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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/tribal%3Aconfederated_colville%3A83839d58140ea177

## Record

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

## Text

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

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vs.

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Colville Confederated Tribes Children and Family Services, Appellee.

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Case Number AP99-004, 3 CTCR 39, 28 ILR 6203
6 CCAR 1

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[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

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

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

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

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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
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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?

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

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

Court of Appeals Reporter

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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

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

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

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DISCUSSION

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I. MAY A COLVILLE MEMBER MINOR’S TRUST MONEY BE WITHDRAWN

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FROM HIS ACCOUNT WITHOUT A COURT ORDER?

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

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

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

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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

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

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

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

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

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

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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.

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2. Foster parents and foster homes.

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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.
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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.
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“...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

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agencies.

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4. Legal guardians and adoptive parents.

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5. Other agencies, departments and individuals which would deprive

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the minor children of their dividend and per capita shares due them by
virtue of their membership in the Confederated Tribes of the Colville

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Reservation, Washington. [emphasis added]

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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

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

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

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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

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

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330, does not apply in this case.

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

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

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

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

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

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

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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).

Court of Appeals Reporter

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

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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).

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

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

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

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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.

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

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

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

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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?

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

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

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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

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(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].
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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].

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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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Court of Appeals Reporter

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6 CCAR ___

Elaine SEYMOUR, Appellant,

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vs.

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COLVILLE CONFEDERATED TRIBES, Appellee.

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Case Number AP96-022, 3 CTCR 40, 29 ILR 6009
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[Jeffrey Rasmussen, Office of Public Defender, for Appellant.

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Trial Court Case Number 95-18257]

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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.

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SUMMARY OF PROCEEDINGS

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

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

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

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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
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appealed.

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

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

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

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

is affirmed.

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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

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

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

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

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

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

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

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(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).

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

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

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

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

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

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defines the Tribes jurisdiction as follows:
The jurisdiction of the Tribal Court and the effective area of this Code shall include all

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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

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

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

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

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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.

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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.
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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.

Court of Appeals Reporter

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1) "1-1-430 Implied Consent

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

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

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

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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

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

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

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[emphasis added]

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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

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

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

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applied in federal district courts;

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personal jurisdiction based on ethnicity is a prerequisite to subject
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matter jurisdiction in several instances in federal criminal court.

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

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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.

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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.
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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).
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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.)
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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.)

Court of Appeals Reporter

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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,

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

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

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

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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

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

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

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

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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.

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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

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

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

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This is a question of first impression.
B. Who Has the Burden to Assert Lack of “Oliphant” Jurisdiction?
(1) APPLICABLE STANDARD OF REVIEW

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

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

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

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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)).
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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.
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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.

Court of Appeals Reporter

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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

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

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the matter).

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

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

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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

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

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

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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,

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

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

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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

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

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

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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

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rights to proceed. We so hold.

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Court of Appeals Reporter

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6 CCAR ___

(2) WHO HAS THE FIRST BURDEN OF PRODUCTION?

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

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

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

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

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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

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

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

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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

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

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

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

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

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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

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

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

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

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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

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

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and Nevada].").
The most persuasive position is that in the unreported Ford case from the Eastern District.

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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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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

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

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

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

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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

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

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

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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.

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

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6 CCAR ___

Vincent JACK, Appellant,

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vs.

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COLVILLE CONFEDERATED TRIBES, Appellee.

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Case Number AP97-007, 3 CTCR 41
6 CCAR 11

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[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]

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

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Before Chief Justice Dupris, Justice Chenois and Justice McGeoghegan.

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Dupris, J. for the Panel.

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SUMMARY

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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

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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

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

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

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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.

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A Show Cause hearing was held on March 12, 1997. Appellant was found to have violated the
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Tribal Community Counseling Services, a Tribal program which handled alcohol evaluations, referrals and support services.

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6 CCAR ___

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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

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

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all previous orders of the Court intact.

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The Stay was granted.

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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.

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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?

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DISCUSSION

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

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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

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

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

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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

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

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

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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

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

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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.

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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,

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

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

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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

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

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

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

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

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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 ___

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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

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

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

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

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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

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

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

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

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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

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continuances. Unless there is a showing of clear abuse of discretion, this Court will not overturn a

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decision of the Trial Court. A review for an abuse of discretion violation requires that the Court of

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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).

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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

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

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

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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

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

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

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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

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

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6 CCAR ___

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ILR 6202, 4 CCAR 65 (1998).

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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.

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6 CCAR ___

COLVILLE CONFEDERATED TRIBES, Appellant,

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vs.

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Ernest RICKARD, Appellee.

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Case Number AP02-002, 3 CTCR 42
6 CCAR 15

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[Dawn Reynolds, Office of Prosecuting Attorney, for Appellant.
Tim Liesenfelder, Attorney, for Appellee.
Trial Court Case Number CR 2000-22470]

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Decided February 15, 2002.

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Before Chief Justice Dupris, Justice Chenois and Justice McGeoghegan

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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

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

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

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

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

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

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

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

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the three Abduction charges.

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

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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

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

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

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the Appellant has not

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

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

Court of Appeals Reporter

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6 CCAR ___

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Court of Appeals Reporter

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6 CCAR ___

Melissa M. FRY, Appellant,

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vs.

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Larry E. FRY Jr., Appellee.

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Case Number AP01-008, 3 CTCR 43
6 CCAR 16

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[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

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

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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.

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

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

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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.

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Daniel HOOVER, Appellant,

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vs.

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COLVILLE CONFEDERATED TRIBES, Appellee.

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Case Number AP99-001, 3 CTCR 44

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6 CCAR ___

6 CCAR 16

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

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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.

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Trial Court Case Number CV96-16042]

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Fry, J.

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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.

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PROCEDURAL HISTORY

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

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

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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

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

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

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in as plaintiff.

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

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

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the Colville Confederated Tribes

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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.

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6 CCAR ___

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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).

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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

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50,

th

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

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

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

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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.

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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.

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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

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

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Indians and non-Indians.

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

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

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

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deer, elk, and other wildlife.

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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.

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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

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

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

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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

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

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Conservation Act,

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which specifically provides for land acquisition and wildlife enhancement.

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

26
27
28

Court of Appeals Reporter

23

6 CCAR ___

1

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.

2

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

3

through generations.

4

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.

5
6

29

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

7

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

8

and survival of the Tribes and their members.

9

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

10

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

11

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

12

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

13

and land acquisition within the Reserve.
In 1977, the Tribes, in cooperation with the United States Department of the Interior, acquired

14

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

15

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

16

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

17
18
19
20

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.

21

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

22

with the State of Washington.

23

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

24

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

25

29

26
27
28

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.

Court of Appeals Reporter

24

6 CCAR ___

1

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.

2

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

3

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

4
5
6

source for the Tribes at the time of hearing. All timber sales go through the Integrated Resource
Management Planning (IRMP) process

30

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.

7

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

8

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

9

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

10
11
12
13

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.

14
15
16
17
18

Land Use and Development Code
In November 1978, the Colville Business Council

31

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

19

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

20

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

21

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

22

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

23

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

Comprehensive Plan.

24

30

25

31
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.

26
27
28

See Page 9 for a description of the IRMP process.

Court of Appeals Reporter

25

6 CCAR ___

1

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

2

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

3

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

4

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

5
6
7
8
9
10
11
12
13
14
15

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

16

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

17

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

18
19
20
21
22
23

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.

32

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

24
25
26
27
28

32

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

26

6 CCAR ___

1

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.

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

for approval from the Tribes.

11

Impact of uncontrolled fee land development with the Reserve

12
13
14
15

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

16

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

17

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

18
19

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

20

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

21

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

22

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,

23

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

24

habitation.

25

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

26

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

27

Court of Appeals Reporter

28

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

27

6 CCAR ___

1

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

2

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

3

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

4
5
6
7
8

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

9

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

10

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

11
12
13

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.

14
15

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

16

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

17

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

18
19
20
21
22

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.

23

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

24

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

25

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

101 S.Ct. 1245, 1258.

26

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

27

Court of Appeals Reporter

28

28

6 CCAR ___

1
2
3

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.

4

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

5

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

6
7
8
9
10
11
12
13
14
15

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

16

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

17

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

18

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

19
20

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,

33

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

21

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

22

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

23
24
25
26
27
28

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
33
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.

Court of Appeals Reporter

29

6 CCAR ___

1

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

2

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

3

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

4

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

5

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

6
7
8

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

9

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

10

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

11

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

12

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

13
14
15

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.

16
17

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

18
19
20
21
22
23
24
25
26
27
28

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.
34

34

Reduced economic circumstances and cultural

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

Court of Appeals Reporter

30

6 CCAR ___

1

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

2

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

3

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

4

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

5

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

6
7
8
9
10
11
12
13
14
15

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

16

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

17

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

18

integral role in the current well being and future survival of Colville
people, both individually and as a tribal entity. Finding of Fact 36.

19
Bugenig II is the only federal court in our experience to refer to the spiritual health of a tribe. It is

20

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

21

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

22

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.

23

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

24

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

25

by Luther Standing Bear when he said:

26
27
28

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
Court of Appeals Reporter

31

6 CCAR ___

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

1

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

2

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

3

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

4

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

5

not dangerous but hospitable, not forbidding but friendly, Lakota
philosophy was healthy--free from fear and dogmatism. And here I find

6

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

7

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

8
9

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

10

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

11

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

12

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

13

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

14
Forever one man directed this Mystery to change the world He made;

15

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

16

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

17

this man could not understand the other.
But the old Lakota was wise. He knew that man's heart, away from

18

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

19

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

20

nature's softening influence.

35

21
22
23

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.

24
25

35

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.

26
27
28

Court of Appeals Reporter

32

6 CCAR ___

1
2
3
4
5
6

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

7

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

8

patent")

9

36

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.

10
11
12
13

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

37

was appropriated by Congress and

14

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

15

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

16
17
18

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).

19
20
21
22
23
24

36

25

37

26
27
28

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

33

6 CCAR ___

1

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

2

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

3

the Reserve. In accordance with a five-party agreement

4

38

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.

5
6

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

7

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

8

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

9

County unilaterally withdrew from participation in the successful Interim Land Use Planning Agreement

10
11
12
13
14
15
16
17

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

18

compared to those of the Tribes. The Tribes have multiple interests in the Reserve, not the least of which

19

is retaining its culture, physical and spiritual health and welfare.

20

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

21

Reservation. The Tribes have enacted a Comprehensive Land Use and Development Code that is neutral

22

in its application to Indians and non-Indians. The Tribes have closed the Reserve to unrestricted

23

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

24

important food source for the Colville people. Finally, Congress has appropriated millions of dollars for

25

38

26
27
28

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.

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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

2

hundred thousand acres with less than twenty-five residential structures within it. Access to these

3

permanent and summer homes is by a single road that traverses the length of the reserve. The Colville

4

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

5
6
7
8

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

9

The Tribes' ancestors and members have sustained themselves from the land for thousands of

10

years. They harvested the roots and the berries from the plants for food and medicine; they caught salmon

11

the salmon long gone, the Tribes acquired fifty head of elk to establish a large game animal to supplement

12

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

13

the herd. This is the first record of initial efforts to characterize the area as a game reserve. The herd had

14

now grown to over eight hundred animals and is subject to a closely regulated annual hunt.

15

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

16

purchase fee lands and return them to their natural state. Over nine thousand acres have been purchased

17

for this purpose- primarily with federal funds. The Tribes and the federal government are in the midst of a

18
19
20

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.

21
22
23
24
25
26
27
28

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

39

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
39

Exhibit 90 of the evidence introduced at trial.

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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

2

growth management."

3

was written.

4
5
6
7

40

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.

8

CONCLUSION

9
10
11
12

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.

13
14

Robert SIMMONS, Appellant,

15

vs.
COLVILLE CONFEDERATED TRIBES and

16

J. D. SIMMONS, Appellees.
Case Number AP99-010, 3 CTCR 45

17

6 CCAR 30

18
19
20

[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]

21

Argued May 19, 2000. Decided April 15, 2002.

22
23
24
25
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Before Presiding Justice Dupris, Associate Justice Nelson and Associate Justice Pascal.
Dupris, Chief Justice. for the panel.
40

Ibid.

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SUMMARY OF PROCEEDINGS

2

On February 20, 1998, The Colville Tribes (hereinafter Tribes) was notified that the federal

3

government and Washington State were declining to prosecute the Appellee, Joseph D. Simmons and that

4
5
6

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.
41

7

On April 30, 1999, the Chief Judge, Steve Aycock, ruled that the Colville Tribal Adult Court

8

(hereinafter “Adult Court”) did not have jurisdiction over Mr. Joseph D. Simmons because Mr. J.D.

9

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
42

10

For Lack of Adult Criminal Court Jurisdiction.

11

a transfer proceeding in the Juvenile Court pursuant to CTC §§ 5-2-142 through 5-2-145

12
13
14
15
16

The Chief Judge indicated that the Tribes could initiate
43

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

17

and transferred it back to the Adult Court. On September 22, 1999 Judge Gabourie reaffirmed his original

18

order that the Juvenile Court had subject matter jurisdiction and further, the Colville Tribal Court

19

retained continuing jurisdiction over the case.
Appellant filed his Notice of Appeal on September 22, 1999, appealing the Juvenile Court’s

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28

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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.
42

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.
43

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.

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2
3
4
5

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:
1.

matter jurisdiction.
2.

8

3.

11

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.

4.

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.

9
10

Whether the Juvenile Court erred by holding the Court had continuing
jurisdiction over the alleged minor.

6
7

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

12

The one issue before this Court is: Who has jurisdiction over a defendant who is alleged to have

13

committed an offense as a minor and who has turned an adult over the age of eighteen (18) years within

14

the time of the statute of limitations for the offenses alleged?

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44

This is an issue of first impression.

STANDARD OF REVIEW

16

The issue before the Court is a question of law. There are no disputed material facts involved at

17

this stage of the case. For those reasons our review is de novo. See, Palmer v. Millard, et al., 2 CTCR 14,

18

(1996), Naff v. CCT, 2 CTCR 8, 22 ILR 6032, 2 CCAR 50 (1995).

19
20

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

21

birthday of the defendant?” It held no, it did not have jurisdiction. The Adult Court predicated its

22

decision first on the Purpose section of the Juvenile Code, Chapter 5-2, which encourages rehabilitation

23

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

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44

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.

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that, under the Tribes’ Criminal Code, CTC, Chapter 2, an adult criminal case may be closed even if
rehabilitation did not occur. Id.

2
3
4
5
6

The Chief Judge then set out the definitions of “juvenile offender”

45

and “delinquent act.”

46

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

7

jurisdiction. Id. at page 4. The Court resolved the issue of the alleged offender being over eighteen (18)

8

years of age and the Juvenile Court still having jurisdiction by (1) relying on this Court’s holding in In re

9

which the Court of Appeals held jurisdiction of a Minor-In-Need-Of-Care could extend beyond the age of

10

18); and (2) finding that, as a matter of law, the Juvenile Court could retain jurisdiction over an alleged

11
12
13

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.

14

Once the Tribes filed a complaint consistent with the requirements of the Juvenile Code in

15

Juvenile Court, the Appellant herein, Robert Simmons, father of the alleged offender, Joseph D.

16

Juvenile Court never had acquired jurisdiction over J.D. Simmons when he was a juvenile, so it did not

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18
19
20

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

21

against J.D. Simmons, which the Adult Court transferred to the Juvenile Court. The Juvenile Court found

22

it did not lack subject matter jurisdiction and transferred the case to the Adult Court, sua sponte. It is from

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25
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27
28

45
46

“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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2

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

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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;”

17

48

and (3) finding

that the “continuing jurisdiction” could refer to jurisdiction over the alleged offense, and, therefore, the
49

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.

15
16

47

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-

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24
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47

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.
48

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.
49

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.
50

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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51

208, Dispositional Alternatives .
The Adult Court’s analysis of “continuing jurisdiction” found in CTC § 5-2-40(c) does not

2

comport with the plain meaning of the term.

3

that the Juvenile Court would have jurisdiction over the offense until the statute of limitations ran, as

4

52

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

5

modifying its orders therein.” Black’s Law Dictionary, 169 (5th Ed. 1983). There is no reason to reinvent

6

the wheel on this doctrine. There is no tribal custom or tradition offered from either trial courts nor any of

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11

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.

12

The analysis unravels further when it attaches “continuing jurisdiction” to the offense rather than

13

the alleged offender. No legal reasoning is given to support this approach. Such an approach would leave

14

CTC §5-2-208, Dispositional Alternatives, which specifically precludes orders from extending beyond the

15
16

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.

17
18

Rule of Law
By its rulings, the Adult Court put the Tribes in a Catch-22 situation: it dismissed the Tribes’

19

complaints against Appellee Simmons for lack of jurisdiction, and held the Juvenile Court had the

20

jurisdiction to hear the matter and ask that it be transferred back to the Adult Court. Although the parties’

21

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

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28

51

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]
52

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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6 CCAR ___

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Court.

53

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

2

charged with alleged offenses that occurred while the defendant was still a minor, but for which the

3

statute of limitations has not run? We hold yes, it does.

4

The two rules of law on this issue are: (1) the federal rule, in which juvenile courts would retain
54

jurisdiction in cases such as the one herein ; and (2) the Washington State rule, in which jurisdiction

5

attaches at the time of the filing of the complaint, and not at the age of the defendant at the time of the

6

offense . Washington follows the majority rule. See 89 A.L.R. 2d 506 (1963).

7
8
9

55

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

10

prohibit criminal behavior, and to impose penalties for the commission thereof. The Juvenile Code

11

supports this purpose in its sections regarding transferring juvenile offenders to Adult Court. One purpose

12

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
56

57

13

“adult”

14

unambiguous. The Code is unambiguous about its criminal jurisdiction.

and who is a “child or minor.”

The distinction is unambiguous. The distinction is
58

The rule of law that the Court’s

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53

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.
54

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.
55

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).

56

CTC § 1-1-350: Adult: The term “adult” as used in this Code shall mean a person 18 years of age
or older.
57

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.
58

CTC § 1-1-431(b): Acts Submitting Person to Jurisdiction of Tribal Court. (b): The Colville
Confederated Tribes sha

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Aconfederated_colville%3A83839d58140ea177. Public record. Not legal advice.