tribes do not permit non-member hunting on trust and fee lands within the Reserve.

The no-hunting restriction on fee lands is through implementation of an intergovernmental agreement

with the State of Washington.

practices such as tagging and monitoring big game, surveys, raptor nesting site protection, and wilderness

recreation restrictions. Tribal resource and law enforcement personnel devote significant portions of their

In addition to restriction of hunting within the Reserve, the Tribes conduct wildlife management

Culturally important plants include black camas, wild carrots, Indian potatoes, willow, rose bush, pine nut, black moss, huckleberry,

and chokecherry.

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6 CCAR ___

time to management activities in the Reserve. These activities are funded by trust funds derived primarily

from sales of timber and from grants and contracts through the Indian Self-Determination Act.

The Tribes permit timber harvests within the Reserve, provided they are conducted in a manner

consistent with tribal wildlife management practices. Timber resources represented the largest revenue

source for the Tribes at the time of hearing. All timber sales go through the Integrated Resource

Management Planning (IRMP) process

designed to minimize harm to the environment and to ensure

compatibility with the purposes of the Reserve. The Tribes review timber harvest sales on fee lands

within the Reserve in accordance with an intergovernmental agreement with the Washington State

Department of Natural Resources and the Washington State Department of Ecology.

In 1992, the Tribes, Ferry County and Okanogan County entered into an Intergovernmental Land

Use Planning Agreement (ILUPA) which provided for resolution of land use conflicts for private lands

Tribes and the counties agreed on permit conditions for over two hundred developments and land use

and a joint permit process for lands within Reservation boundaries. As a result of the agreement, the

changes within the Ferry County side of the Reservation. In 1997, Ferry County unilaterally withdrew

from the agreement, which remains in effect between the Tribes and Okanogan County.

Ferry County does not fund, participate in, or assist in the management or development of natural

resources or wildlife within the Reserve. Land use plans for Ferry County treat the Reserve no differently

than other rural areas within the county. It provides no zoning controls comparable to those of the Tribes.

Land Use and Development Code

In November 1978, the Colville Business Council

enacted an Interim Land Use and

Development Ordinance. In 1988, following an extensive resource inventory, data collection, and public

meetings, the Council adopted a Comprehensive Plan for the Reservation. The Plan requires

environmental and cultural review of all proposed development within the Reservation.

Prior to the adoption of the Land Use and Development Code in 1992, the Tribes issued public

notices and held public meetings to solicit comments from both Indian and non-Indian communities. Land

planning efforts included participation by the Reservation community and county governments.

residential, special requirement, rural, forestry, game reserve, and wilderness. The zones set forth

different levels of development and regulation consistent with the community values established in the

The Code established zoning within the Reservation, including commercial, industrial,

Comprehensive Plan.

The Colville Business Council is the 14-member governing body of the Colville Confederated Tribes, with duties established by the

Colville Tribal Constitution, Article II - Governing Body.

See Page 9 for a description of the IRMP process.

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6 CCAR ___

The Code requires all persons proposing subdivision and development within the Reservation,

including the Reserve, to apply for a permit through the land use review process. Proposed land use

activities are reviewed and permits are issued by the Colville Planning Department to ensure

compatibility with the Code. There is provision for review of adverse decisions by the Land Use Review

review in Tribal Court, a constitutionally separate branch of tribal government.

Board. Individuals questioning an appeal by the Land Use Review Board decision may seek judicial

The Tribes permit a wide variety of development in highly populated areas of the Reservation

having an adequate infrastructure. Some uses in less populated areas are severely restricted. In order to

protect and provide for the general welfare of Reservation residents and to preserve the continued

existence of the Tribes, a balance was achieved between the interests expressed by the general public and

the protection of important cultural values. As a result, the Tribes have restricted development in certain

areas. The Reserve is one such area and remains largely uninhabited and undeveloped in conformity with

the Code.

The Tribes incorporate a holistic objective to planning based on ecosystems, watersheds, and

natural boundaries. In 1994, the Tribes adopted an Integrated Resource Management Plan (IRMP) based

on their community values. The IRMP is an interdisciplinary method of evaluating impact to ecosystems

and watersheds as a whole. The Plan has three phases, 1) data collection and analysis of past and current

natural resources, 2) drafting a management document based upon membership values and desires, and 3)

implementation and monitoring. A basic premise of the IRMP is that tribal members are experts when it

comes to the use of their land.

Hoover's Development

Daniel Hoover purchased 72.75 acres of land within the boundaries of the Reserve in 1987. The

land had been an allotment of a tribal member and was converted to fee status in 1925 under the Bureau

of Indian Affair's policy of forced fee patents.

Hoover built a residence on the property without notifying tribal officials and subdivided the land

through Ferry County, selling two 20-acre parcels to non-Indians. Each parcel was developed with a

single recreational-use cabin. One owner obtained a tribal permit to build with conditions for mitigating

the impact on wildlife. In 1991, tribal officials became aware of the non-permitted land use by Hoover

and notified him in writing of tribal land use requirements.

Hoover's remaining property consists of 32.75 acres adjoining tribally managed shorelands on

Lake Roosevelt.

In 1992, Hoover sought to develop his property further by constructing a second

residence without obtaining tribal permits. The Tribes and Ferry County attempted to resolve the

Lake Roosevelt is a lengthy man-made lake created by the construction of Grand Coulee Dam during the 1930's. The dam, in

combination with others further down the Columbia River, virtually eliminated the annual salmon runs which had been a substantial food source

for the Tribes.

Court of Appeals Reporter

6 CCAR ___

permitting issues through an intergovernmental agreement mediation process (ILUPA). The process was

cut short when Hoover sued the Tribes and Ferry County in federal court.

In December 1995, the Tribes became aware that Hoover was again attempting to subdivide his

property further, without going through the Tribes' permitting process. The proposed subdivision of four

conditional use permit. Under the Ferry County Zoning Code, it was considered a "minor sub-division,"

lots comprised a "major sub-division" under the Tribes' Land Use and Development Code and required a

requiring little review and no evaluation of how it would impact the Reserve.

The Tribes without rezoning, a variance, or conditions limiting uses on its site would not have

approved the proposed development. Hoover was notified in February 1996 that acting to subdivide, sell,

and develop lots within the Reserve without obtaining requisite tribal permits constituted a violation of

tribal law.

Hoover ignored the notice from the Tribes and submitted a final subdivision plat to Ferry County

for recording. He indicated he planned to sell lots in a shoreline housing development without applying

for approval from the Tribes.

Impact of uncontrolled fee land development with the Reserve

The population of north central Washington, including that of the Reservation, is growing rapidly.

Ferry County more than doubled its population between 1970 and 1997, according to census data.

Planning and zoning regulations were enacted by the Tribes to help address the impact of growth within

the Reservation while attempting to preserve traditional community values.

Uncontroverted credible expert testimony and scientific studies presented at the hearing strongly

indicate that unchecked increases in housing development within the Reserve will significantly adversely

impact wildlife species and native plants. Specifically, species such as deer, elk, bear, cougar, and bald

eagle are sensitive to human habitation and will decline in numbers with increased and uncontrolled

housing development. Wildlife studies show increased housing will result in fewer mule deer. Studies

also show forest and songbird species will decrease in number and bald eagles will nest further from

shorelines when nearby housing developments appear.

Uncontrolled development will increase the number of roads, traffic, and off-road activity - all of

which impact native wildlife and plants. Roads cause increased runoff and dust, which impact streams

and watersheds. Roads divide wildlife corridors and create barriers to migration routes. Roads kill natural

plant life and spread non-native noxious weeds, which crowd out native plants.

Increasing housing without land use controls will result in more septic systems, noise, dust,

artificial lighting, wood use, smoke, and pets in natural areas. These factors negatively impact wildlife

habitation.

because the fee lands are disproportionately located in low-lying areas adjoining water. Low elevation

riparian lands within the Reserve are important components of the arid ecosystems on which wildlife

Court of Appeals Reporter

The impact resulting from lack of land use control on fee lands within the Reserve is magnified

6 CCAR ___

depend, and are the most important winter range for deer and elk.

Native plants and animals within the Reserve are essential to ceremonies and other traditions of

the Tribes. Tribal cultural practices such as camping, hunting, vision quests, and gathering medicines are

not compatible with uncontrolled development and increased housing density. Uncontrolled development

places at risk important components of the Tribes' cultural and religious traditions.

Unregulated development of fee lands within the Reserve would significant impact adjoining

tribal trust lands. Increased car exhaust, wood smoke, water use, waste discharge, human activity, traffic,

dust, garbage, and erosion from grading and construction, do not stop at fee land boundaries. The inability

of the Tribes to apply comprehensive planning regulations to fee lands within the Reserve will

substantially impair the Tribes' ability to preserve the general character, cultural and religious values, and

natural resources associated with the Reserve.

The inability of the Tribes to fairly and impartially enforce comprehensive planning regulations

to all lands within the Reserve presents a clear danger to the continued cultural identity and existence of

the Tribes, and threatens the health and welfare of their members.

ISSUE

The sole issue before this court is whether real property owned by a non-Indian in fee is subject to

zoning regulations of the Tribes when the property is within a Game Reserve situated entirely within the

exterior boundaries of the Colville Confederated Tribes Reservation.

DISCUSSION OF ISSUE

The recently decided case of Atkinson Trading Co. Inc. v. Shirley et al., No. 00454 (U.S.

05/29/2001) more clearly defined the extent of jurisdiction Indian tribes possess over non-Indians on fee

lands within the exterior boundaries of Indian reservations. The United States Supreme Court continues to

hold that inherent sovereign powers of an Indian tribe do not extend to activities of non-members of the

Tribe within reservation boundaries. Atkinson, supra, does recognize the exceptions to this general rule as

set forth in Montana v. United States, 450 U.S. 544 (1981), which states, "First, (a) tribe may regulate,

through taxation, licensing, or other means, the activities of nonmembers who enter consensual

relationship with the tribe or its members, through commercial dealings, contracts, leases, or other

arrangements.…Second, (a) tribe may…exercise civil authority over the conduct of non-Indians on fee

lands within its reservation when that conduct threatens or has some direct effect on the political integrity,

the economic security, or the health or welfare of the tribe." Montana at 565.

In addition to the foregoing exceptions, the Court has long held that Indian tribes have

jurisdiction over non-Indians when expressly authorized by Congress. See Montana, 450 U.S. 544, 564,

We have closely scrutinized the facts of this case and the jurisdictional requirements determined

101 S.Ct. 1245, 1258.

by the Supreme Court in matters such as this. For the following reasons, we are of the opinion that the

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6 CCAR ___

Tribes possess the necessary authority to regulate the use of Hoover's fee land within the Reserve.

Express Delegated Authority

Federal courts have found congressional delegation of authority for tribes. See Bugenig v. Hoopa

Valley Tribe, 229 F.3d 1210, 229 F.3d 1210 (9th Cir. 10/03/2000), (hereinafter Bugenig I), and Bugenig v.

Hoopa Valley Tribe, 266 F.3d 1201 (9th Cir. 09/11/2001), (hereinafter Bugenig II), United States v.

Mazurie, 419 U.S. 544 (1975), Rice v. Rehner, 463 U.S. 713 (1983). The statutory language delegating

the requisite authority was viewed by Justice White, writing in Brendale v. Confederated Tribes and

Bands of the Yakima Indian Nation, 492 U.S. 408 (1989), wherein he cited two statutes where Congress

expressly delegated authority to Indian Tribes. The first is 18 U.S.C. §1161, which authorizes tribes to

make laws regarding liquor sales in "Indian Country." The Act defines Indian Country as including "all

lands within the limits of any Indian reservation under the jurisdiction of the United States government,

notwithstanding the issuance of any patent, and including rights-of-way running through reservations."

The second statute cited by Justice White is the Clean Water Act, 33 U.S.C. §1377 et seq. It

authorizes Indian tribes to be treated as states in setting clean water standards for federal Indian

reservations. The terms "federal Indian reservation" is defined as "all land within the limits of any Indian

reservation under the jurisdiction of the United States government, notwithstanding the issuance of any

patent, and including rights-of-way running through the reservation." 33 U.S.C. §1377(h).

Bugenig I labeled the phrase "notwithstanding the issuance of any patent…" as the "gold

standard" in finding the requisite delegation of authority. Bugenig v. Hoopa Valley Tribe, 229 F.3d 1210,

1219 (9th Cir. 2000). The Clean Water Act meets the "gold standard" because it includes the requisite

phrase. The Act expressly delegates congressional authority to those Indian tribes able to meet certain

requirements. Those tribes meeting the requirements have authority to establish water quality standards

(Section 1313) and to determine standards for rural septic systems for the entire reservation, including fee

establish, for approval by the Administrator, procedures, processes, and methods (including land use

lands owned by non-Indians (Section 1254(q)). The Act includes direction for the state or tribe to

requirements) to control sources of water pollution. Section 1324(a)(2).

The Tribes, having met requirements to be "treated as a state" under the Clean Water Act,

possess the equivalent of state jurisdiction for the limited purpose of regulating clean water use for all

lands within the exterior boundaries of the Colville Reservation, including non-Indian fee lands. The

explicit authority of the Clean Water Act confers jurisdiction upon the Tribes to regulate water quality use

of non-member fee lands within the boundaries of the Reserve regarding water quality.

The Court in Bugenig v. Hoopa Valley Tribal Council, et al., 229 F.3d 1210 (9th Cir. 2001) or

In accordance with the requirements of 33 U.S.C. 1324(a)(2), the Tribes have adopted a land use policy implemented through their

zoning ordinance. The provisions of the ordinance affecting water quality within the Reservation are therefore valid and enforceable against all

persons within the exterior boundaries of the Reservation. As such, the Tribes are able to regulate water quality standards affecting Hoover's

property within the Reservation.

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6 CCAR ___

Bugenig II, noted that United States v. Mazurie, supra, "instructs that any determination that Congress

delegated to the Tribe authority…involves two distinct questions. First, we must be sure that

Congress…actually delegated regulatory authority to the Tribe. Second, if we conclude that Congress did

delegate such authority, we must analyze whether exercising that delegation was lawful."

reservations to tribes meeting certain requirements. Challenges to its authority to do so have been

rebuffed. See Montana v. United States Environmental Protection Agency, 137 F.3d 1135 (9th Cir. 1998),

Congress has clearly delegated its authority to regulate water quality on federal Indian

and City of Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996).

The Tribes received authority from the federal Environmental Protection Agency in 1991 to enact

water quality regulations for the entire reservation in accordance with the provisions of the Tribes'

Constitution and Codes. This included fee lands owned by non-Indians within the boundaries of the

Reservation. The Tribes were delegated authority to zone for control of water quality standards over

Indians and non-Indians on the Colville Indian Reservation. We would be well advised to allow the

Tribes to exercise zoning controls over land use even as they are appropriately exercising authority over

CCAR 39 (Colville Confederated 02/22/1991). (recognizing Tribes' authority to require compliance with

the Tribes' Land Use Ordinance by a non-Indian business on the Reservation) The Cavenham decision

water quality on their Reservation. Cavenham Forest Products, Inc. v. Colville Confederated Tribes, 1

was based upon general principles of tribal sovereignty and applicability of the tests in the Montana case.

Yet, there is an additional consideration in determining whether the Tribes' jurisdiction to

regulate non-member fee land within the Reserve goes beyond the Clean Water Act. For this, we look to

the Montana exceptions, and actions of the United States government in determining the character of

Reserve.

The Montana Exceptions

The first Montana exception (consensual relationships) is not applicable to this case.

The second exception authorizes tribal regulation of "the conduct of non-Indians on fee lands

within its reservation when that conduct threatens or has some direct effect on the political integrity, the

economic security, or the health or welfare of the tribe." Montana at 565. The findings of fact show

clearly that the requirements of the second exception have been fulfilled inasmuch as Hoover's proposed

conduct (that of developing land for construction of additional residences within the Reserve) would

affect the health and welfare of the members of the Tribes.

Health and Welfare

The average annual income of tribal members is thousands of dollars below the national poverty

level and their employment rate is near fifty percent.

Reduced economic circumstances and cultural

Annual income is $7561 and the unemployment rate is 48%. Finding of Fact No. 41.

Court of Appeals Reporter

6 CCAR ___

traditions cause many members to depend on subsistence hunting of large game animals, primarily deer

and elk. The dependence upon subsistence hunting is greater now than before construction of Grand

Coulee Dam that, together with the construction of other dams downstream on the Columbia River,

destroyed the salmon runs which had previously provided a substantial subsistence food source.

any increase in the number of homes within the Reserve would directly affect the deer and elk population.

Were he granted permission to construct his development, the Tribes would have no ground to prevent

Hoover's planned development would have an impact on the ecology and environment because

other non-member fee owners from developing their properties within the Reserve. It is clear from the

evidence adduced at trial that the Tribes had little choice in preventing Hoover from proceeding. They

either had to allow him and others to build in the Reserve, and thus destroy or greatly diminish an

important, necessary food and culture source, or prevent him from building and thus preserve a valuable

source of subsistence hunting and cultural participation.

In addition to game animals, tribal members use many varieties of plants within the Reserve as a

food source. The importance of the plants lies in their use for maintaining and preserving cultural

traditions

Health and Welfare - Spirituality and Cultural Preservation

The trial court found

Plants and animals preserved through comprehensive management in the

reserve are not only a source of food, but also play a vital and

irreplaceable role in the cultural and religious life of Colville people.

Annual medicine dances, root feasts, and ceremonies of the Longhouse

religion all incorporate natural foods such as deer and elk meat and the

roots and berries found in the Hellsgate Reserve. The ceremonies play an

integral role in the current well being and future survival of Colville

people, both individually and as a tribal entity. Finding of Fact 36.

Bugenig II is the only federal court in our experience to refer to the spiritual health of a tribe. It is

well known in Indian Country that spirituality is a constant presence within Indian tribes. Meetings and

gatherings all begin with prayers of gratitude to the Creator. The culture, the religion, the ceremonies - all

contribute to the spiritual health of a tribe. To approve a planned development detrimental to any of these

things is to diminish the spiritual health of the Tribes and its members.

The spiritual health of the American Indian is bound with the earth. Their identity as a people

becomes invisible in the city, away from nature. It is the land and the animals which renew and sustain

by Luther Standing Bear when he said:

their vigor and spiritual health. The nature of the spirituality of the American Indian was well-expressed

Nothing the Great Mystery placed in the land of the Indian pleased the

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6 CCAR ___

white man, and nothing escaped his transforming hand. Wherever forests

have not been mowed down, wherever the animal is recessed in their

quest for quiet protection, wherever the earth is not bereft of four footed

life - that to him is an 'unbroken wilderness.'

But, because for the Lakota there was no wilderness, because nature was

not dangerous but hospitable, not forbidding but friendly, Lakota

philosophy was healthy--free from fear and dogmatism. And here I find

the great distinction between the faith of the Indian and the white man.

Indian faith sought the harmony of man with his surroundings, the other

sought the dominance of surroundings.

In sharing, in loving all and everything, one people naturally found a due

portion of the thing they sought, while, in fearing, the other found need

of conquest.

For one man the world was full of beauty; for the other it was a place of

sin and ugliness to be endured until he went to another world, there to

become a creature of wings, half-man and half-bird.

Forever one man directed this Mystery to change the world He made;

forever this man pleaded with Him to chastise his wicked ones; and

forever, he implored his God to send His light to earth. Small wonder

this man could not understand the other.

But the old Lakota was wise. He knew that man's heart, away from

nature, becomes hard; he knew that lack of respect for growing, living

things soon led to his lack of respect for growing, living things soon led

to his lack of respect for humans, too. So he kept his children close to

nature's softening influence.

These words describe not only the faith and spirituality of the Lakota, but of all Indian peoples. It

is the "harmony of man with his surroundings" that the Tribes seek in maintaining the Reserve in a state

compatible with nature.

Native American Wisdom, 1991, published by Classic Wisdom New World Library, compiled by Kent Nerburn, Ph.D. and Louise

Mengelkoch, M.A. The quotation is on pages 47 and 48.

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6 CCAR ___

The evidence is highly persuasive that the encroachment of human habitation would have a

detrimental effect on the animals, plants, and herbs used for sustenance, medicinal, and ceremonial

purposes - the continued existence of which is vital to the spiritual health of the Tribes and their members.

Implicit Authority

The United States Supreme Court has clearly stated that, aside from the Montana exceptions,

Indian tribes may regulate non-member activities on reservations only when Congress has explicitly

granted the tribes explicit authority to do so. We believe this approach unduly restrictive because it

ignores the clear reality of circumstantial evidence. In almost all matters, courts should look at the totality

of circumstances rather than seeking a specific mantra (i.e. "notwithstanding the issuance of any

patent")

and we see no rational reason to do otherwise here.

The Tribes' action in denying Hoover permission to develop his properties can be affirmed, at

least in part, because of its authority under the Clean Water Act. Further analysis is instructive.

The Pacific Northwest Electric Power Planning and Conservation Act

Particularly germane to this case are the millions of dollars the federal government has provided

the Tribes to purchase 9,272 acres of fee lands within the Reserve for the purpose of wildlife habitat

enhancement.

The money for repurchase of fee lands within the Reserve

was appropriated by Congress and

distributed through the Bonneville Power Administration, an agency of the federal government.

Congressional funding and authorization of this program is through the Pacific Northwest Electric Power

Planning and Conservation Act of 1984, 16 U.S.C. 839 et seq. (hereinafter PNEPPCA).

The Act authorizes development of "regional plans and programs related to energy conservation,

renewable resources, other resources, and protecting, mitigating, and enhancing fish and wildlife

resources…." 16 U.S.C. §839(3)(A).

See Bugenig I, at page 1219.

It should be noted that the repurchase monies have been appropriated for only lands within the Reserve. There is no record in this

case of federal monies being used for repurchase of lands outside the Reserve but within the Reservation.

Court of Appeals Reporter

6 CCAR ___

The Reserve has been an ideal candidate to satisfy one of the Act's intended goals - the

enhancement of fish and wildlife habitat. Funds have been appropriated through PNEPPCA to the Tribes

for the purpose of protecting "renewable resources…and…enhancing fish and wildlife resources" within

the Reserve. In accordance with a five-party agreement

with federal agencies and the Spokane Tribe of

Indians, the Tribes retain primary management authority of the portions of Lake Roosevelt within the

Colville Indian Reservation. This includes Hoover's shoreline property.

Zoning Conflicts

The Clean Water Act expressly authorizes the Tribes to regulate water quality and sewer systems

on the reservation, including the Reserve. We have found no other express congressional authority for the

Tribes to regulate non-member fee lands. Arguably, this means all other zoning authority to regulate non-

County unilaterally withdrew from participation in the successful Interim Land Use Planning Agreement

member fee lands within the Reserve resides with Ferry County. We see this as unworkable. Ferry

when Hoover filed his complaint in federal court. Ferry County has since approved development within

the Reserve that is incompatible with the goals of the Tribes and federal government in maintaining the

area in its natural pristine condition. It is well known in Indian Country that county governments do not,

as a general rule, cooperate with Indian Tribes and do not provide the same level of services within

reservations as they do in other areas of a county. We do not believe it realistic to expect Ferry County

Commissioners to be sympathetic with the Tribes' goal to regulate development within the Reserve in

accordance with its land use regulations.

What then is the role of Ferry County regarding its zoning regulations applicable within the

Reserve as to lot size and other building regulations? What is its interest in regulating zoning within a

hundred thousand-acre game reserve, and how can it effectively adhere to its comprehensive plan when it

does not have the authority to issue water quality regulations?

Clearly, the interests of Ferry County within the Reserve are minimal and are insignificant

compared to those of the Tribes. The Tribes have multiple interests in the Reserve, not the least of which

is retaining its culture, physical and spiritual health and welfare.

Again, we are of the opinion we should look at the totality of circumstances. We see the

circumstances as this - the Tribes have express delegated authority to regulate water quality within the

Reservation. The Tribes have enacted a Comprehensive Land Use and Development Code that is neutral

in its application to Indians and non-Indians. The Tribes have closed the Reserve to unrestricted

the cultural and religious life of Colville people." The large game animals within the Reserve are an

development and actively work to enhance its wildlife. The Reserve has a "vital and irreplaceable role in

important food source for the Colville people. Finally, Congress has appropriated millions of dollars for

The Lake Roosevelt Cooperative Management Agreement participating parties consist of the National Park Service, the Bureau of

Reclamation, the Bureau of Indian Affairs, the Spokane Tribe of Indians, and the Confederated Tribes of the Colville Indian Reservation.

Court of Appeals Reporter

6 CCAR ___

purchase of fee lands within the Reserve in order to help maintain the area in a natural state.

What are the interests of Ferry County vis-à-vis the Tribe? The Reserve is comprised of over one

hundred thousand acres with less than twenty-five residential structures within it. Access to these

permanent and summer homes is by a single road that traverses the length of the reserve. The Colville

Colville Tribal Emergency Services.

Tribal Police Department provides police protection. Emergency medical services are provided by the

Most of the structures, including Hoover's proposed development, are at or near the end of the

road. Other than occasional road maintenance and sporadic police protection, the County appears to have

little presence or interest in the Reserve. It does not appear to have any interest in determining the

character of the land and certainly none in preserving the pristine nature of the land.

Characterization of the Reserve

The Tribes' ancestors and members have sustained themselves from the land for thousands of

years. They harvested the roots and the berries from the plants for food and medicine; they caught salmon

the salmon long gone, the Tribes acquired fifty head of elk to establish a large game animal to supplement

the deer herds.

from the Columbia River, and they killed deer for meat. In 1977, with the Columbia River dammed and

The elk were released in the Hellsgate area (the Reserve) because it was best suited to survival of

the herd. This is the first record of initial efforts to characterize the area as a game reserve. The herd had

now grown to over eight hundred animals and is subject to a closely regulated annual hunt.

In addition to introducing the elk herd, the Tribes and the federal government, for over ten years,

have participated in a land buy-back program within the Reserve. The purpose of the program is to

purchase fee lands and return them to their natural state. Over nine thousand acres have been purchased

for this purpose- primarily with federal funds. The Tribes and the federal government are in the midst of a

long-range plan to define and characterize the area as a natural habitat for plants and animals.

The Tribes, in addition to the buy-back program, have developed land use regulations for the

Reserve. Public notice and public hearings were held prior to the adoption of the regulations. An appeals

process with access to the tribal court was allowed. The regulations apply equally to tribal members and

non-members - there is no preferential treatment.

The record is devoid of Ferry County's long-range plans for fee lands within the Reserve.

However, a letter from the Ferry County Prosecuting Attorney dated August 12, 1991

was written in

response to the Tribes' request for comments on its proposed Land Use and Development Code. It implies

the County considered Hoover's property, and that of other non-Indians near it, to be an "open area."

While encouraging an intergovernmental agreement be finalized (which subsequently occurred in the

Exhibit 90 of the evidence introduced at trial.

Court of Appeals Reporter

6 CCAR ___

form of ILUPA), the Prosecuting Attorney urged the Tribes not to adopt the proposed Code as "there may

be areas where enactments by other entities afford better protection of the environment and more orderly

growth management."

was written.

We have seen no evidence that this has occurred in the ten years since the letter

We deduce from the record that there will be no additional land becoming available for

development within the Reserve and that more fee lands will be purchased from non-Indians to be

returned to their natural state. The result of this is predictable - services provided by Ferry County to nonIndians owning property in the Reserve will be diminished, along with the County's interest in the

property. This will have little impact on non-Indians in the area, as public services such as fire and

ambulance are being provided by the Tribes.

CONCLUSION

The trial court correctly entered its Order permanently enjoining Daniel Hoover and those acting

in concert with him from developing, improving, or otherwise changing the land use of his property

within the Hellsgate Reserve without first obtaining the necessary permits from the Colville Tribes in

conformity with the provisions of the Colville Land Use and Development Code. The order is

AFFIRMED.

Robert SIMMONS, Appellant,

vs.

COLVILLE CONFEDERATED TRIBES and

J. D. SIMMONS, Appellees.

Case Number AP99-010, 3 CTCR 45

6 CCAR 30

[Theodore J. Schott, Attorney, for Appellant/father; David Ward, Office of the Prosecuting Attorney, for Appellee.

Ucho M. Umuolo, Office of the Public Defender, for Appellee/ Joseph D. Simmons.

Trial Court Case Number JV99-1900 to JV99-19006]

Argued May 19, 2000. Decided April 15, 2002.

Before Presiding Justice Dupris, Associate Justice Nelson and Associate Justice Pascal.

Dupris, Chief Justice. for the panel.

Ibid.

Court of Appeals Reporter

6 CCAR ___

SUMMARY OF PROCEEDINGS

On February 20, 1998, The Colville Tribes (hereinafter Tribes) was notified that the federal

government and Washington State were declining to prosecute the Appellee, Joseph D. Simmons and that

the case was more appropriately handled in the Colville Tribal Court.

On June 4, 1998, the Tribes filed a criminal complaint in the Colville Tribal Court alleging that

Joseph Dale Simmons committed certain offenses between the period of September 1995 through June

1996. Mr. J.D. Simmons’ birth date is August 1, 1979. At the time the complaint was filed, he was

eighteen (18) years of age. He was sixteen (16) years old at the time of alleged offenses.

On April 30, 1999, the Chief Judge, Steve Aycock, ruled that the Colville Tribal Adult Court

(hereinafter “Adult Court”) did not have jurisdiction over Mr. Joseph D. Simmons because Mr. J.D.

to the Colville Tribal Juvenile Court (Juvenile Court). See Order Transferring Case to Juvenile Court

Simmons was a minor at the time of the alleged offenses. Chief Judge Aycock then transferred the matter

For Lack of Adult Criminal Court Jurisdiction.

a transfer proceeding in the Juvenile Court pursuant to CTC §§ 5-2-142 through 5-2-145

The Chief Judge indicated that the Tribes could initiate

through an

amended Petition.

On June 28, 1999, the Tribes filed a Petition in the Juvenile Court pursuant to CTC § 5-2-196

alleging one count of Indecent Liberties and one count of Abduction against J.D. Simmons.

On July 28, 1999, the Appellant Robert Simmons, father of J.D. Simmons, filed a Motion to

Dismiss the Juvenile Court case for lack of subject matter jurisdiction and lack of jurisdiction to transfer

the matter back to Adult Court. All of the parties joined in this Motion and filed a Stipulation to the

granting of the Motion.

On August 13, 1999 by Judge Pro-Tem Gabourie, held that the Juvenile Court had jurisdiction

and transferred it back to the Adult Court. On September 22, 1999 Judge Gabourie reaffirmed his original

order that the Juvenile Court had subject matter jurisdiction and further, the Colville Tribal Court

retained continuing jurisdiction over the case.

Appellant filed his Notice of Appeal on September 22, 1999, appealing the Juvenile Court’s

There is no “Colville Tribal Adult Court” specifically designated in the Colville Tribal Constitution or Law and Order Code. We use this term

to distinguish it from the Tribes’ Juvenile Court.

From a review of the Order it appears Chief Judge Aycock entered his ruling verbally on the record on April 30, 1999 but didn’t sign the

Order until June 24, 1999. For convenience we will refer to this Order as the April 30, 1999 Order.

The relevant sections of the Code actually start at CTC§5-2-141, Transfer to Adult Court: The presenting officer or the minor may file a

petition requesting the Juvenile Court to transfer the minor to adult Tribal Court if the minor is fourteen (14) years of age or older and is alleged

to have committed an act that would have been considered an offense under this Code, if committed by an adult.

Sections 5-2-142 through 5-2-1445 set out when a hearing is to be held on the petition; factors for the judge to consider regarding

whether to transfer the case; circumstances for transferring the case; and what is to be in the order if the transfer request is granted.

Court of Appeals Reporter

6 CCAR ___

rulings of August 13, 1999 and September 22, 1999. The Appellant, Robert Simmons, father of the

Appellee, Joseph D. Simmons, raised the following issues on Appeal:

matter jurisdiction.

Whether the Juvenile Court erred by transferring the case back to the adult Court,

or in the alternative whether the Juvenile Court could transfer the case back to the adult

Court sua sponte.

Whether the Juvenile Court is precluded from transferring the matter back to the

adult Court.

Briefs were filed and oral arguments were heard on May 19, 2000.

Whether the Juvenile Court erred by holding the Court had continuing

jurisdiction over the alleged minor.

Whether the Juvenile Court erred by not dismissing the case for lack of subject

This Court, after reviewing the arguments of the parties, the record and the law, finds herein that

the issue of jurisdiction was properly raised in the Adult Court, and the decision to deny jurisdiction in

the first matter was erroneous for reasons stated herein.

ISSUE

The one issue before this Court is: Who has jurisdiction over a defendant who is alleged to have

committed an offense as a minor and who has turned an adult over the age of eighteen (18) years within

the time of the statute of limitations for the offenses alleged?

This is an issue of first impression.

STANDARD OF REVIEW

The issue before the Court is a question of law. There are no disputed material facts involved at

this stage of the case. For those reasons our review is de novo. See, Palmer v. Millard, et al., 2 CTCR 14,

(1996), Naff v. CCT, 2 CTCR 8, 22 ILR 6032, 2 CCAR 50 (1995).

DISCUSSION

In its April 30, 1999 hearing the Adult Court specifically addressed the issue: “Does the Tribal

adult criminal court have jurisdiction over a defendant where the acts alleged occurred prior to the 18th

birthday of the defendant?” It held no, it did not have jurisdiction. The Adult Court predicated its

decision first on the Purpose section of the Juvenile Code, Chapter 5-2, which encourages rehabilitation

of juvenile offenders as well as community safety. Order Transferring Case to Juvenile Court For Lack

of Adult Criminal Court Jurisdiction, April 30, 1999, signed June 24, 1999, at pp 2-3. The Court found

The Panel discussed the issues raised by the parties as well as the relevant orders at the trial level. It was determined that the real issue

stemmed from Chief Judge Aycock’s initial order April 30, 1999 in which the Adult Court declined jurisdiction over the defendant J.D.

Simmons. An answer to this question settles all the issues raised in the Appellant’s Notice of Appeal.

Court of Appeals Reporter

6 CCAR ___

that, under the Tribes’ Criminal Code, CTC, Chapter 2, an adult criminal case may be closed even if

rehabilitation did not occur. Id.

The Chief Judge then set out the definitions of “juvenile offender”

and “delinquent act.”

These sections, he found, gave weight to Mr. J.D. Simmons’s argument that the alleged offenses were

supposed to have occurred while he was a minor, and, therefore, were alleged delinquent acts of a

juvenile offender. The Chief Judge pointed out that Mr. J.D. Simmons was not now, nor would he ever

be under eighteen years of age at the time of the filing of the criminal complaints against him, either in

Adult Court or if filed thereafter in Juvenile Court.

Finally, the Adult Court found that it was the time of the act that determined which Court had

jurisdiction. Id. at page 4. The Court resolved the issue of the alleged offender being over eighteen (18)

years of age and the Juvenile Court still having jurisdiction by (1) relying on this Court’s holding in In re

which the Court of Appeals held jurisdiction of a Minor-In-Need-Of-Care could extend beyond the age of

18); and (2) finding that, as a matter of law, the Juvenile Court could retain jurisdiction over an alleged

The Welfare of S.M.C., 2 CTCR 21, 24 ILR 6016, 3 CCAR 52 (1996) (a Minor-In-Need-Of-Care case in

offender until the statute of limitations had run on the alleged offense. The Adult Court held that this is a

reasonable interpretation of conflicting statutes and liberally construes the Code, and such an

interpretation would foster the purposes of the Juvenile Code to provide rehabilitation and provide for the

community’s safety. The Adult Court transferred the case to the Juvenile Court with instructions to the

plaintiff to conform its pleadings with the requirements of the Juvenile Code.

Once the Tribes filed a complaint consistent with the requirements of the Juvenile Code in

Juvenile Court, the Appellant herein, Robert Simmons, father of the alleged offender, Joseph D.

Juvenile Court never had acquired jurisdiction over J.D. Simmons when he was a juvenile, so it did not

Simmons, filed a Motion to Dismiss for lack of subject matter jurisdiction. R. Simmons argued that the

have continuing jurisdiction. R. Simmons argued further that the Juvenile Court did not have the requisite

jurisdiction to transfer the “minor” to Adult Court because J.D. Simmons was never a “minor” under the

jurisdiction of the Juvenile Court. All of the parties joined in R. Simmons’s Motion to Dismiss for Lack

of Subject Matter Jurisdiction, and filed a stipulation to that effect in Juvenile Court.

Even though the Adult Court held it did not have jurisdiction over the case, the Juvenile Court

held it had continuing jurisdiction based on the Adult Court acquiring proper jurisdiction in the first filing

against J.D. Simmons, which the Adult Court transferred to the Juvenile Court. The Juvenile Court found

it did not lack subject matter jurisdiction and transferred the case to the Adult Court, sua sponte. It is from

“A person who commits a delinquent act prior to his eighteenth (18th) birthday.” CTC §5-2-38.

“An act, which if committed by an adult, is designated a crime under the Colville Tribal Law and Order Code.” CTC §5-2-35.

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6 CCAR ___

these orders the parties are before us in this case.

The Colville Tribal Juvenile Code

The crux of this case is the Adult Court’s decision that the Tribal Juvenile Code applied to the

Appellee J.D. Simmons, an adult. The Adult Court based this decision on: (1) the Purpose section of the

Juvenile Code, §5-2-1, which directs the Courts to liberally construe its purposes, inter alia, of providing

rehabilitation to the juvenile as well as protection to the community; (2) the definitions of a “juvenile

offender” and “delinquent act” in the context of CTC §5-2-40(c) to find the Juvenile Court has

continuing jurisdiction over a person over eighteen years of age as a defined “minor;”

and (3) finding

that the “continuing jurisdiction” could refer to jurisdiction over the alleged offense, and, therefore, the

Juvenile Court could continue it until the statute of limitations ran on the alleged offense.

The Adult Court supported its position with In Re S.M.C., supra, in which the Court of Appeals

found that the Juvenile Court could decide it had continuing jurisdiction over a minor-in-need-of-care

who had turned eighteen years of age.

No to detract from the good intentions of the Adult Court, such an interpretation strains the

boundaries of statutory construction. The Juvenile Code had three (3) parts: (1) two general sections that

refer to both minor-in-need-of-cares and juvenile offenders; CTC §§ 5-2-1 to 5-2-140, and CTC §§ 5-2410 to 5-2-415; (2) a section for juvenile offenders, CTC §§ 5-2-141 to 5-2-211; and (3) a section for

minors-in-need-of-care, CTC §§ 5-2-240 to 5-2-380. Although it is not a very cohesive Code, its purposes

and procedures can be gleaned from its provisions.

The Juvenile Code is specific in its general rule that it applies to those under the age of eighteen

(18) years. See CTC § 5-2-31 (“Adult” is a person 18 years or older, or otherwise emancipated); CTC § 550

2-38 (“Juvenile Offender” as a person who commits a delinquent act before his 18th birthday) ; CTC §

5-2-40; CTC § 5-2-140, Original Jurisdiction; CTC § 5-2-141, Transfer to Adult Court; and CTC § 5-2-

The Panel is not going to address the issue of lack of subject matter jurisdiction in the contexts of the Juvenile Court orders because of its

ruling on the main issue identified, supra.

CTC, Section 5-2-40 states: Minor: (a) A person under eighteen (18) years of age who is not emancipated; (b) A person eighteen (10) years

of age or older concerning whom proceedings are commenced in Juvenile Court prior to his eighteenth birthday; (c) A person eighteen (10) years

of age or older who is under the continuing jurisdiction of the Juvenile Court.

The Adult Court offers no statutory authority nor case law to support such an interpretation of the applicability of the statute of limitations in

determining juvenile jurisdiction. We have not found any either.

The Adult Court reasoned that this definition meant such charges could not be brought in Adult Court. We don’t read this section as this

preclusive. For example, the Juvenile Code allows any juvenile fourteen (14) years of age or older to be transferred to Adult Court for

prosecution in certain circumstances (CTC § 5-2-141), which does not negate Juvenile Court jurisdiction over the offender in the beginning, or in

the case of declination of the transfer by the Adult Court.

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208, Dispositional Alternatives .

The Adult Court’s analysis of “continuing jurisdiction” found in CTC § 5-2-40(c) does not

comport with the plain meaning of the term.

that the Juvenile Court would have jurisdiction over the offense until the statute of limitations ran, as

Rather, it creates a new definition based on the premise

opposed to the offender. The plain meaning of “continuing jurisdiction” is: “A doctrine... by which a

court which has once acquired jurisdiction continues to possess it for purposes of amending and

modifying its orders therein.” Black’s Law Dictionary, 169 (5th Ed. 1983). There is no reason to reinvent

the wheel on this doctrine. There is no tribal custom or tradition offered from either trial courts nor any of

the parties which would state otherwise.

The unraveling of the Adult Court’s reasoning starts with its reliance on the Purpose section of

the Juvenile Code to the exclusion of all of the other applicable laws in the Juvenile Code. In Re S.M.C.,

supra, is distinguishable. The Juvenile Court was already exercising jurisdiction over the person when

she was a minor as defined by the Code. The question before both the Juvenile Court and the Court of

Appeals centered on the interpretation of “Minor” that referred to continuing jurisdiction after she turned

eighteen (18). In this case the Juvenile Court never exercised jurisdiction over the Appellee J.D. Simmons

when he was under eighteen (18). There was no jurisdiction to continue.

The analysis unravels further when it attaches “continuing jurisdiction” to the offense rather than

the alleged offender. No legal reasoning is given to support this approach. Such an approach would leave

CTC §5-2-208, Dispositional Alternatives, which specifically precludes orders from extending beyond the

the Tribe without a remedy even if the alleged offender were found to have committed the offense. See

offender’s eighteenth birthday. The language in this statutory provision is not ambiguous.

Based on the foregoing we hold the Adult Court’s finding that the Juvenile Court had jurisdiction

herein is erroneous and should be reversed.

Rule of Law

By its rulings, the Adult Court put the Tribes in a Catch-22 situation: it dismissed the Tribes’

complaints against Appellee Simmons for lack of jurisdiction, and held the Juvenile Court had the

jurisdiction to hear the matter and ask that it be transferred back to the Adult Court. Although the parties’

attempt to dismiss the cases from the Juvenile Court were unsuccessful, the end result was the same. The

Juvenile Court held that its jurisdiction was based on the continuing proper jurisdiction of the Adult

CTC §5-2-208(b) states “The dispositional orders [for juvenile offenders] are to be in effect for the time limit set by the Juvenile Court, but

no order shall continue after the minor reaches the age of eighteen (18) years of age .” [emphasis added]

CTC § 1-1-7(b), Principles of Construction. The following principles of construction will apply to all of the Law and Order Code unless a

different construction is obviously intended:... (b) Words shall be given their plain meaning and technical words shall be given their usually

understood meaning where no other meaning is specified.

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Court.

Yet the Adult Court held it didn’t have any jurisdiction.

The one question left in this analysis is: does the Adult Court has jurisdiction over a defendant

charged with alleged offenses that occurred while the defendant was still a minor, but for which the

statute of limitations has not run? We hold yes, it does.

The two rules of law on this issue are: (1) the federal rule, in which juvenile courts would retain

jurisdiction in cases such as the one herein ; and (2) the Washington State rule, in which jurisdiction

attaches at the time of the filing of the complaint, and not at the age of the defendant at the time of the

offense . Washington follows the majority rule. See 89 A.L.R. 2d 506 (1963).

The Adult Court reasoned the majority rule did not apply in the Colville Tribal Courts because it

was contrary to the Tribes’ policy statement in the Juvenile Code’s Purpose section, § 5-2-1. It is an

insular view of the whole Law and Order Code. It has other relevant chapters with their own purposes.

The purpose of the Criminal Code, Chapter 3, cannot be ignored. Even though it is not stated as

specifically as that in the Juvenile Code, if read as a whole, one perceives an intent of the Tribes to

prohibit criminal behavior, and to impose penalties for the commission thereof. The Juvenile Code

supports this purpose in its sections regarding transferring juvenile offenders to Adult Court. One purpose

is not necessarily more important than the other.

The general provisions of the Law and Order Code are specific about who is to be considered an

“adult”

unambiguous. The Code is unambiguous about its criminal jurisdiction.

and who is a “child or minor.”

The distinction is unambiguous. The distinction is

The rule of law that the Court’s

One of the issues in the Notice of Appeal herein is whether the Juvenile Court is a subordinate or equal Court to the Adult Court. The issue

was framed to indicate that the Juvenile Court judge overruled the Adult Court’s ruling on jurisdiction. We will not address the status of the two

Courts in this opinion because of our rulings on jurisdiction. That is another question for another case.

The federal laws governing the issue are mainly statutory. See 18 U.S.C. §§ 5031 et seq. It is noted that even in the federal law, jurisdiction

is extended only to an offender’s twenty-first (21st) birthday. Id. At § 5031.

See, State v. Ring, 54 Wash. 2d 250 (1959), State v. Melvin, 144 Wash. 687 (1927), and State v.. Calderon, 102 Wash. 2d 348 (1984).

CTC § 1-1-350: Adult: The term “adult” as used in this Code shall mean a person 18 years of age

or older.

CTC § 1-1-353: Child or Minor: The term “child” or “minor” as used in this Code shall mean any

human of less than 18 years of age unless a lesser age is specified.

CTC § 1-1-431(b): Acts Submitting Person to Jurisdiction of Tribal Court. (b): The Colville

Confederated Tribes shall [have][sic] criminal jurisdiction over: (1) All crimes committed by any

Indian within the boundaries of the Colville Reservation; and (2) To the greatest extent permissible by

law, all violations of the Colville Fish and Wildlife Chapter of this Code committed by a member of the

Colville Tribes outside the Colville Reservation.

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6 CCAR ___

look for guidance to State law in the absence of tribal law is not ambiguous.

The exception to this rule

is if the State law is contrary to tribal policy or law. The Adult Court found this so. Reasonable men may

differ. We review de novo and find, as a matter of law, the Adult Court has not articulated a legal reason

to apply the exception.

To the contrary, applying the Washington rule, i.e., jurisdiction attaches at the time the complaint

is filed, promotes the purposes of the Criminal Code, and is a more logical interpretation of the statutes,

both criminal and juvenile. It is the least ambiguous. It does not detract from the purposes of the Juvenile

Code. It complements them. We so hold.

CONCLUSION

For the reasons stated in this opinion we hold that jurisdiction of the complaints filed against

Joseph D. Simmons were first properly before the Adult Court. The Juvenile Court never had continuing

jurisdiction over J.D. Simmons, and, therefore could not rule on a transfer of the complaints from

Juvenile Court to Adult Court. To the extent the Order Transferring Case To Juvenile Court for Lack of

Adult Criminal Jurisdiction of Chief Judge Aycock, entered on record April 30, 1999 and signed June 24,

1999, and the Amended Minute Order of Judge Fred Gabourie, Sr., entered September 23, 1999 conflict

with this ruling, they are REVERSED.

Further, this matter is REMANDED (1) to the Juvenile Court for an Order of Dismissal; and (2)

to the Adult Court for an Order Vacating its Order of April 30, 1999/June 24, 1999.

IT IS SO ORDERED.

CTC § 1-2-11. Also see, Coleman v. CCT, 3 CTCR 18 (1994) and CCT v. St. Peter, 1CTCR 75, 20

ILR 6028 (1993).

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6 CCAR ___

Herman GORR, Appellant,

Danny Joe STENSGAR, Appellant,

vs.

COLVILLE CONFEDERATED TRIBES, Appellee.

Case Number AP97-002, AP97-003, AP97-004, 3 CTCR 47

6 CCAR 39

[M. Brent Leonhard, Office of Public Defender, for Appellant.

Leslie Kuntz, Office of the Prosecuting Attorney, for Appellee.

Trial Court Case Numbers: 94-17485/86/87; 94-17474; and 96-19027]

Argued April 17, 1998. Decided June 28, 2002.

Before: Chief Justice Anita Dupris, Justice Edythe Chenois, Justice Howard E. Stewart, Justice Earl L.

McGeoghegan and Justice Dennis L. Nelson

Dupris, CJ

HISTORY

AP97-002:

On December 12, 1994, the Office of Prosecuting Attorney filed a complaint in

Tribal Court alleging the defendant, Herman Gorr, violated the CCT Law and Order

Code. He was charged with the offenses of Disobedience of a Court Order, Battery,

Malicious Mischief and Battery. The second count of Battery was dismissed on February

27, 1995.

Defendant was sentenced on October 9, 1995. A predismissal hearing was set for

September 23, 1996. He failed to appear for that hearing and a warrant for his arrest was

issued. Defendant was brought before the Court for a bail hearing on February 10, 1997.

Bail was set and a show cause hearing scheduled for February 19, 1997.

At the Show Cause hearing, Defendant was found to have violated the conditions of the

Judgment and Sentence. Defendant was ordered to pay the $200 fine imposed on the

total of $400 due. The amount was due prior to his release from jail or he could serve it

Judgment and Sentence and to pay an additional $200 of the suspended sentence, for a

out at the rate of $30 per day. Defendant was also given 86 days in jail, to be run

concurrently with any other jail sentence imposed.

The Notice of Appeal was filed on March 6, 1997. Appellant alleges that 1) the Court

wrongly set this matter before a judge who was not a judge of the Court; and 2) that the

fine and jail imposed were excessive, arbitrary and capricious.

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AP97-003:

On December 9, 1994, the Office of Prosecuting Attorney filed a complaint in

Tribal Court alleging the defendant, Herman Gorr, violated the CCT Law and Order

Code. He was charged with the offense of Battery.

Defendant was sentenced on October 9, 1995. A predismissal hearing was set for

September 23, 1996. He failed to appear for that hearing and a warrant for his arrest was

issued. Defendant was brought before the Court for a bail hearing on February 10, 1997.

Bail was set and a show cause hearing scheduled for February 19, 1997.

At the Show Cause hearing, Defendant was found to have violated the conditions

of the Judgment and Sentence. Defendant was ordered to pay the $500 fine imposed on

the Judgment and Sentence and to pay an additional $500 of the suspended sentence, for

a total of $1000 due. The amount was due prior to his release from jail or he could serve

it out at the rate of $30 per day. Defendant was also given 88 days in jail, to be run

concurrently with any other jail sentence imposed.

The Notice of Appeal was filed on March 6, 1997. Appellant alleges that 1) the Court

wrongly set this matter before a judge who was not a judge of the Court; and 2) that the

fine and jail imposed were excessive, arbitrary and capricious.

AP97-004

On January 13, 1996, the Office of Prosecuting Attorney filed a complaint in

Tribal Court alleging the defendant, Danny Joe Stensgar, violated the CCT Law and

Order Code. He was charged with the offense of Driving While Intoxicated.

Defendant was sentenced on February 14, 1996. A predismissal hearing was set for

January 21, 1997. Defendant failed to appear for that hearing and a warrant for his arrest

was issued. Defendant was brought before the Court for a bail hearing on February 18,

1997. Bail was set and a show cause hearing set.

At the Show Cause hearing, Defendant was found to have violated the conditions of the

Judgment and Sentence. Defendant was ordered to pay a fine of $250, if not paid when

due, Defendant to serve out the fine at a rate of $30/day; 30 days jail to be served on

weekends; if any failure of payment of fine or reporting to jail, warrant to issue and

Defendant to serve out the remainder of the jail as straight time.

The Notice of Appeal was filed February 28, 1997. Appellant argues that 1) the Court

wrongly set this matter before a judge who was not a judge of the Court; 2) Court

wrongly denied defendant the opportunity to call witnesses, testify on his own behalf and

present his defense; the Court wrongly found that defendant violated the conditions of the

the reimposed fine without consulting defendant about appropriateness of the time; and

Judgment and Sentence; the Court was arbitrary and capricious in setting a due date for

the reimposition of the sentence was excessive, arbitrary and capricious.

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Two panels were appointed to hear these cases. Cases AP97-002 and AP97-003 were before

Justices Dupris, Chenois and Stewart. Case AP97-004 was before Justices Dupris, McGeoghegan and

Nelson. An Initial hearing was held on May 16, 1997 and it was ordered that the cases would be

1998.

combined and the issues bifurcated. Briefs were ordered and filed. Oral arguments were held April 17,

STANDARD OF REVIEW

The issues in these cases involve questions of law only. The standard of review in a case

concerning only questions of law is de novo. In Re R.S.P.V., AP97-001, 4 CCAR 68, 3 CTCR 7, 26 ILR

6039 (1998); Wiley v. CCT, AP93-16237, 2 CCAR 60, 2 CTCR 9, 22 ILR 6059 (1995).

ISSUE #1 (AP97-002/003/004)

Was Judge Collins a judge of the Colville Tribal Court when he made his decision in these cases

herein?

DISCUSSION

Appellants argue that the judicial acts of Judge Collins were invalid in that his term of office had

expired. The Colville Tribal Constitution grants the Colville Business Council authority to set the term of

office for associate judges

Judge Collins’s term of office terminated immediately upon the appointment of Judge Katherine Eldemar

Appellee first argues that this issue was not fully developed nor ruled on by the trial court in

as well as appoint and remove judges. It is the Appellant’s position that

on February 14, 1997. Judge Eldemar signed her Judicial Oath of Office on February 18, 1997.

violation of Interim Rule 4(c).

an improperly sitting judge was argued at the Trial Court with a written order issuing.

Appellee argues there is no record that the issue of Judge Collins being

Judge Collins

ruled orally from the bench holding he was a properly sitting judge. Appellee points out the Law and

Order Code allows for “at least two” associate judges to be appointed to the Trial Court.

Resolution

Constitution, Article VIII, § 4: “Compensation and Term. Except for the terms of the Justices of the Tribal Court of Appeals and the Chief Judge of the Tribal

Court, the term of any appointed judge shall be determined by the Business Council.”

Interim Court Rules, 4(c): The Court of Appeals will not entertain issues on appeal that are not fully developed and ruled on by the Trial

Court.

Interim Court Rules 4(b): For purposes of filing an appeal with the Court of Appeals, “final” orders set out above in part (a) are the written

orders issued by the trial court that dispose of the substantive issue, and not the oral bench orders entered in the matter to be appealed.

Colville Tribal Law and Order Code 1-1-100: The Tribal Court shall consist of one Chief Judge whose duties shall be regular and at least two

Associate Judges who may be called into service when the occasion arises. Among other duties assigned by the business Council and this

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6 CCAR ___

1994-269 appointed Judge Collins as a temporary judge until the position could be filled permanently. A

contract was entered into which gave a start date of April 26, 1994 and that termination would be with 60

days notice given by either party to the other. Chief Judge Wynne filed an affidavit indicating that a

review of Judge Collins’s employment records did not reveal a termination date nor has there been any

other documentation presented which specifically gives a termination date for his appointment.

After review of the record, we find that there is no statutory requirement which limits the number

of judges that the Court may have. The Code only specifies that there be “at least two” associate judge

positions. If the Council wanted to have ten (10) associate judges, they have the authority to do so. We

hold that Judge Collins was a proper sitting judge and not a de facto judge.

ISSUE #2 (AP97-002/003)

Was the reimposition of fine and jail time in these matters excessive, arbitrary and/or capricious?

DISCUSSION

Appellant argues that when the suspended fine was imposed, he was indigent and the Court

should have determined his ability to pay the fine. Appellant asserts the Court should have known he was

indigent because he was being represented by the Public Defender’s Office which only represents

indigent clients. Appellant stated the Judgment and Sentence Order imposed 90 days jail, with credit for

time served of 2 days and the remaining 88 days suspended. The Show Cause Order reinstated 88 days

jail and $1000 fine due prior to release from jail. He argues the imposition of the fine, which was due

prior to release, extends the time in jail to more than the 90 days originally imposed. Appellant argues that

the Court should find that statutorially the longest jail time that could be imposed would be the 88 days

suspended. Confinement of indigents longer than the maximum term imposed by statute for their failure

to pay the monetary provision of their sentence is a violation of the Equal Protection Clause, he argued.

violated. Appellee also argues that Appellant cannot appeal a sentence that is within statutory limits, and

the sentence imposed was within the limits.

Appellee counters that Appellant did not adequately argue which part of the statute the Court

Appellee also argues that Appellant did not establish a record in the lower court on the issue of

indigency. The Court’s order ex parte appointing the Public Defender’s Office to represent Appellant

established only that he was unable to pay for an attorney to represent him and did not deal with whether

he could pay a fine. Appellee argues Appellant did not raise the indigency issue at the Trial Court and

now cannot raise it at the Court of Appeals for the first time.

If an issue hasn’t been sufficiently developed at the trial level, the Court of Appeals will not

address the issue at the appellate level. Smith v. CCT, AP97-008, 4 CCAR 58, 2 CTCR 67, 25 ILR 6156,

Chapter, Associate Judges shall preside over court proceedings as assigned by the Chief Judge, sign court documents, complete case dispositions’

[sic] monitor court officer conduct to maintain respect due to the Court and abide by the Tribes’ Judicial Rules of Conduct. All judges shall be

bonded.

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6 CCAR ___

8 NALD 7005 (COA, 05-07-1998). We hold the issue of the Appellant’s indigency has not been properly

developed at the Trial Court and we will not rule on it.

Further, there is no abuse of discretion by the Trial Court if the sentence imposed is within the

statutory limits set by the Colville Law and Order Code. Condon v. CCT, AP92-15313, 1 CTCR 71, 20

ILR 6107, 1 CCAR 70 (COA, 05/28/93). We are not persuaded to adopt the Appellant’s interpretation

that the statutorily maximum sentence is 88 days. We so hold.

ISSUE #3 (AP97-004)

Did the Trial Court err by not allowing Defendant to call witnesses, testify on own behalf and

present his defense at the Show Cause hearing?

DISCUSSION

Appellant alleged the following: (1) he was not allowed to call two witnesses from the Probation

Department to corroborate his testimony that he failed to contact the Probation Office on a monthly basis;

Defendant a continuance to call the witnesses; (3) he did not receive the letters in question and that there

was no evidence presented to the Court on the adequacy of the mailing of the letters to him; and (4) that

(2) the judge determined that the witnesses’ testimony would not be material to the case and denied

the Court did not allow Defendant to testify on his own behalf about the alleged non-contact stating that it

too was immaterial to the case. A review of the record indicates that Appellant was sworn in and allowed

to testify at the show cause hearing. He was allowed and encouraged to cross-examine his probation

officer. Judge Collins made every effort to assure that Appellant was given an opportunity to present his

defense and to offer proof of his compliance with the Judgment and Sentence.

Appellee argues that the Court correctly denied Appellant’s request for a continuance to call

witnesses because even if they did testify to his contacts with the Department, he was required to maintain

Appellee also argues that there was a dispute on the fact that the Appellant claims not to have received

contact with his probation officer. Only her testimony from the department was material to that allegation.

any letters from his probation officer. After hearing testimony from both, the Court found that there was

sufficient evidence to find a violation of the terms of the probation agreement.

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 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,

AP97-007, 6 CCAR 11, 3 CTCR 41 (2002). 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

7005 (1998).

Appeals cannot be de novo. Smith v. CCT, AP97-008, 4 CCAR 58, 2 CTCR 27, 25 ILR 6156, 8 NALD

We are not persuaded that Judge Collins’s decision was manifestly unreasonable, exercised on

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6 CCAR ___

untenable grounds or for untenable reasons. We hold that there was no abuse of discretion by the Trial

Court in denying a continuance of the hearing to obtain witnesses, nor was Defendant denied an

opportunity to testify on his own behalf or to present his defense.

ISSUE #4 (AP97-004)

Did the Trial Court err in finding the Appellant violated the conditions of his Judgment and

Sentence based on the evidence?

DISCUSSION

Appellant argues the Court found he had violated his Judgment and Sentence by (a) violating

probation and parole; (b) failing to pay a $250 fine on time; and (c)failing to appear for a pre-dismissal

hearing.

Appellant argues the Court should not have found him in violation of failing to contact his

probation officer. He states that in order to find a violation there must be a certified copy of the probation

contract filed with the Court. Appellant testified that he wasn’t sure that he actually received the

document and that even if he did, he didn’t think that personally meeting with his probation officer was

part of the agreement. Appellee counters that the Court was in receipt of the probation contract because it

was submitted with the officer’s report indicating Appellant was not in compliance with the Judgment and

Sentence. Appellee argues that the Court can take judicial notice of documents already contained in it’s

files.

The Trial Court concluded that Appellant had ample notice of the Probation Agreement. Upon

questioning by the Court, Appellant admitted that he had signed the Probation Agreement and was

probably aware of its contents. He conceded that he probably had gone over the Judgment and Sentence

with his probation officer and knew of the conditions imposed. Evidence presented showed that

Appellant’s request for a different probation officer was denied by the Program Manager.

Appellant argues that the Court should not have found him in violation of the Judgment and

Sentence by failing to pay his fine on time. He stated he had significant changes in his life and was unable

to either pay the fine or perform community service work. He thought that he could request a continuance

on the due date when he appeared at his predismissal hearing.

The Trial Court specifically asked Appellant if he had paid his fine on time. Appellant

acknowledged that he did not. He offered no proof as to requesting an extension on the fine.

Appellant argues that failure to appear for a predismissal hearing is not a basis to find a violation

of the Judgment and Sentence. Appellee agrees, but argues that the issues were bifurcated, and the Court

was properly looking at the entire record when it imposed the unsuspended portion of the sentence.

the Judgment and Sentence. If a violation is found, then the Court takes a broader look at the entire file to

Appellee believes that the Court first looks at whether the defendant has violated any of the conditions of

determine the overall compliance or non-compliance so that a suitable sentence may be imposed. That is

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where the failure to appear for the predismissal hearing came into play.

Where a defendant has failed to complete his sentence as prescribed, the Court may reinstate or

impose any part of the suspended sentence where the defendant has violated a condition of suspension.

Brown v. CCT, AP94-029, 4 CCAR 28, 2 CTCR 51, 24 ILR 6245 (1997). It is in the Trial Court’s

discretion on how much, if any, of the suspended portion of sentence is reinstated. Before the Court of

Appeals will overturn the Trial Court’s decision, there must be shown a clear abuse of discretion. Jack v.

CCT, AP97-007, 6 CCAR 11, 3 CTCR 41 (2002). It was within the judge’s discretion to order the

Appellant to finish out his jail term plus any additional amount for failing to comply with the conditions

of the initial Judgment and Sentence. Smith v. CCT, AP97-008, 4 CCAR 58, 2 CTCR 67, 25 ILR 6156, 8

NALD 7005 (1998). Where the defendant has failed to complete his sentence as prescribed, the Court

may reinstate or impose any part of the suspended sentence where the defendant has violated a condition

of suspension. Brown v. CCT, AP94-029, 4 CCAR 28, 2 CTCR 51, 24 ILR 6245 (1997). We hold that the

judge did not err when he found Appellant had violated the conditions of his Judgment and Sentence

based on the evidence presented.

Two other assignments of error were abandoned by Appellant and will not be ruled upon.

ORDER

Based on the foregoing, the Court holds:

(1) Judge Collins was properly sitting as a judge and not a de facto judge at all times in the instant

cases;

(2) the issue of the Appellant’s indigency has not been properly developed at the Trial Court and

we will not rule on it.

(3) there was no abuse of discretion by the Trial Court in denying a continuance of the hearing to

obtain witnesses, nor was defendant denied an opportunity to testify on his own behalf or to present his

defense.

(4) the judge did not err when he found Appellant had violated the conditions of his Judgment

and Sentence based on the evidence presented.

(5) the appeals are denied and these cases are remanded to the Trial Court for execution of the

Orders of February 20, 1997 consistent with this Opinion and Order.

It is SO ORDERED.

Court of Appeals Reporter

6 CCAR ___

Clifford WILLIAMS, Appellant,

vs.

COLVILLE CONFEDERATED TRIBES, Appellee.

Case No. AP99-003, 3 CTCR 46

6 CCAR 45

[M. Brent Leonhard, Office of Public Defender, for Appellant.

Trial Court Case No. 98-21367/68.]

Leslie Kuntz, Office of Prosecuting Attorney, for Appellee.

Argued October 15, 1999. Decided April 30, 2002.

Before Chief Justice Anita Dupris, Justice David Bonga and Justice Conrad Pascal

Bonga, J.

SUMMARY

Defendant was arrested for DUI on August 18, 1998 at approximately 1:45 P.M. Less than

twenty-four hours later at 1:00 P.M. on August 19, 1998 the defendant was brought before the court for

arraignment. The court, presided by Judge Mike Somday, found the description of the location of the

offense not adequately specific. Sua Sponte, Judge Somday dismissed the matter without prejudice.

An amended Complaint was filed on August 27, 1998 by the Office of the Prosecuting Attorney

alleging two violations stemming from the August 18, 1998 incident. Driving While Intoxicated and

Driving Without a Valid License. An Affidavit of Probable Cause was attached.

Defendant was arraigned and entered pleas of not guilty within 72 hours of his arrest as required

by CTC § 2-1-100 and CTC § 2-1-101. Defendant did not make a request or motion at arraignment for the

Tribal Court to make a determination on probable cause for his arrest.

Appellant, through counsel, filed two motions to dismiss and a motion to exclude the BAC test.

The motions to dismiss were based on Appellant not being given a timely probable cause hearing, a

Gerstein

review. The Court denied the motions. On February 26, 1999, Appellant entered a plea of

guilty to both charges and was sentenced. Appellant filed his Notice of Appeal on march 1, 1999.

The Court of Appeals set a briefing schedule. Briefs were filed and oral arguments were heard on

October 15, 1999.

ISSUES

1.Did the Court err by finding that the Appellant was not entitled to a determination of probable

Gerstein v. Pugh, 420 U.S. 103 (1975).

Court of Appeals Reporter

6 CCAR ___

cause (Gerstein hearing) by a neutral and detached magistrate promptly after his arrest?

2. Did the Court err by not requiring the probable cause to be held within 48 hours of custodial

arrest?

DISCUSSION

Appellant relies on the U.S. Supreme Court case Gerstein, supra, to support his position. The

Gerstein case held that a warrantless seizure of a person who continues to be in pre-trial detention is not a

“reasonable seizure” unless a neutral and detached magistrate makes a prompt determination of probable

cause. Appellant further argues that Gerstein holds that continued detention is not reasonable if left to the

police or the prosecutor to determine probable cause.

Appellant also cites County of Riverside v. MacLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114

L.Ed.2d 49 (1991) holding that the Fourth Amendment of the U.S. Constitution

as requiring the Court

to hold a probable cause hearing within 48 hours of detention. In Riverside the U.S. Supreme Court held

that they believed that if a jurisdiction that provides judicial determinations of probable cause within 48

hours of arrest will comply with the promptness requirement of Gerstein. Such jurisdiction will then be

immune from systemic challenges, though it may still consider violations if the arrested individual can

probe a delay was unreasonable.

The Court finds that there has been no prejudice to the Appellant by not having a probable cause

hearing. The record indicates that the Appellant was arrested on August 18, 1998 at approximately 1:45

p.m. Less than 24hours later, at 1:00 p.m. on August 19, 1998, he was brought before the Court for an

arraignment. The judge found that the location of the offense was not adequately specific and dismissed

issued a criminal summons and the Appellant appeared in response to it. He was not arrested - with or

the case, sua sponte without prejudice. On August 27, 1998, the Tribes filed a new action. The Court

without a warrant. Appellant filed a motion to counsel on September 24, 1998, well before his

arraignment. The Public Defender was appointed on October 4, 1998. The Public Defender was provided

with discovery on the same day as Appellant’s arraignment, October 12, 1998. This Court finds that the

facts in this case do not support the claim that probable cause hearings are required when liberty is

restrained through pretrial incarceration as pretrial incarceration did not occur here.

Just as the United states is the ultimate authority on how the Bill of Rights applies to its citizens,

so to is the Colville Tribe the authority on how the Indian Civil Rights Act (ICRA) applies to its members

and others over whom it rightfully exercises jurisdiction. Through it’s Law and Order Code and through

court practices over many years, it is clear that the Tribe does not require a probable cause determination

before the Court within 48 hours of arrest. Instead, the Tribe has found that the requirements of the ICRA,

Fourth Amendment, U.S. Constitution: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and not Warrant shall issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be seized.

Court of Appeals Reporter

6 CCAR ___

as well as it’s own civil rights statute, are satisfied by an initial appearance within 72 hours of arrest.

In conclusion this court agrees with the ruling delineated below by the trial court that Gerstein is

not applicable to the Tribal Court. The Court points to the fact that the U.S. Constitution does not apply to

Indians, therefore the cases cited by Appellant that interprets the Fourth amendment do not apply to this

sovereign Indian Tribe in the United States, including the Colville Confederated Tribes. Talton v. Mayes,

matter, as the Fourth Amendment, as well as the other provisions of the Bill of Rights, do not apply to any

163 U.S. 376 (1896).

ORDER

1. The decision of the trial court is upheld and defendant’s appeal is DENIED.

Court of Appeals Reporter

6 CCAR ___

Linda LOUIE, Appellant,

vs.

PASCAL SHERMAN INDIAN SCHOOL, Wolfgang STEVENS, Appellees.

Case Number AP01-012, 3 CTCR 48,

6 CCAR 47(1)

[Appellant appeared pro se.

Trial Court Case Number CV-OC-2001-21288]

W. Scott DeTro, Attorney, for Appellees.

Initial hearing held December 14, 2001. Decided January 2, 2002.

Before Chief Justice Anita Dupris, Justice Earl L. McGeoghegan and Justice Howard E. Stewart

Dupris, CJ

This matter came before the Court of Appeals pursuant to an Initial Hearing being scheduled on

his date. Appellant appeared in person and without counsel. Appellee appeared through counsel, Scott

DeTro.

Appellee moved for a dismissal based on lack of service on the Appellee of the filing of the

Appeal. Discussion was heard and the Court ruled that the Appellant did not file proof of service of her

appeal within the 5-day rule as provided in Interim Court Rule 7-c, Proof of Service.

It is ORDERED that the Motion to Dismiss entered by Appellee shall be granted. This case is

dismissed and shall be sent to the Trial Court for disposition consistent with this order.

James H. GALLAHER Jr., Petitioner,

vs.

OFFICE OF PROSECUTING ATTORNEY, Respondent.

Case No. AP02-009, 3 CTCR 49

6 CCAR 47(2)

[Petitioner, pro se.

David Ward, Office of Prosecuting Attorney, for respondent.]

Proof of Service. Papers presented for filing shall contain an acknowledgment of service by filing an affidavit of service. The Clerk may

permit papers to be filed without the acknowledgment or proof of service, but shall require the acknowledgment or proof of service to be filed

within five (5) days thereafter. Failure of his section shall be cause for the clerk to return the papers filed to the appellant and strike the matter

from the Court of Appeals record for incompleteness.

Court of Appeals Reporter

6 CCAR ___

Decided July 1, 2002.

Before Chief Justice Anita Dupris, Justice Earl L. McGeoghegan, Justice Dennis L. Nelson

Dupris, CJ

This matter came before the Court of Appeals pursuant to a filing of a Petition for Writ of

Mandamus filed by Petitioner on May 29, 2002. Petitioner is requesting that the Court of

Appeals direct the Office of the Prosecuting Attorney to file a Motion to Dismiss proceedings

commenced in the United States District Court for the Eastern District of Washington. Counsel

for Respondent, Prosecuting Attorney’s Office, David Ward, Prosecutor in Charge, did not file

an answer to the Petition for Writ of Mandamus.

The Court of Appeals met on June 21, 2002 by telephone conference call to discuss

preliminary matters in this case. After review of the record and discussion, the Panel has made

the following determinations:

1) The Court of Appeals for the Colville Reservation lacks jurisdiction to entertain the

Writ of Mandamus that Petitioner is requesting. Petitioner is under Federal jurisdiction and he

should be pursuing any legal action through that venue.

2) Writs of Mandamus are issued from courts to compel officials to perform acts that the

law recognizes as an absolute duty, rather than acts that may be at the official’s discretion.

Ministerial acts are those which are performed according to explicit directions by a subordinate

official, allowing no judgment or discretion on the part of that official. The act that Petitioner is

requesting the Office of the Prosecuting Attorney to perform is discretionary and therefore not

subject to a Writ of Mandamus.

It is therefore ORDERED that the Writ of Mandamus is not properly before the Colville

Court of Appeals and is denied.

John D. GALLAHER Sr., Appellant,

vs.

Alton FOSTER, Hazel FOSTER and Vickie FOSTER, Appellees.

AP00-007, 3 CTCR 50

Court of Appeals Reporter

6 CCAR ___

6 CCAR 48

[Appellant, John D. Gallaher, Sr., appeared pro se.

Wayne Svaren, Attorney at Law, appeared for Appellees Alton & Hazel Foster.

Trial Court Case Number CV-CU-2000-20132]

Appellee Vicki Foster appeared pro se.

Argued February 16, 2001. Decided July 23, 2002.

Before Chief Justice Dupris, Justice Miles

and Justice Pascal.

Dupris, CJ for the Panel.

PROCEDURAL HISTORY

This matter came before the Trial Court upon a filing of two custody petitions. The first was filed

by Appellee, Vickie Foster, on September 2, 1998 against John D. Gallaher, Sr., Appellant herein, asking

for custody of their minor daughter.

The second was filed by the Appellees, Alton and Hazel Foster, on

May 11, 2000 against John D. Gallaher and Vickie Foster, also asking custody of the same minor child.

The Fosters are the maternal grandparents of the child in question.

This case went through several preliminary hearings throughout 2000. On April 26, 2000, Judge

LaFountaine entered temporary orders granting temporary custody to Vickie Foster and temporary

visitation to John D. Gallaher, Sr. The Court also appointed a Guardian Ad Litem for the minor child and

set the “custody trial” for June 27, 2000. On May 11, 2000 Judge Aycock granted temporary custody of

the minor to Alton and Hazel Foster, and further ordered supervised visitations for the parents of said

child. A Show Cause on the temporary orders was set for May 24, 2000.

The Court signed the orders

from the May 24, 2000 on May 30, 2000, continuing the temporary orders from May 11, 2000, and

setting the “custody hearing” on June 26, 2000.

hearings, the results basically the same: the temporary orders were continued and the “custody hearing”

was continued. The hearings appear to be the result of show causes set from emergency motions filed by

It appears from the record that the Court held at least two (2) or three (3) more preliminary

different parties to the action.

On July 14, 2000 the Court consolidated the cases and set a custody hearing for September 6,

Since the Oral Arguments in this matter Justice Miles has passed away; she did discuss the decision in this matter with the whole panel,

however, and contributed to it.

The minor daughter’s name and age are not relevant to the decision herein so we will not include them in the opinion.

The record does not reflect how the Trial Court addressed the conflicting order of April 26, 2000.

Court of Appeals Reporter

6 CCAR ___

2000.

A Show Cause hearing was held on August 29, 2000 to decide whether a restraining order

should be continued against Norman “Bo” Sammaripa contacting the Fosters. Mr. Sammaripa was living

with Vickie Foster at the time of the hearing. Mr. Gallaher was not present at the hearing which involved

issues between the Fosters and their daughter and the man she was living with, Mr. Sammaripa. The

judge did not sign the order until September 21, 2000, and it was not filed with the Court until September

26, 2000. The Order included a Notice of the Custody/Support hearing, continuing it from September 6,

2000 to September 27, 2002, one day after the order was filed.

Mr. Gallaher’s sister, Jeanetta Manley, accepted service for Mr. Gallaher. There is nothing in the

record showing Mr. Gallaher received personal service.

On September 26, 2000, however, he moved

for a continuance of the September 27, 2000 hearing.

At the start of the hearing on September 27, 2000, Judge Gabourie denied Mr. Gallaher’s Motion

to Continue as untimely filed. A Custody hearing was held on September 27, 2002 before Judge Fred

Gabourie, Sr. The Order from this hearing was issued on October 2, 2002 granting custody of the minor

child in question to Alton and Hazel Foster, her maternal grandparents.

Appellant filed his Notice of Appeal on October 10, 2002 alleging misconduct of the judge,

irregularity in the proceedings by the Court, abuse of discretion by which he was prevented from having a

fair trial, that the decision is contrary to the law and that substantial justice has not been done.

An Initial Hearing was held on November 17, 2000 and oral arguments were heard on February

16, 2001. The Appellant failed to file a brief in the Court of Appeals. Appellees, Alton and Hazel Foster,

filed a Motion to Dismiss the appeal because of the Appellant’s failure to brief the issues raise. Appellee

Vickie Foster did not file a brief.

Based on the reasoning below we find that the due process issue herein is fundamental and

compelling enough for the Court to address it as a matter of law. Further, we find that the Appellant was

not given adequate notice of the custody hearing, and the Order of September 27, 2000 should be vacated

and the matter remanded for another custody hearing in compliance with the opinion and orders herein.

FIRST ISSUE

SHOULD THE APPEAL BE DISMISSED BECAUSE THE APPELLANT FAILED TO FILE A

At the Oral Arguments hearing on February 16, 2001, the Appellees, Alton and Hazel Foster,

BRIEF ON THE ISSUES RAISED?

moved to dismiss the Appeal because the Appellant failed to file a brief. Appellees argued the Appellant

The order from the July 14, 2000 hearing was not signed until August 7, 2000, and filed August 8, 2000.

The only provisions for allowable types of service in Chapter 2-2 of the Code are regarding initial service of the Notice and Summons and

Complaint in an action. It allows personal service, service by certified mail, and, in some instances, publication service. No where in the Code is

abode service allowed.

Court of Appeals Reporter

6 CCAR ___

had the initial burden to support the arguments in his case. Seymour v. CCT, 3 CCAR 11 (1995). In the

alternative, Appellees argued, by failing to file a brief the Appellant has abandoned his appeal. See:

Grunlose v. CCT, 5 CCAR 26 (1999); Covington-Garry v. Sanchez, 5 CCAR 20 (1999); CCT v. Meusy, 4

CCAR 37 (1997); Condon v. CCT, 3 CCAR 67 (1996); Louie v. CCT, 3 CCAR 66 (1996); Herman v.

Appellant responded that he has been ill for several months and was unable to properly draft a

CCT, 3 CCAR 65 (1996); and Picard v. CCT, 3 CCAR 65.

brief. He also has had to make several doctor’s appointments and was unable to unable to work and had to

go on disability.

DISCUSSION OF LAW

At the Oral Arguments Hearing this Panel, after careful consideration, found Covington-Garry v.

Sanchez, 5 CCAR 20 (1999), controlled the issue and denied the Motion to Dismiss for cause. It is the

Court of Appeals’s duty to decide w

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