Henry PAKOOTAS, Appellant,
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Henry PAKOOTAS, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP94-023, 2 CTCR 35, 24 ILR 6113
4 CCAR 1
[Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Lin Sonnenberg, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.
Trial Court Case Number 93-16273]
Argued July 29, 1995. Decided March 24, 1997.
Before Presiding Justice Miles, Justice Bonga and Justice McGeoghegan
Unanimous Panel
BACKGROUND
On August 12, 1993, Henry L. Pakootas appeared before the Colville Confederated Tribal Court. Mr.
Pakootas was initially charged with Attempted Criminal Homicide. The Tribes made a Motion to Reduce The
Charge To Assault, the Court granted the Motion.
Mr. Pakootas entered a guilty plea to the offense of Assault and was sentenced to: (1) $1,000.00 fine with
$750.00 suspended conditionally, and the balance payable by February 12, 1994; (2) Ninety (90) days jail with thirty
(30) days suspended; fifty-eight (58) days credit for time served, with him serving the remainder of the jail time
immediately. Conditions of the suspensions were: (1) file an alcohol and substance abuse evaluation from TCCS by
October 12,1993, and follow recommendations for one year, (2) file progress reports from TCCS on November 12,
1993; February 12, 1994; May 12, 1994; and final compliance report due prior to the Pre-Dismissal Hearing on July
25, 1994. (3) If the defendant is cited for any offenses in any court, he may be brought before this Court to show
cause; and (4) $5.00 court costs.
On August 24, 1994, a Show Cause Hearing was set to determine whether the appellant violated the
conditions of the suspended portion of the August 12, 1993 Trial Court Order. Mr. Pakootas testified he had pled
guilty to Simple Assault in the Federal Court and served a ninety (90) day jail term. He further stated that the federal
conviction was only for threatening to beat up Ben Marchand Jr. and this stemmed from the same incident as the
Tribal Court matter. On cross examination, Mr. Pakootas further testified that the federal conviction was not related
to having a firearm.
The prosecution moved to continue the hearing in order to obtain evidence to contradict Mr. Pakootas’
statement regarding the federal matter, the Court denied the prosecution’s request.
Following the testimony of Mr. Pakootas, Appellant moved the Court to credit his tribal jail sentence with
time he served while in federal custody. The Court denied the motion and reinstated the suspended $750.00 fine, to
be paid by August 24, 1995 and imposed a thirty (30) day jail term to be served on weekends. The appellant appeals
the Order of August 24, 1994.
CONCLUSION
In U. S. v. Wheeler, 435 U.S. 313 (1978), the Supreme Court stated, “When an Indian Tribe criminally
punishes a Tribal member for a violation of Tribal Law, the tribe acts as an independent sovereign.”
Being an independent sovereign, the Tribal Court has the inherent power to administer appropriate
punishment for any violation of Tribal law. This Court must determine if the Trial Court acted accordingly as
prescribed by Tribal law and did not abuse it’s discretion.
Upon review of applicable Tribal laws, this Court finds its Tribal Code and Tribal statutory laws are silent
on this matter. Therefore, this Court must rely on CCT 1.5.05 which states:
“When jurisdiction is vested in the court, all the means necessary to carry into
effect are also governing; and in the exercise of this jurisdiction, if the course of
proceedings is not specified in this Code, any suitable process or mode of
proceeding may be adopted which appears most conformable to the spirit of
Tribal Law.”
It is the opinion of the Court that in order to maintain independence as a sovereign nation; the Tribal Court
must strive to protect Tribal interest. In this instance the Tribal Court determined it was not in the best interest of the
Tribes to give the defendant double credit for time served while in federal custody. The appellant has not shown any
abuse of discretion by the Tribal Court, nor does this Court find any.
For the reasons stated above, the decision of the Tribal Court is Affirmed.
COLVILLE CONFEDERATED TRIBES, Appellants,
vs.
Terrance LARAMIE, Appellee.
Case Number AP97-005, AP97-006, 2 CTCR 65
4 CCAR 2
[Lin Sonnenberg, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.]
Decided April 8, 1997.
Before Chief Justice Dupris
This matter came before the Chief Justice of the Colville Tribal Court of Appeals upon a Writ of Mandamus
filed by the appellant on March 19, 1997 requesting the Court of Appeals to direct the Trial Court to enter a Stay of
Proceedings pending the final determination of the appeals filed herein on March 17 and 19, 1997.
The Trial Court denied the Stay of Proceedings based on the finding that the Order upon which the appeal
is based is not a “final Order,” and, therefore, an appeal was not “perfected.”
In reviewing the relevant law in this matter, this Court finds the issue of whether or not an appeal has been
perfected, including whether or not the order being appealed is a “final order”, is generally within the review of the
Court of Appeals and not the Trial Court. See, Inchelium Water District v. Williamson, APCV91-11159, [1 CTCR 68,
1 CCAR 68], and In Re the Welfare of R.W.W., APJ91-10008/09/10, [1 CTCR 55, 1 CCAR 49], and FriedlanderCurry v CCT, APCV88-8195, [1 CTCR 64, 3 CTCR13, 1 CCAR 64].
The appellant also filed a Motion to Amend the Writ of Mandamus to include the second denial of the
Motion to Stay occurring about March 18, 1997. Because of our ruling, such an amendment is not necessary, and
was not dealt with in this matter.
Based on the foregoing, now therefore,
It is Ordered, Adjudged and Decreed that the petitioner/appellant’s request for a Writ of Mandamus is
granted and the Trial Court is directed to enter a Stay of Proceedings pending the final determination of the Court of
Appeals in this matter.
Lin SONNENBERG, Appellant,
vs.
The Honorable E. FRY, Appellee.
Case No. AP93-15505/15506, 2 CTCR 36, 24 ILR 6172
4 CCAR 3
[Lin Sonnenberg, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Andrea Geiger, Office of the Reservation Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.]
Argued August 26, 1994. Decided April 17, 1997.
Before Presiding Justice Miles, Justice Bonga and Justice Collins
MILES, P.J.
BACKGROUND
On August 9, 1993, a judge trial of the Colville Confederated Tribes v. Roger Everybodytalksabout was
scheduled. Prior to the commencement of the trial, the prosecutor, Lin Sonnenberg, made a Motion to Dismiss based
on insufficient evidence to prove the charges beyond a reasonable doubt. The prosecutor also informed the Court she
had released five (5) individual witnesses from their subpoenas. Subsequently, Judge Stewart denied the Motion to
Dismiss and then adjourned the proceedings.
It was within a matter of minutes that Judge Fry brought the case back into Court on the same cases as
stated above. The prosecutor gave the Court the same information she had presented to Judge Stewart at the prior
hearing. The Trial Court continued the judge trial to be scheduled as soon as possible and sanctioned the prosecutor
$50.00 per person for each of the five (5) witnesses she had released from subpoenas, payable by September 19,
1993.
On August 19,1993, Judge Fry issued an Order Sua Sponte Reducing Terms. The sanctions were reduced to
$25.00 per person for a total of $125.00 payable by September 19, 1993.
On September 3, 1993, the prosecutor filed a Motion for an Order Staying Execution of Order of Terms.
Judge Fry signed the Order Staying Execution on September 9, 1993.
On September 10,1993, Judge Stewart signed an Order of Dismissal with Prejudice, and his findings of the
denied Motion from August 19, 1993 hearing. The reason for the denial of the motion can be found in paragraph 4 of
the Findings, which states “Prosecuting Attorney knew the Court had denied the Motion in the case in December of
1992. The Court feels by waiting to the last day she was expecting the Court to rubber stamp her motion, and this
Court cannot nor will not do this.”
DISCUSSION
This Court does not dispute the Trial Court’s inherent power to impose sanctions or terms it deems
appropriate at the time of a contemptuous act. The criteria is set forth in CTC § 1.6.07 and CTC § 1.12.03. It is the
opinion of this Court that this could have been avoided if the prosecutor had presented some type of evidentiary
material, either by oral or written testimony, to Judge Stewart at the time of the trial on August 19, 1993. This would
have substantiated the rationale and basis for the prosecutor’s Motion to Dismiss.
Any person who practices before any court system should not assume or anticipate an automatic ruling on
any motion. This Court concurs with Judge Stewart’s September 10, 1993 Findings, specifically Paragraph 4. It is
the opinion of this Court that Judge Stewart could have used the remedies found in CTC § 1.6.07, 1.12.03, or
1.13.03(1). However, he did not exercise any of these options.
Therefore, it is the conclusion of this Court if the original presiding judge declines to pursue any corrective
measures for contemptuous behavior, such as sanctions as prescribed by law, it is improper for another trial judge to
initiate further court proceedings which interfere with another trial judge’s judicial responsibilities. By conducting
the second hearing, the second judge abused her discretion by rendering sanctions without the proper authority to do
so. It is clear from the record that Judge Stewart was never removed from hearing this matter, and there is no Court
order authorizing another judge to proceed on his behalf.
ORDER
The Colville Court of Appeals, therefore, reverses the decision of the Trial Court, vacates the Order of
Terms dated August 19,1993 and remands to the Trial Court for closure.
Floyd HOFFMAN, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case Number AP95-023, 2 CTCR 37, 22 ILR 6127, 24 ILR 6163
4 CCAR 4
[Maureen Rosette, Dana C. Madsen Law Office, Spokane WA, counsel for Appellant.
Steve Suagee, Office of the Reservation Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.
Trial Court Case Number CV95-15009]
Arguments heard July 26, 1996. Decided May 5, 1997
Before Presiding Justice LaFountaine, Justice Nelson and Justice Fry
LaFOUNTAINE, P.J.
This matter came before this Appellate panel of Presiding Justice Frank S. LaFountaine, Justice Elizabeth
1
Fry, and Justice Dennis Nelson of the Colville Tribal Court of Appeals, created by the Tenth Amendment (Article
VIII-Judiciary) of the Constitution and By-Laws of the Confederated Tribes of the Colville Reservation for Oral
Arguments on July 26, 1996. After reviewing the records and files herein, and hearing the Oral Arguments, this
Appellate Panel of the Colville Court of Appeals has decided to Affirm the decision of the Trial Court as to the
following findings and/or conclusions, that:
1. The appellant, Floyd L, Hoffman, has failed to introduce clear and convincing proof that he is entitled to
an increase in blood quantum based upon factual proof of additional Indian blood;
2. The appellant, Floyd L. Hoffman, has neither argued nor presented any tribal, state or federal statute or
case law which requires the Tribes in either 1907 or 1937 to afford due process of law to its members in exercising
the Tribes' powers of self-government through adoption and reductions of blood quantum conferred through
adoption;
3. Appellant, Floyd L. Hoffman, has not pled or raised any customs of the Colville Confederated Tribes
related to rights conferred through adoption and blood quantum established through adoption as needed to warrant a
hearing pursuant to CTC § 3.4.04 to determine a custom followed by the Colville Confederated Tribes defining
rights and status conferred through an adoption in 1907 and defining what rights, if any, are protected during a
reduction in blood quantum taking place in 1937; and
4. Appellant's petition for blood degree correction is denied.
Brief Statement of Procedural History
2
On January 12, 1995, the appellant, Floyd L. Hoffman, and other Petitioners filed a Petition for Blood
Degree Correction with the Tribal Court, pursuant to Amendment IX of the Constitution and By-Laws of the
Confederated Tribes of the Colville Reservation and pursuant to the Colville [Tribal] Membership Code, CTC §§
36.7.01 through 36.7.09. Petitioners were Floyd L. Hoffman, a Colville Tribal member; and his children, Wanda J.
Hoffman Bloom, Terry. L. Hoffman, Stacie L. Hoffman, and Earl Hoffman; and the children of Earl Hoffman:
Shawna Hoffman, Sandra Hoffman, Floyd Hoffman, Edith Hoffman and Gilbert Hoffman. Additionally, Petitioners
filed a motion with the Trial Court for an order placing the petitioners' names on an April 7, 1995 claims monies
distribution list.
3
On February 1, 1995, the respondent, the Confederated Tribes of the Colville Reservation (hereinafter
"Tribes") filed an answer to the petition, and on February 2, 1995, Petitioners filed a request for a trial hearing date.
A hearing was held on April 4, 1995 before Chief Judge Mary T. Wynne of the Trial Court. Present at the
hearing were the appellant, Floyd L, Hoffman, and the petitioner, Wanda Hoffman Bloom, and the Tribes was
represented by Steve Suagee of the Reservation Attorney's Office.
Petitioners introduced numerous exhibits and called one witness, Wanda Bloom, daughter of Appellant,
Floyd L. Hoffman, to testify. The Tribes introduced six (6) documents and called Audrey Sellars, Director of the
Enrollment Department to testify. Both the Tribes and the petitioners agreed that in 1907 Joseph and Annie Etue
Ferguson were adopted into the Colville Confederated Tribes as possessing ½ each Indian blood quantum, and
recognized by the BIA as such.
After the trial, on April 20, 1995, the Court requested briefing on whether the adoption of Annie Etue
Ferguson into the Colville Tribe in 1907 as possessing one-half degree Indian blood vested her with a blood degree
which could not be reduced regardless of her factual blood degree. Both Petitioners and the Tribes filed more
evidence with their post-trial briefs.
On September 7, 1995, the Trial Court issued a thirty-three (33) page Memorandum Opinion denying the
appellant's blood correction, and dismissing the other petitioners from the cause of action on the ground that they
lacked standing.
On September 14, 1995, Floyd L. Hoffman filed a Notice of Appeal with the Colville Tribal Court of
Appeals.
Constitutional Amendments Dealing With Tribal Membership
On May 20, 1949, the tribal members of the Confederated Tribes of the Colville Reservation approved
4
Amendment III of the Colville Tribal Constitution by a referendum vote, and Amendment III was later approved
by the Commissioner of Indian Affairs on April 14, 1950. Amendment Ill amended the Tribal Constitution to add
Article VII, Membership of the Confederated Tribes of the Colville Reservation.
Article VII created a new provision governing membership in the Tribes. Article VII recognized as tribal
members the following persons:
(a) All persons of Indian blood whose names appear as members of the Tribes on the official census of
Indians of the Colville Reservation as of January 1, 1937;
(b) All children possessing one-fourth or more Indian blood, born after January 1, 1937, to any member of
the Tribes maintaining a permanent residence on the Colville Indian Reservation; and
(c) All children possessing one-fourth or more Indian blood, born after January 1, 1937, to any member of
the Tribes maintaining residence elsewhere in the continental United States provided that the parent or
guardian of the child indicate a willingness to maintain tribal relations and to participate in tribal affairs.
Article VII (Amendment III) also provided that the Business Council of the Tribes has the power to
prescribe rules and regulations governing future membership in the Tribes, including adoption of the members and
loss of membership, provided:
(a) That such rules and regulations shall be subject to the approval of the Secretary of the Interior;
(b) That no person shall be adopted who possesses less than one-fourth degree Indian blood;
(c) That any member who takes up permanent residence or is enrolled with a tribe, band or
community of foreign Indians shall lose his membership in the Colville Tribes.
On May 9, 1959, the tribal members of the Confederated Tribes of the Colville Reservation approved
5
Amendment V of the Colville Tribal Constitution by a referendum vote, and Amendment V was later approved by
the Acting Commissioner of Indian Affairs on July 2, 1959.
Amendment V amended Article VII, Membership of the Confederated Tribes of the Coville Reservation of
the Tribal Constitution and By-Laws. Amendment V added to Article VII a new Section 3, which provided that after
July 1, 1959, no person shall be admitted to tribal membership unless such person possessed at least one-fourth (1/4)
degree blood of the tribes, constituting the Confederated Tribes of the Colville Reservation.
On March 22, 1988, the tribal members of the Confederated Tribes of the Colville Reservation approved
6
Amendment IX of the Colville Tribal Constitution by a referendum vote, and Amendment IX was later approved
by the Secretary of the Interior on May 19, 1988.
Amendment IX amended Article VII, Membership of the Confederated Tribes of the Colville Reservation of
the Tribal Constitution and By-Laws. Amendment IX added to Article VII a new Section 4, which provided the
following:
(1) that all Indian blood identified and stated as being possessed by all persons whose names appear as
members of the Confederated Tribes of the Colville Reservation on the official census of the Indians of the
Colville Reservation of January 1, 1937, shall be considered Indian blood of the Tribes, which constitute
the Confederated Tribes of the Colville Reservation;
(2) that no tribal member's blood degree will be decreased as a result of Amendment IX;
(3) that pursuant to procedure which shall be adopted by the Colville Business Council, any
(a) applicant for membership, or
(b) Tribal member who is listed on the official census of the Indians of the Colville Reservation of
January 1, 1937, or
(c) Tribal member descended from a tribal member whose name appears on the official census of
the Indians of the Colville Reservation of January 1, 1937, may petition the Tribes, to officially
recognize for enrollment purposes that a tribal member whose name appears on the official census
of the Indians of the Colville Reservation of January 1, 1937, possesses Indian blood that is not
listed on the official census of the Indians of the Colville Reservation of January 1, 1937, and such
Indian blood, when properly authenticated by clear and convincing proof, shall be recognized as
blood of the Colville Tribes.
Standard of Review - Clearly Erroneous
Appellant asserts that de novo review is justified because this case involves "review of documents not
witness credibility" as "in" Kinslow v. Business Committee of the Citizen Band Potawatomi Indian Tribe of
Oklahoma, 15 Indian L. Rptr. 6007, 6009-10 (CB. Pot. Sup. Ct., Feb. 17, 1988). Opening Brief at page 17. The
Court is not rejecting the appellant's assertion of law, but the Court does not believe a de novo review is required in
this appeal.
The Tribes argued in their Response Brief that "a panel of this Court of Appeals has expressly adopted a
'deferential, clearly erroneous standard of review for factual determinations made by the trial court, as articulated in
Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781 (1982).' Colville Confederated Tribes v. Nadene Naff, Case
No. AP93-12001-03, at 2, [2 CTCR 08, 2 CCAR 50, 22 ILR 6032] (Colv. Ct. App., Decision of January 22, 1995)."
Because the Appellate Panel in Colville Confederated Tribes v. Nadene Naff adopted its "clearly erroneous"
standard from the United States Supreme Court's 1982 Pullman-Standard decision, it is instructive to review
subsequent refinements in that standard at the federal level. First, the Pullman-Standard decision based this standard
of review on Federal Rules of Civil Procedure (hereinafter FRCP), Rule 52(a), which in 1982 provided that district
courts' "findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of the witnesses." In 1985, FRCP 52 (a) was revised into its
present wording to provide that trial court "findings of fact, whether based on oral or documentary evidence, shall
not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge
the credibility of the witnesses." The Advisory Committee Notes to the 1985 Amendment state that the amendment
was intended to clarify and standardize application of the "clearly erroneous"standard. The basic purpose was to
ensure that an appellate court would not disregard the standard when trial court factfinding was based on
documentary evidence rather than the court's opportunity to evaluate the demeanor credibility of a witness. The
Advisory Committee Notes also state that the Supreme Court had "not clearly resolved this issue" in the PullmanStandard decision.
Supreme Court decisions subsequent to Pullman-Standard [but prior to the effective date of the 1985
amendment of FRCP 52(a)] do in fact clarify that the clearly erroneous standard must be uniformly deferential to
trial court factual findings, regardless whether the evidence on which they are based is documentary or oral:
... This standard plainly does not entitle a reviewing court to reverse the finding
of the trier of fact simply because it is convinced that it would have decided the
case differently. The reviewing court oversteps the bounds of its duty under Rule
52(a) if it undertakes to duplicate the role of the lower court. If the district
court's account of the evidence is plausible in light of the record in its entirety,
the court of appeals may not reverse it even though convinced that had it been
sitting as the trier of fact, it would have weighed the evidence differently. Where
there are two permissible views of the evidence, the factfinder's choice between
them cannot be clearly erroneous [citations omitted].
This is so even when the district court's findings do not rest on credibility
determinations, but are based instead on physical or documentary evidence or
inferences from other facts.
Anderson v. City of Bessemer City; North Carolina, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12 (1985).
Followed in RCI Northeast Services Division v. Boston Edison Co., 822 F. 2d 199, 202 (1st Cir. 1987) ("It is by now
settled beyond peradventure that findings of fact do not forfeit 'clearly erroneous' deference merely because they
stem from a paper record.")
Appellate courts are also admonished when reviewing a mixed question of law and fact to confine de novo
review to the purely legal aspects of the question, and to strictly avoid engaging in fact-finding while considering
how the law applies to facts found by the trial court. In Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 713-14,
106 S.Ct. 1527, 1529-30 (1986), the United States Supreme Court reversed the Ninth Circuit for making factual
findings on a matter that the district court had not addressed due to its differing view of the law. The Ninth Circuit
had justified doing so on the basis of United States v. McConney, 728 F.2d 1195 (9th Cir. 1984), which the Colville
Tribal Appellate Court adopted in Colville Confederated Tribes v. Nadene Naff as setting the appropriate standard of
review for mixed fact/law questions. Naff at page 2.
Finally, the Supreme Court has articulated the policy behind the broad deference to trial court factual
findings:
... The trial judge's major role is the determination of fact, and with experience
in fulfilling that role comes expertise. Duplication of the trial judge's efforts in
the court of appeals would very likely contribute only negligibly to the accuracy
of fact determination at a huge cost in diversion of judicial resources. In
addition, the parties to a case on appeal have already been forced to concentrate
their energies and resources on persuading the trial judge that their account of
the facts is a correct one; requiring them to persuade three more judges at the
appellate level is requiring too much ... [T]he trial on the merits should be the
'main event'.., rather than a 'tryout' on the road. [Citations omitted.]
Anderson v. Bessemer City, 470 U.S. at 574-75, 105 S.Ct. at 1512 (also quoted in lcicle Seafoods, 475 U.S. at 714,
106 S.Ct. at 1530). In accord with this policy are the Advisory Committee Notes on the 1985 Amendment of FRCP
52(a):
... To permit courts of appeals to share more actively in the fact-finding function
would tend to undermine the legitimacy of the district courts in the eyes of the
litigants, multiply the appeals by encouraging appellate retrial of some factual
issues, and needlessly reallocate judicial authority.
Although the federal law discussed above is not binding on this Court, it derives from the reasoning of the
Pullman-Standard decision that the Colville Tribal Appellate Panel found to be "persuasive" and adopted in Colville
Confederated Tribes v. Nadene Naff.
Under The Tribal Constitution And Membership Code, the Blood Correction Cause of Action is Limited To A
Factual Inquiry In Which A Petitioner Must Prove By Clear And Convincing Evidence That He Possesses A
Greater Degree Of Colviile Blood Than The Tribes Recognizes.
As stated above, in 1949, the Colville Tribal membership approved Amendment III of the Tribal
Constitution by a referendum vote. Amendment III established the 1937 census roll as the base roll of the Tribes, and
also established a minimum one-quarter Indian blood degree as one of the requirements for Tribal membership for
persons born after January 1, 1937. In 1959, the Tribal membership by referendum approved Amendment V, which
restricted the blood degree requirement to one-quarter degree Colville Indian blood.
In 1988, the membership by referendum approved Amendment IX. Amendment IX provides that all Indian
blood possessed by any person listed as a Tribal member on the 1937 base roll of the Tribes "shall be considered
Indian blood of the Tribes which constitute the Confederated Tribes of the Colville Reservation."
Thus, one effect of Amendment IX was to treat the non-Colville Indian blood of the 1937 base enrollees
(and only such enrollees) as Colville blood for purposes of compliance with the 1/4 degree Colville blood
requirement of Amendment V. A second effect of Amendment IX was to preserve all blood degree as a matter of
Tribal constitutional law, regardless of the actual degree of Colville Indian blood possessed. Amendment IX also
provides a way for a Tribal member, or applicant for membership, to establish by "clear and convincing proof" and
in accordance with "procedures ... [to be] ... adopted by the Colville Business Council" that a person listed on the
1937 roll as a Tribal member possessed more Colville Indian blood than is shown on the Tribal roll.
As the evidence record in this appeal shows, and as the Trial Court clearly found, all Tribal census rolls
prior to and including the 1937 roll were riddled with inconsistencies regarding blood degree. Mem. Op. at pages
21-22. Amendment IX in effect resolved those inconsistencies by-- (1) preserving the blood degrees of 1937
enrollees as minimum blood degrees (regardless of the actual blood degree) and (2) providing a way to prove with
clear and convincing evidence that a person actually possessed a higher degree of Colville blood.
In the present case on appeal, it is undisputed that Appellant, Floyd L. Hoffman, is listed on the 1937 roll as
a Colville Tribal member with a blood degree of 5/32. He claims to possess a higher blood degree, and Amendment
IX provides that he must prove it with "clear and convincing proof."
7
The Colville Membership Code, CTC Title 36, provides the "procedures” referred to in Amendment IX by
which a person such as the appellant must prove that he possesses more Colville blood than is listed on the roll. The
Colville Membership Code's procedures for blood degree corrections are found at CTC §§ 36.7.01 through 36.7.09.
The introductory provision states that the purpose of the procedures is "to provide for a fair and unbiased
examination of all blood degree corrections requested by the Tribes or by any other person." CTC § 36.7.
The form of action to correct blood degree is a civil complaint in Colville Tribal Court in accordance with
standard civil procedures except where specifically modified by the Colville Membership Code. CTC § 36.7.02.
This provision does not make any substantive law applicable to this cause of action. The substantive law applicable
to this cause of action is set forth in CTC § 36.7.03 (newly codified at Colville Tribal Law and Order Code, Title 8, §
8-1-242, Standard of Proof), which provides that:
"In all actions for blood degree corrections the plaintiff shall be required to
prove by clear and convincing evidence, that a blood degree other than that
which is listed on the Roll for the person whose blood degree is at issue, is the
correct blood degree and what the precise blood degree to be listed on the roll
should be. There shall be a presumption, rebuttable by the plaintiff, that the
blood degree listed on the roll is correct."
Adopting language from Amendment IX, the plain language of tribal law thus states that "all" blood
correction actions must be based on clear and convincing factual proof. In accord is CTC § 36.1.02 that all means
matters to be proved under the Membership Code must be with clear and convincing evidence.
The Trial Court correctly noted that the clear and convincing standard is an "onerous burden because it
requires that the petitioner produce evidence ... so clear and convincing that the opposition's evidence is plainly
outweighed." Mem. Op. at page 11, citing Kinslow v. Business Committee of the Citizen Band Potawatomi Indian
Tribe of Oklahoma, 15 ILR 6007, (C.B. Pot. Sup. Ct., Feb. 17, 1988) and General Motors Acceptance Corp. v. Bitah,
16 ILR 6002, (Nav. Sup. Ct., August 11, 1988). The Trial Court also noted that federal case law formulations of the
clear and convincing evidence standard are not binding on the Trial Court, but acknowledged that the federal cases
state "essentially the same" standard as the "plainly outweigh" formulation in the tribal court decisions. Mem. Op. at
page 12, n. 9.
Federal cases are not binding on this Tribal Court system, but an examination of the two cited cases from
other tribal courts discloses that those courts did not have occasion to address factors set forth in the federal court
decisions, which are relevant to the present appeal. It is appropriate to consider some of the factors regarding clear
and convincing proof that are discussed in the federal decisions.
First, clear and convincing evidence must convince the trier of fact that the truth of the proponent's
assertion is "highly probable." Colorado v. New Mexico, 104 S.Ct. 2433, 2437-38 (1984) (interstate water allocation
under the Court's original jurisdiction, in which the Court itself is the factfinder). Second, the evidence must cause
the factfinder to be convinced "immediately" or "without hesitation." Cruzan v. Director, Missouri Dept. Of Health,
110 S.Ct. 2841, 2855 n. 11 (1990); Colorado v. New Mexico, 104 S.Ct. At 2437-38 (1984). Third, the underlying
policy reason for use of the clear and convincing evidence standard in civil litigation, as opposed to a preponderance
standard, is to reflect a preference that the risk of erroneous factual determination be allocated primarily, though not
exclusively, to the party who bears the burden of proof, in this case Appellant. Colorado v. New Mexico, 104 S.Ct.
At 2437-38 (1984).
Because the clear and convincing standard of proof is established in a tribal constitutional amendment
approved by the tribal membership, the policy reasons in support of allocating the risk of erroneous factual
determination to Appellant apply with special force in this case. It is not easy to establish entitlement to a blood
degree correction because the membership intended for it not to be easy. There is thus a strong Tribal interest in
preserving the 1937 roll as the starting point for all membership matters, and accordingly a statutory presumption
that the blood degrees on the roll are correct.
Appellant Has Failed To Prove His Burden By Clear And Convincing Evidence That He Is Entitled To An
Increase In Blood Quantum Based Upon Factual Proof.
After reviewing the evidence of the appellant presented to the Trial Court, it is clear to this Appellate Panel
that the appellant has failed to prove by clear and convincing evidence that he is entitled to a blood degree correction
based upon factual proof.
For most of the proceedings before the Colville Tribal Court and the Colville Tribal Court of Appeals, the
appellant was without legal counsel admitted to practice before the Colville Tribal Court. The appellant attempted to
represent himself, though he had the help of the other petitioners, whom the Trial Court eventually found to have no
standing to bring the original lawsuit. The case of the appellant suffered from the lack of a sufficient record to meet
his burden of proof.
As a preliminary matter, Tribes attached an affidavit of Audrey Sellars to their Response Brief and cited to
the affidavit in their Response brief. The Trial Court in its Order dated April 20, 1995 requested only that the parties
brief the issue of adoption. All additional evidence, whether documentary or testimonial, was stricken from the
parties' briefs and was not considered by the Trial Court in rendering its decision. This Appellate Panel adopts this
course of action taken by the Trial Court.
As stated earlier in this opinion, Appellant has the burden of proving "by clear and convincing evidence,
that a blood degree other than that which is listed on the 1937 Roll for the person whose blood degree is at issue, is
the correct blood degree and what the precise blood degree to be listed on the roll should be." CTC § 36.7.03. See
also Constitution, Amendment IX, Art. VII, 4(2)(c), which requires proof "by clear and convincing proof."
This is a heavy burden because it requires that the appellant produce evidence that clearly convinces the
Trial Court, that is, evidence so clear and convincing that the opposition's evidence is plainly outweighed. Kinslow v.
Business Committee of the Citizen Band Potawatomi Indian Tribe of Oklahoma, 15 ILR 6007, 6009 (C.B. Pot. Sup.
Ct. 1988); General Motors Acceptance Corp. v. Bitah, 16 ILR 6002, 6003 (Nav. Sup. Ct. 1988). This burden of
proof is a very difficult level of proof to establish for any blood correction because: (1) people who are required to
establish this high level of proof are not the custodians of the only available official records in existence that
constitute "proof," or admissible evidence, of blood degree. Usually, such records are in the custody of either the
Tribes or the United States; and (2) the records in existence related to Indian blood degree are usually historical
documents containing contradictory information with little or no admissible evidence on the methods used to collect
data for each type of historical document. However, difficult this standard may be, it is the burden established by
Tribal law and the Tribal Constitution which must be met in the Colville Tribal Court before a trial court can
increase a blood degree.
To reach a conclusion on an issue, a trial court must review all of the substantial credible evidence before it.
Substantial credible evidence is that evidence which a reasonable mind might accept as adequate to support a
conclusion. The credibility and weight to be given the evidence is not a function of the number of witnesses called
by the parties or the number of documents submitted into evidence, but rather, the substance of the evidence itself
and the intangible factors which may properly be considered by the trier of fact. Kinslow v. Business Committee of
the Citizen Band Potawatomi Indian Tribe of Oklahoma, 15 ILR 6007, 6009 (C.B. Pot. Sup. Ct.). In other words, the
evidence may be inherently weak and conflicting, yet it may still be considered substantial.
It is well-established that if the evidence is conflicting, it is within the province of the fact-finder to
determine the weight and credibility to be afforded the evidence. Kinslow v. Business Committee of the Citizen Band
Potawatomi Indian Tribe of Oklahoma, 15 ILR 6007, 6009 (CB. Pot. Sup. Ct.).
In the matter before the Trial Court and this Appellate Panel, the Enrollment Office conceded there is no
8
simple formula for evaluating evidence supporting claims for blood degree corrections. The Trial Court agreed in
its Memorandum Opinion. Preferred evidence consists of individualized statements or documents given in some sort
of context that enables the Trial Court to evaluate the reliability of the information, such as individual history cards,
testimony from probate proceedings, and affidavits for allotments or services.
The law provides a framework for weighing such evidence. Affidavits about old events or persons long
deceased are frequently helpful when such affidavits were made at or near the time the event occurred, but this
Appellate Panel is always wary of the motives behind recent affidavits. For instance, a 1910 statement about the
ancestry of someone living in 1910 is generally more credible than a 1995 affidavit about the same person, unless
9
the later affidavit is based on old documents that were not available to the person making the 1910 affidavit. This is
because statements are more reliable when made contemporaneous with an event. The longer the passage of time,
the less reliable the information unless substantially supported by other evidence.
Testimony or written statements by a person familiar with the facts, or personally acquainted to a person
making a statement, are given more weight than testimony or statements by people who are not familiar with the
facts or the person making the statement. Sworn statements are given more weight than unsworn statements.
Likewise, the more formal the setting is when the statement is made, the more weight the law gives to the statement.
For instance, a statement made in a probate proceeding will be given more weight than a statement casually given by
that same person or another in a less formal setting. This is because statements made during probate proceedings are
made in open court by a sworn witness which is subject to cross-examination and impeachment, and subject to
criminal penalties if the witness fails to tell the truth.
This Appellate Panel of the Court of Appeals adopts the above rules for Enrollment appeals and has applied
the above rules to the findings of the Trial Court in this appeal. The evidence and weight given to each piece of
evidence by the Trial Court is discussed below. We affirm the findings and conclusions of the Trial Court.
This Court adopts the finding of the Trial Court that
"Perhaps because the parties decided not to introduce testimony on each
document, many of the documents admitted into evidence, submitted by both
parties, have little weight under the legal principles discussed above [in the Trial
Court's Memorandum Opinion]."
The constitutionally mandated starting point of this appeal is the 1937 Census. The evidence showed and
the parties admitted that the appellant, Floyd Hoffman, is listed on the 1937 Census as possessing 5/32 Indian blood;
Floyd Hoffman's mother, Helen Ferguson, is listed on the 1937 Census as possessing 5/16 Indian blood; Floyd
Hoffman's father, Clarence Hoffman, possesses no Indian blood on the 1937 Census; Floyd Hoffman's grandparents,
Joseph and Annie Ferguson, are listed on the 1937 Census as: Joseph Ferguson ½ Indian blood and Annie Etue
Ferguson 1/4 Indian blood.
At trial, Appellant argued that his blood degree should be increased because Annie Ferguson possessed at
least ½ Indian blood. In support of this argument, the appellant introduced the following evidence:
First, Appellant introduced "Delayed Death Certificate" from the 1935 Census showing that Joseph and
Annie Ferguson possessed 21/32 Indian blood when they died. Under the law as set forth above and adopted by this
Appellate Panel, the death certificates, without more, received little weight by the Trial Court because no evidence
was introduced to indicate that the information upon which the death certificates were based was given in a formal
setting, subject to cross examination and impeachment, or was given by a person personally acquainted with the
Hoffmans.
Second, the petitioner admitted into evidence four (4) fee patent applications, two applications were dated
1928 and two applications were undated, all of which listed Helen Ferguson and Esther Mason Ferguson as
possessing 5/8 Indian blood. No evidence was introduced that these patent applications were sworn applications
made in a formal setting or subject to cross examination and impeachment. Though the applications were personally
made by Helen and Esther Ferguson, no evidence was introduced that information contained in the applications was
verified by the BIA and that the information provided was accurate.
Third, evidence was admitted showing that Esther Ferguson McClung, natural and full sister of Helen
Ferguson Hoffman, Appellant's mother, is an enrolled member of the Colville Confederated Tribes possessing 5/16
Indian blood, while Helen Ferguson Hoffman is listed as possessing only 3/8 Indian blood. In 1983, the children of
Esther Ferguson Mason successfully changed Esther Mason's blood degree to 5/8 Indian blood. This allowed the
children, first cousins to Floyd Hoffman, to enroll in the Colville Confederated Tribes as possessing 5/16 Indian
blood. Applying the above legal framework, this inconsistent information provides little weight in light of the fact
that Esther Ferguson McClung is the only child of Joseph and Annie Ferguson listed on the 1937 Census as
possessing 5/8th Indian blood.
Fourth, Appellant admitted into evidence a 1981 BIA letter stating that if there are "conflicting degrees of
Indian blood" between natural brothers and sisters then the record should be changed to reflect the same level for all
brothers and sisters. This evidence neither weighs in favor nor against Appellant since policy does not indicate
whether the blood degree should be increased or decreased or which blood degree should be preferred in a case,
such as in this appeal, where multiple degrees are listed.
Fifth, the appellant relied on a BIA letter dated February 21, 1910, showing that Joseph and Annie Ferguson
were adopted into the Colville Confederated Tribes as each possessing ½ degree Indian blood. Under the law as set
forth above, the letter, without more, received little weight by the Trial Court because no evidence was introduced to
indicate that the information upon which the letter was based was given in a formal setting, subject to cross
examination and impeachment, or was by a person personally acquainted with the Hoffmans.
Sixth, Appellant submitted Census records from 1899, 1903, 1904, 1907, 1908, 1912-13, 1913, 1924, 1924,
1930, 1933, 1935, 1937, and 1939 that showed: (1) Floyd Hoffman's blood degree fluctuated from 3/16 to 5/32 to
1/8; (2) Helen Ferguson Hoffman's blood degree fluctuated from ½ to 3/8 to 5/16 to 5/32; (3) Esther Ferguson
Mason's (natural sister of Helen Ferguson Hoffman) blood degree fluctuated from 5/8 to ½ to 5/16; (4) Mabel
Ferguson McClung's (natural sister of Helen Ferguson Hoffman) blood degree fluctuated from ½ to 5/16; and (5)
Annie Etue Ferguson's blood degree fluctuated from 21/32 to ½ to "less" than ½ to 1/4 to 1/8.
The Trial Court noted that these records are contradictory on their face. Under the law as set forth above,
such contradictory evidence received little weight by the Trial Court because no evidence was introduced to indicate
that the information contained in the census records were given in a formal setting, subject to cross examination and
impeachment, or was given by a person personally acquainted with the Hoffmans.
Finally, Appellant submitted a school record indicating that Annie Etue Ferguson possessed ½ degree
Indian blood. Again, Appellant has failed to provide supporting evidence to indicate that the information upon which
the school records were based was given in a formal setting, subject to cross examination and impeachment, or was
given by a person personally acquainted with the Hoffmans.
To summarize Appellant's evidence, it is inconsistent. It does not provide a record that supports a finding of
any one specific blood quantum by clear and convincing evidence. This Appellate Panel affirms Court's finding that
it "does not find a clear weight of this [Appellant's] evidence supporting any specific blood quantum."
The Tribes, on the other hand, argue that the appellant's evidence, listed above, fails to prove by clear and
convincing evidence that the blood degree listed on the 1937 Census for Floyd Hoffman is incorrect. In support of
this argument, the Tribes introduced the following evidence that consistently supports a finding that Annie Etue
Ferguson's actual Indian blood degree, as established through heredity, was 1/8th:
First of all, the Tribes admitted into evidence a marked sworn and witnessed affidavit dated March 27, 1905
made by Cora Desautel Etue, Annie Etue Ferguson's mother, and witnessed by the U.S. Indian Agent at the Colville
Agency, Miles, Washington. Though the purpose of the affidavit when made is not clear from the evidence, the
affidavit purports to show a historical and genealogical record of Cora Desautel Etue, her husband and children. The
document indicates that Cora Ferguson herself only possessed 1/4 Indian blood and Annie Etue Ferguson only
possessed 1/8 Indian blood. Applying the legal analysis set forth above, this affidavit received considerable weight
by the Trial Court. It is obvious from the face of the document that the document was made in a formal setting
because it was witnessed and sworn to. In addition, the statement contained first hand information from Cora
Desautel Etue who was intimately familiar with the facts concerning her family.
In analyzing the Tribes' evidence, the Trial Court reviewed the appellant's exhibits of official Colville
"Individual History Cards" for Annie Etue Ferguson, Helen Ferguson, Mabel McClung and Esther Ferguson which
shows that their blood degree quantum was consistent with Cora Etue's 1905 statement. No evidence was introduced
on the setting in which a "Individual History Card" is compiled. However, the Trial Court was aware, from previous
blood degree correction cases, that the "Individual History Card" is one of the main ways for the Enrollment Office
and the BIA to accurately reflect biographical information for each member. For this reason these cards received
considerable weight by the Trial Court.
Finally, the Tribes introduced into evidence a 1968 letter from the BIA approving Colville Business
Council Resolution 1968-50 requesting a decrease of Annie Etue Fergusons blood degree from 1/4 to 1/8. From this
investigation and recommendation by the BIA, the Enrollment Office did decrease Annie Etue Ferguson's Indian
blood on the 1937 Census from 1/4 to 1/8. However, because of the Enrollment's Office interpretation of
Amendment IX as stipulated to by the parties, the Enrollment Office increased Annie Etue Ferguson's Indian blood
on the 1937 Census to 1/4 after Amendment IX was passed. As testified to by Audrey Sellars's at the Trial Court
Hearing, this letter represents official action taken by the Enrollment Office in investigating and correctly
representing the blood degree of Annie Etue Ferguson. For this reason, this letter received considerable weight by
the Court.
From the above, the appellant has failed to meet his burden of proving by clear and convincing evidence
that Floyd Hoffman's Indian blood on the 1937 Census should be increased to a specific blood degree which has
been established as factually correct by clear and convincing evidence. Though Appellant had several documents
admitted into evidence, he relied on only a few of the documents. Appellant failed to show the Trial Court the
importance of each document at the Trial Court hearing. Many of the documents used by the appellant to make his
case were contradictory. Appellant failed to explain the contradictions. In short, Appellant failed to clearly convince
the Trial Court that the 1937 Census reflects a lower blood degree than actually exists. Appellant's evidence was not
so clear and convincing that the evidence supporting the 1937 Census was plainly outweighed. The above findings
and conclusions are affirmed by this Appellate Panel.
The Appellant Has Neither Argued Nor Presented To The Trial Court A Tribal, State Or Federal Statute Or
Case Law Which Requires The Tribes In Either 1907 Or 1937 To Afford Due Process Of Law To Its Members
In Exercising The Tribes' Power Of Self-Government Through Adoption And Reductions Of Blood Degrees
Conferred Through Adoption.
The appellant argued that since Joseph and Annie Etue Ferguson were adopted into the Tribes as ½ blood
quantum each, this amount is a vested right and cannot later be changed.
At the Trial Court hearing, the appellant entered into evidence a BIA letter dated February 10, 1910 which
summarizes the unanimous Adoption July 8, 1907, by the Colville Business Council, that they [Joseph and Annie
Ferguson] be enrolled with the Colville tribe. The BIA letter continued that the evidence clearly establishes that
"both Joseph and his wife [Annie] are ½ blood Indians recognized by the tribe."
The Tribes stipulated to the entry of this document into evidence and Ms. Sellars, Tribal Enrollment Office,
confirmed that Joseph and Annie Etue Ferguson were adopted into the Tribes as each possessing ½ degree Indian
blood. The Trial Court found that there was substantial credible evidence that Joseph and Annie Ferguson were
conferred ½ Colville Indian blood by adoption in 1907.
A dispositive issue in this appeal is, what effect does the adoption into the Colville Tribes of Annie and
Joseph Ferguson have with each having ½ Indian blood quantum? The Trial Court asked the question "If this
adoption vests with the [Appellant] a property right, then can the Tribes later lower the blood degree amount
conferred by adoption based upon heredity findings and use] the process that was invoked here?"
Appellant has shown that adoption into the Tribes did occur in 1907, which conferred a blood degree of ½
by the Tribes. However, Appellant has presented no tribal, state or federal law defining what legal protections for the
legal rights conferred existed in 1907 when Joseph and Annie Etue Ferguson were adopted into the Tribes.
Under modem principles of tribal sovereignty, Indian tribes define their own membership. Under the
existing Colville Tribal Code, adoption into the Tribes is a final, discretionary act by the Council, not a right, and the
Council's decision is nonappealable. CTC § 36.5.01; see also CTC § 36.5.05 (decisions of Business Council final
and no appeal of any kind to any tribunal or other agency for any reason shall be allowed from a denial of adoption
by the Business Council).
The Trial Court and this Appellate Panel are limited in the relief that they can provide. In this matter, the
Trial Court and this Appellate Panel can only grant such relief as the law passed by the Colville Business Council
allows. The appellant has failed to present any tribal, state or federal law which would have prohibited the Tribes, in
exercising their right to define their membership, in 1937, to decrease Annie Etue Ferguson's ½ Indian blood degree
conferred through adoption in 1907.
In addition, the appellant has not argued nor presented any law that would have required the Tribes to
afford Annie Etue Ferguson due process of the law before decreasing her blood degree from ½ Indian blood when
she was adopted in 1907, to 1/4 listed on the 1937 Census. That is, no evidence was presented by the appellant to the
Trial Court that notice and a hearing were required prior to the Tribes decreasing Annie Etue Ferguson's blood
degree on the 1937 Census.
This Appellate Panel of the Court of Appeals reserves judgment on the Tribes' argument
10 that "The Only
Cause of Action Below [Trial Court] Was A Petition For Blood Degree Correction, And Because Such Action Is
Limited To A Factual Inquiry, This Court Has No Subject Matter Jurisdiction Over Appellant's Legal Claims." Any
statement on this argument would constitute obiter dictum, because of our previous ruling in this appeal.
This Appellate Panel of the Court of Appeal reserves judgment on the Tribes' argument
11 that "The Waiver
Of Sovereign Immunity Establishing Jurisdiction Over A Blood Correction Limits The Action To A Factual Inquiry."
Any statement on this argument would constitute obiter dictum, because of our previous ruling in this appeal.
This Appellate Panel of the Court of Appeals reserves judgment on the Tribes' argument,
Protection Claims Must Be Brought Pursuant To The Colville Civil Rights Act,
12 "An Equal
13 Title 56, And Because Such A
Claim Was Not Pleaded or Adjudicated Below, It Cannot Be Considered On Appeal." Any statement on this
argument would constitute obiter dictum, because of our previous ruling in this appeal.
Petitioner Has Failed To Affirmatively Plead Or Prove That, Under Custom Law: (1) Annie Etue Ferguson
Has A Vested Right To The ½ Blood Degree She Received Through The 1907 Adoption; And (2) The ½ Blood
Degree Received Through The 1907 Adoption Was Reduced Illegally, To Warrant The Trial Court To
Conduct A Custom Hearing on This Issue.
The Trial Court stated in its Memorandum Opinion that "[I]f there were no written laws pertaining to the
tribal adoption in 1907, 'custom law' is the relevant inquiry. Unlike Anglo statutory laws on adoption, Indian law is
deeply rooted in the customs and traditions of the Tribes, which is woven into ones lifestyle and beliefs." In Re P.,
J82-3021, 5-6 (Colv. Tr. Ct. 1983); In Re: J.J.S., 11 ILR at 6031-32. Traditionally, "custom" is unwritten law. In Re
P., J82-3021 at pages 5-6. The Trial Court could have requested a "custom hearing" when "any doubt arises as to the
customs of the Tribes... "CTC § 3.4.04
14. Also, see § 56.07 of Colville Tribal Civil Rights Act. However, the
burden of proof is on the appellant in this blood degree correction action to invoke CTC § 3.4.04. Since the appellant
has the burden of proof, he must affirmatively plead that a custom of the Tribes controls the law on an issue
pertinent to his blood degree correction action in order for the Trial Court to request a customs hearing. This has not
been done in this action. In the appellant's petition and subsequent pleadings, no specific allegations have been made
regarding the applicability of custom law pertaining to adoption or blood corrections. Therefore, this Appellate Panel
will affirm the decision of the Trial Court for not ordering a customs hearing.
After reviewing the records and files herein, and being fully advised in the premises, the Court orders as
follows,
It Is Ordered that:
The decision of the Trial Court is affirmed, and the appeal is denied and dismissed.
It Is Further Ordered that:
Reasonable costs and reasonable representative fees are awarded to the prevailing party pursuant to CTC §
36.7.07 and CTC § 36.7.09.
PAGE DELIBERATELY LEFT BLANK
COLVILLE CONFEDERATED TRIBES, Appellant,
vs.
Terrance LARAMIE, Appellee.
Case Number AP97-005, AP97-006, 2 CTCR 49, 2 CTCR 66, 24 ILR 6181, 7 NALD 7013
4 CCAR 22
[Leslie Kuntz, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Trial Court Case Number 96-19258, 96-19259]
Initial hearing held May 16, 1997. Decided June 26, 1997.
Before Chief Justice Dupris, Justice Nelson and Justice Stewart
PER CURIAM
NELSON, J.
We are asked to consider whether a trial court judge can order a prosecutor to go forward with prosecution
of a criminal case after the prosecution has moved to dismiss and the defendant has no objection to a dismissal. We
are of the opinion that a decision to prosecute or not to prosecute lies in almost all circumstances within the
discretion of the prosecutor and accordingly remand this matter to the Trial Court to enter an order of dismissal.
INTRODUCTION
The facts of this case are straight forward. Former Police Chief John Goss was the only witness to observe
the defendant, Terrence Laramie, allegedly driving while intoxicated and driving without a valid operator’s license.
Prior to the date of trial, Chief Goss moved several hundred miles from the Reservation and shortly before
the trial the Tribes made the decision to dismiss the case against Mr. Laramie rather than incur the expense of
transporting and housing Chief Goss for trial.
A day or two before the time set for trial, the Tribes moved to dismiss on the grounds stated - to which the
defendant expressed no opposition. Nevertheless, the Trial Court denied the motion and ordered the matter be reset
for trial and the Tribes subpoena Chief Goss to testify. Not surprisingly, the Tribes took umbrage and appealed.
OPINION
The United States Supreme Court
15 considered a similar issue in Heckler v. Chaney, 470 U.S. 821, 105
S.Ct. 1649, 84 L.Ed.2d 714 (1985), in which it held that agencies are generally free to set their own enforcement
agendas. The court held:
“... an agency’s decision not to prosecute or enforce, whether through civil or
criminal process, is a decision generally committed to an agency’s absolute
discretion.” 470 U.S. at 831
Discretion with respect to enforcement decisions is generally desirable because a decision not to enforce a
law or regulation often involves a complicated balancing of a number of factors which are peculiarly within the
expertise of the prosecuting agency. There must be an assessment whether a violation has occurred and what
resources are best spent on a particular violation or another. Decisions must be made whether going forward with
prosecution fits the agency’s overall policies and whether there are sufficient resources to undertake the action at all.
Shell Oil v. Environmental Protection Agency, 950 F.2d 741 (C.A.D.C. 1991).
Thus an enforcement agency is “far better equipped than the courts to deal with the many variables
involved in the proper ordering of its priorities.” Chaney at 831-832.
In a case concerning a selective prosecution, the U.S. Supreme Court held “as long as the prosecutor has
probable cause to believe the accused committed an offense defined by statute, the decision whether or not to
prosecute...generally rests entirely in his discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54
L.Ed.2d 604 (1978).
For the reasons stated the Panel is of the opinion that the facts of this case make it one that falls within the
discretion of the prosecution whether to dismiss or go forward and It is Therefore Ordered that the appeal of the
Colville Confederated Tribes is Granted and this action is Remanded to the Trial Court to enter an Order Granting
the Tribes’ Motion to Dismiss.
Dayton BACHAND, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case Number AP94-028, 2 CTCR 50, 24 ILR 6179, 7 NALD 7013
4 CCAR 23
[Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Wayne Svaren, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.
Trial Court Case Number 94-17308, 94-17309]
Arguments heard April 12, 1996. Decided July 9, 1997.
Before Chief Justice Dupris, Justice Bonga and Justice Miles
PER CURIAM
DUPRIS, C.J.
SUMMARY OF PROCEDURES
On November 4, 1994 the Appellant filed a timely Notice of Appeal with the Colville Court of Appeals
pursuant to CTC § 1.9.03. The initial hearing pursuant to CTC § 1.9.05 was held on January 9, 1995, at which time
Rebecca Baker, Justice Pro-Tem, was designated as the Presiding Justice. After the Briefing Schedule was entered
into the record, Presiding Justice Baker signed an Order recusing her from the case in April of 1995. In June of 1995
Chief Justice Dupris assumed the duties of Presiding Justice in this matter. Oral arguments were heard on April 12,
1996.
SUMMARY OF COURT OF APPEALS RULING
For the reasons stated below, the Court of Appeals holds that the appellant was adequately and
appropriately informed of his essential rights prior to his entering of his guilty pleas. Further, he was adequately and
appropriately informed of the nature of the charges against him, to which he voluntarily and knowingly waived his
rights, knowing the potential penalties he faced. Based on its holding, the Court of Appeals affirms the Trial Court's
decision and remands the matter to the Trial Court for disposition consistent with this order.
FACTS
The record shows the following salient facts in this matter. On July 10, 1994 the appellant was charged by
citation complaint for the charges of Possession of a Controlled Substance, Less than 40 [Grams], and Possession of
Drug Paraphernalia. The citation states the appellant, a male Indian
16 resident of Usk, Washington, committed the
cited offenses on July 10, 1994 at the Nespelem Celebration Grounds.
The appellant was arraigned on the charges on July 24, 1994. The record shows the trial judge read the
rights of the defendants in the courtroom collectively, and just once
17. He then would ask each individual if he
understood the rights. The record shows when the appellant came before the Court he indicated he understood his
rights and entered a guilty plea to both charges. The judge asked him very specific questions about his understanding
of the consequences of entering a guilty plea.
18 The appellant answered each of the questions, corrected one
statement in the police report read into the record to support the charges, and agreed to the remainder of the facts
alleged in the report.
19
At the same hearing the judge ordered a pre-sentence investigation, and set the matter for sentencing at a
later date. After the guilty pleas were accepted, but before the sentence was entered, the appellant requested
appointment of the public defender as legal counsel; this request was granted.
The appellant was represented at the sentencing on September 22, 1994. The record does not indicate the
appellant requested to withdraw his guilty plea at the sentencing; nor does it show the appellant challenged the
validity of the citation complaint or taking of the guilty pleas at the arraignment at any time before or during the
sentencing before this appeal was filed.
ISSUES PRESENTED
The appellant has raised four issues for the Court of Appeals: (1) Whether the Trial Court erred by not
making a specific finding on record that the appellant was "Indian," thereby depriving the Court of personal
jurisdiction over the appellant; (2) Whether the Trial Court erred in accepting the guilty plea because the record is
silent regarding what controlled substance and paraphernalia the appellant possessed in order to constitute the crimes
charged; (3) Whether the Trial Court erred in accepting the guilty plea because the appellant was not fully informed
of the charges, his rights, and the consequences of his guilty pleas; and (4) Whether due process was violated
because the citation complaint does not state with specificity what substance and what paraphernalia formed the
basis of the charges against the appellant.
I. Did the Trial Court err by not making a specific finding on record that the appellant was “Indian,” thereby
depriving the Court of personal jurisdiction over the appellant?
The appellant argues the Trial Court erred in not establishing on the record that the appellant was an
"Indian." The cases cited to this Court by the appellant support the rules that tribal courts do not have criminal
jurisdiction over non-Indians and the federal court may proceed against Indians criminally.
20 This is not disputed
by the appellee. The real issue raised by the appellant is the sufficiency of the record to support an initial finding by
the Trial Court that it has personal jurisdiction over the appellant.
The record shows the citation complaint has a section which identifies, as one of the elements of the
citation, the "race" of the person being charged. The record further shows the letter "I", commonly understood to
stand for "Indian" when indicating race, is on the citation in question in this matter. It has not been disputed.
Appellee argues that the persuasive rule for the Court to adopt is found in U.S. v. Buckley, 689 F.2d 893,
897 (9th Cir., 1982): when a challenge to a charging document is first raised after a finding of guilt, a court will
should construe the document liberally in favor of the charging document's validity. See also, State v. Kjorsvik, 117
Wn2d 93, 812 P2d 86 (1991). We agree.
The record indicates the citation complaint states the appellant is an Indian; the record further indicates the
appellant signed the citation complaint, promising to appear for the arraignment on July 24, 1994, and did appear.
The record does not indicate that the appellant, nor his attorney at any time before the entry of the judgment and
sentence contested the citation complaint's allegation that he was an Indian. There is nothing in the record that would
divest the Trial Court of personal jurisdiction over the appellant. We so hold.
II. Did the Trial Court err in accepting the guilty plea because the record is silent regarding what controlled
substance and paraphernalia the appellant possessed in order to constitute the crimes charged?
The appellant argues the Trial Court informed the appellant of the statutory language constituting the two
crimes charged, but did not inform the appellant of the exact actions of the appellant that formed the violations
charged. In support of his argument, the appellant cites the Court to U.S. v. Boykin, 395 U.S. 238 (1969), State v.
Barton, 93 Wn2d 301, 609 P2d 1353 (1980), and Quileute Indian Tribe v. LeClair, 20 ILR 6154 (1993). He also
directs the Court to CTC § 2.4.01, which states, inter alia, the Trial Court must inform defendants of their right to
counsel.
21
Appellee argues the two possession charges are stated in plain language and require no special explanation
for a person of ordinary intelligence to comprehend, i.e. Possession of a Controlled Substance, Less Than 40
[Grams], and Possession of Drug Paraphernalia. The appellee further argues the record is clear the appellant was
informed of all of the precise facts supporting the specific elements of the crimes charged when the police report
was read into the record. We agree.
We also agree with the appellee that LeClair, supra, is distinguishable from the facts in this matter. In
LeClair the charging document listed the state statutes violated, and added "Driving While Intoxicated
(Suspended)," with nothing more. In this case the very nature of the charges require more specificity in their citation.
In reviewing the citation and the facts stated on record from the police report, the Court finds the appellant had
adequate notice of the specific actions he committed to be charged.
III. Did the Trial Court err in accepting the guilty plea because the appellant was not fully informed of the
charges, his rights, and the consequences of his guilty pleas?
The appellant cites CTC §§ 2.4.01 and 2.4.02 in support of his argument that his guilty pleas could not be
considered voluntary in this instance. He reasons that (1) mere citation of the charges found in the statutory language
is not sufficient to inform him of the nature of the charges; (2) merely asking him if he knew he was entering the
plea without the advise of an attorney; and (3) reading the possible penalties are all insufficient to meet the standards
of due process found in the Civil Rights Statute at CTC § 56.02 et seq. Again the appellant cites us to Boykin, Barton
and LeClair, supra.
The appellee avers the record is replete with evidence the appellant knew the nature of the charges, of his
right to counsel, and of the consequences of pleading guilty. The appellee cites to the record with specificity on
when the Court told the appellant of these rights and consequences.
It appears the appellant is asking this Court to hold that unless the words used by the Trial Court regarding
the reading of the rights and taking of the guilty pleas say exactly what is cited in the federal cases, they are
insufficient. We disagree with his reasoning. Boykin holds that the act of accepting a guilty plea must make sure [the
defendant] has a full understanding of what the plea connotes and of its consequences." Id at 1710.
In this case, the defendant was told of his right to an attorney, and after he entered a guilty plea, he was
asked if he understood he was doing so without first talking to an attorney. Common sense dictates this gives the
appellant notice of his right to counsel. This practice would meet the Boykin standard. Further, the appellant was told
with specificity of the maximum penalty each charge carried for which he could be liable. This certainly passes due
process muster for informing the appellant of the consequences of pleading guilty to the charges. We hold for the
appellee on this issue.
22
IV. Was due process violated because the citation complaint does not state with specificity what substance and
what paraphernalia formed the basis of the charges against the appellant?
This issue is very similar to that found in Part II, above. It again goes to the sufficiency of the charging
document. The appellant alleges his due process rights were violated because the citation did not state with
specificity each element of the offenses charged. In support of his arguments the appellant directs this Court to CTC
§ 2.2.01, to a published Trial Court decision, CCT v. Gary Stensgar, 1 CTCR 66 (1993), and to an appellate decision,
Francis Louie v CCT, [AP93-16188, 2 CTCR 05, 2 CCAR 47], 21 ILR 6136, [7 NALD 7013] (1994). These
authorities, asserts the appellant, state the citation complaint must state the "description of the offense charged" with
specificity.
The appellee responds that Stensgar states the citation must set forth the "essential elements," and the
citation in question does this by putting the appellant on notice he is charged with possessing less than 40 grams of a
controlled substance, and possession of drug paraphernalia. Further, the appellee argues the appellant has misread
Louie.
Upon the review of the record and the authorities presented in this case, we now hold the appellant was
given sufficient notice of what substance and paraphernalia formed the basis of the charges against him.
Louie is distinguishable from this case. It stands for the proposition that the complaint must provide
specific details of an offense charged so a defendant would have the opportunity to formulate a defense. Id at 6136.
The concern in Louie, however, was that the charging document stated the wrong place where the alleged crime took
place, thereby giving the defendant inadequate notice of an essential element of the charge against him. Id.
In this case, in order to formulate a defense to the charge, the defendant would have to know the nature of
the charges (Possession of Less Than 40 Grams and Possession of Drug Paraphernalia), the time of the offense (July
10, 1994 at 0059 hours), the person charged (Dayton Bachand), and the character of the property involved (drugs
and drug paraphernalia). See Citation Complaint, Court entry #2.
Also, although not controlling on this Court's decision because it is from the Trial Court, Stensgar is met in
this case, too, in that all of the "essential elements" of the charge are present on the charging document.
23 Further,
the appellant was fully informed of the nature of the charges when he was read the police report at the taking of the
guilty plea.
For the reasons stated above, this Court now Affirms the Trial Court's decision in this matter, Dismisses this
appeal, and Remands this case to the Trial Court for disposition consistent with this opinion order.
Mark G. BROWN, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case Number AP94-029, 2 CTCR 51, 24 ILR 6245
4 CCAR 28
[Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Leslie Kuntz, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.
Trial Court Case Number 92-15491, 92-15492]
Arguments heard August 18, 1995. Decided July 18, 1997.
Before Presiding Justice McGeoghegan, Justice Bonga and Justice Miles
McGEOGHEGAN, P.J.
PER CURIAM
This matter came on regularly before the Colville Confederated Tribes Court of Appeals panel of Presiding
Justice Earl L. McGeoghegan, Justice David Bonga, and Justice Wanda Miles.
INTRODUCTION
In this case, the appellant, Mark Brown appeals the action of the Court at a Show Cause Hearing held more
than one year after his original sentence. The Court reinstated part of his jail sentence and reimposed the full fine
from convictions of Driving Under the Influence and Driving While License Suspended. Mr. Brown asserts the
Court lost jurisdiction a year after sentencing where no Pre-Dismissal Hearing was scheduled and, the Court abused
its discretion by imposing jail and fines when Mr. Brown failed to pay his fine as ordered. We disagree that the
Court lost jurisdiction over the appellant but, find that reinstatement of suspended jail and suspended fine was error.
PROCEEDINGS
On April 12, 1993, Mark Brown received a combined sentenced for convictions of Driving Under the
Influence and Driving While License Suspended. He was fined $750.00 with $250.00 suspended and to serve 60
days in jail with 58 days suspended and credit for two days served on condition he have no driving or alcohol related
violations for a period of one year, i.e. until April 12, 1994. The remaining $500.00 of his fine was to be paid by
August 12, 1993. No Pre-Dismissal Hearing was scheduled by the Court. On October 20, 1994, at a Show Cause
Hearing, the Court reinstated the original $750.00 fine allowing six months to pay and reimposed eight of the 58
suspended days jail. Appeal of that decision was timely filed and the sentence was stayed pending appeal.
ISSUES
The issues before the Appellate Panel are: 1) Whether the Trial Court lost jurisdiction over the appellant
where no Pre-Dismissal hearing or Show Cause hearing was scheduled prior to one year having elapsed from the
date of sentencing and, 2) Whether the Court abused its discretion when the original fine and suspended jail were
reimposed at a Show Cause hearing.
1. The Court did not lose jurisdiction when a Pre-dismissal hearing was not scheduled at sentencing and a
Show Cause hearing was set more than one year after sentencing.
The appellant asks the Court to interpret CTC 2.4.05 to limit the Court's jurisdiction over convicted persons
to one year from the date of sentencing. The Court has not previously construed CTC 2.4,05 which states:
Pre-dismissal Hearing
a) At the sentencing, the judge shall set the time and date for the pre-dismissal
hearing by court order.
b) The pre-dismissal hearing shall be scheduled for not less than two weeks prior
to the termination date of the conditions imposed in the sentence.
c) It will be the defendant's responsibility to submit written proof to the Court
showing he/she has complied with conditions set forth in the sentencing order.
The written proof must be signed by:
1) the program counselor assigned to the defendant;
2) the defendant's immediate supervisor, if community' service were ordered;
3) any other person directly associated with a program used by the defendant to comply
with the Court order, or
4) the defendant's probation officer.
If more than one program is being used, written proof must be submitted for each, except
if the defendant is on probation, his/her probation officer may verify compliance with the
other programs involved. d) If the defendant files proof of compliance with the terms of
his sentence as set out in c) above he does not have to appear at the pre-dismissal hearing.
e) The prosecutor and/or defense counsel may move to strike the pre-dismissal hearing
and close the case if the defendant has submitted proof of compliance. This motion must
be filed no later than 3 days prior to the hearing. f) If the defendant has not complied with
the sentence or has failed to submit written proof to the court as described in c) above, a
show cause hearing shall be scheduled within ten (10) days of the pre-dismissal hearing
for the purpose of determining if the suspended fine and/or jail term should be reinstated
or modified. g) If the defendant fails to appear without good cause and has failed to
provide written proof to the Court of his/her compliance with the sentence, the Court may
issue a bench warrant for the defendant to be brought before the Court.
The language of the statute is clear in requiring that a Pre-Dismissal hearing be set at the sentencing and, a
Show Cause hearing related to such a Pre-Dismissal hearing be held within 10 days of the Pre-Dismissal hearing.
Notwithstanding the requirements of the statute, failure of the Court to set a Pre-Dismissal hearing and related Show
Cause hearing does not divest the Court of all reasonable means to enforce and give effect to its criminal sentencing
orders where the Business Council has not specifically expressed such a termination of the Court's jurisdiction. CTC
1.5.05, Means to Carry, Jurisdiction Into Effect, provides guidance to the Court in exercising its jurisdiction and
states "When jurisdiction is vested in the Court, all the means necessary to carry into effect are also given; and in the
exercise of this jurisdiction, if the course of proceeding is not specified in this Code, any suitable process or mode of
proceeding may be adopted which appears most comfortable to the spirit of Tribal Law." There is no restriction
expressed in CTC 2.4.05 that would limit the Court's ability to schedule a Show Cause hearing at any other time or
for any other reasons related to the convicted person's sentence and, the Court in doing so would be acting to the
spirit of Tribal Law. We will not diminish the Court's authority in criminal sentencing matters absent legislative
action.
2. The Court below erred when it reinstated the appellant’s original fine and reimposed part of the
appellant’s suspended jail sentence.
Sentencing places a burden upon both the Tribes and the convicted person to see that the terms and
conditions of sentencing are complied with and completed as outlined in the sentencing order. If a convicted person
needs relief from the Court in order to meet a term of sentencing he may make reasonable requests to include
additional time for payment of fines and the Tribes may take similar action including Show Cause hearings to
enforce provisions of a sentence not fully completed by the defendant. Failure of the Tribes to pursue fine payments
does not excuse a convicted person from paying the fine. Where the defendant has failed to complete his sentence as
prescribed, the Court may reinstate or impose any part of the suspended sentence where the defendant has violated a
condition of suspension. In this case, the appellant's suspended fine and jail sentence were conditioned upon the
appellant not having any driving or alcohol related violations for one year from the sentencing date. The court record
reveals that at the Show Cause hearing the Tribe's case file showed no violations reported or entered for a period in
excess of one year from the appellant's sentencing. We do not assume that payment of the $500.00 fine by the due
date was a condition of suspending a portion of the fine and jail where the record of judgment and sentencing is
clear. Since the conditions suspending parts of the sentence were completed by the appellant, those suspended
provisions of jail and fine should not have been acted upon by the Court in dealing with the appellant's failure to
complete his sentence. The only issue of the appellant's sentence left before the Court at the Show Cause hearing
was why he had not paid the $500.00 owing on his fine by August 12, 1993.
CONCLUSION AND ORDER REMANDING
Based upon the foregoing, we hold that the Court's jurisdiction over a criminal defendant does not expire
for failure of a trial court to schedule a Pre-Dismissal hearing at sentencing or to hold a Show Cause hearing related
to a Pre-Dismissal hearing under CTC 2.4.05 within one year of the date of sentencing. This case is remanded to the
Court below to address payment of the fine due and owing from Mr. Brown. The fine can be satisfied by the
appellant through completion of community service or credit for jail time served in accordance with provisions of
the CTC.
In Re the Contempt of Wippel
(In Re the Welfare of A.T.)
Dana WIPPEL, Appellant.
Case Number AP97-010, 2 CTCR 52, 24 ILR 6249
4 CCAR 31
[Lin Sonnenberg, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Steven D. Aycock, Legal Services, Colville Confederated Tribes, Nespelem WA, counsel for the minor.
Theodore J. Schott, Nordstrom Nees & Janecek, Spokane WA, counsel for Trial Court/Appellee.
Juvenile Court Case Number J94-13069]
Initial hearing held July 18, 1997. Decided July 31, 1997.
Before Chief Justice Dupris, Justice Nelson and Justice Bonga
PER CURIAM
NELSON, J.
The Appellate Panel, having convened on July 18, 1997, for the initial hearing in the above referenced
matter and having reviewed the files herein and the comments of those attorneys present, remands this matter to the
Trial Court for the purpose of completing the record
24 regarding its Order of Review Hearing, entered March 17,
1997.
In matters of direct contempt the Trial Court must have personal knowledge of all the essential elements of
the offense and be in position to evaluate the circumstances which evoked the contemptuous behavior. Nielson v.
Nielson, 38 Wn.App 586, 687 P.2d 877 (Wash.App. 1984). See CTC 1.2.11, Applicable Law.
The record before the Appellate Panel shows Ms. Wippel, with several others, appeared so late for a
hearing that it could not be held because of other matters scheduled. Ms. Wippel was summarily sanctioned with a
fine of Twenty Five Dollars ($25.00). The record is devoid of any inquiry into the “circumstances which evoked the
contemptuous behavior” for which Ms. Wippel was sanctioned. The Trial Court must, at a minimum, inquire
whether there was an explanation excusing or mitigating her late appearance for the hearing.
Therefore, It is Ordered this matter be remanded to the Trial Court for action consistent with the foregoing.
Billie MARTIN, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case Number AP95-029, 2 CTCR 53, 24 ILR 6246
4 CCAR 32
[Jeffrey Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Lin Sonnenberg, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.
Trial Court Case Number 95-18200]
Arguments heard July 26, 1996. Decided August 4, 1997.
Before Presiding Justice Fry, Justice LaFountaine and Justice Stewart
FRY, P.J. for the majority.
This matter came before the Court on a Notice of Appeal filed November 21, 1995. Oral arguments were
heard on July 26, 1996. The appellee was represented by Lin Sonnenberg of the Tribal Prosecutor's Office
(hereinafter the Tribe), and the appellant was represented by Jeffrey Rasmussen of the Tribal Public Defender's
Office (hereinafter the Public Defender).
The Court, having reviewed the records and files herein, and being fully advised in the premises, finds
good cause to affirm the decision of the Trial Court, now, therefore, the memorandum opinion issues as follows:
I. FACTS
The appellant pled guilty to the charge of Battery on September 19, 1995, against her 12-year old daughter.
She was sentenced on November 20, 1995 at the Omak Satellite Court.
Prior to the Sentencing hearing, the public defender and the Tribe were provided copies of the Pre-Sentence
Investigation Report (hereinafter PSI report) filed by the Colville Tribal Probation and Parole Department
(hereinafter the Department). The PSI report, which is file-stamped October 23, 1995, includes language on the first
page that says, “See attached police report (attachment A)”. The Department attached a copy of the police report to
the Court's PSI report, but did not attach copies of the police report to the public defender and Tribe's PSI reports.
The public defender and Tribe had each previously received a copy of the police report. The public defender and the
Tribe claimed on appeal that they did not know that the Court had received and considered the police report prior to
the Sentencing hearing.
At the Sentencing hearing, upon being asked whether there was an objection to the PSI report, defendant's
counsel stated that the defendant disagreed with the police report in several respects; that she was not rude to the
probation office secretary, that much of the family history was inaccurate and not what she reported, that the
defendant felt there was not a Battery, and that the police took it a lot more seriously than she had ever admitted to.
The public defender further stated that the defendant's daughter had threatened to run away, but that she had not
actually run away as reported in the PSI report. Additionally, the public defender stated that the defendant's
daughter had admitted lying on the police report.
The defendant added that her daughter had gone to counseling and it was not in the police report, and she
admitted taking her anger out on her daughter after her boyfriend ran off. The defendant informed the Court her
daughter would be twelve in January and that maybe she should have asked her to come to Court, except that it
hadn't occurred to her to ask her. She said Joan Wak Wak was teaching her how to cope with her daughter.
The judge then requested the Tribe's recommendation. The Tribe corrected the history of offenses on the
PSI report. The Tribe recommended a fine of $1,000.00 with $500.00 suspended, community service in the interest
of justice to pay off the fine, 90 days in jail with 89 days suspended, credit for one day served, $5.00 court costs, and
other conditions.
The public defender then called the defendant to testify. The defendant related to the Court that she was
involved in alcohol counseling, mental health testing, anger management, and attending meetings. She was also
attending parenting skills training, and that she had no income since July, except for welfare. She had been unable to
work for 10-15 years because of her diabetes. She couldn't do community service to pay her fine because she was
afraid she would black out in front of other people. The defendant did not have her alcohol evaluation with her. She
admitted being intoxicated at the time of the incident.
The public defender recommended a $500.00 fine with $400.00 suspended and a payment plan to begin in
February 1996. He also recommended jail time, counseling, and court costs.
The judge stated that she had reviewed the PSI report, and the police report. This was the first time that
either party was aware that the Court had received the police report.
The judge further stated that she had listened to the parties, and the testimony. She stated she agreed with
the defendant that a fine was not appropriate.
In rendering sentence, the judge said the police report showed that the Battery had been egregious in that
(1) the child was 12-years old, (2) she had required medical attention, (3) the defendant was intoxicated, and (4) the
defendant was the mother of the child and in a position of trust with her. In the defendant's favor was the lack of a
significant prior offense history, which included one prior Battery. The judge then sentenced the defendant to no
fine, 90 days in jail with 75 days suspended, credit for one day served and conditions.
The public defender moved to postpone the jail time to allow time to arrange childcare.
The judge inquired as to how much time the defendant needed, and the public defender responded that the
defendant needed until December 4th.
The Tribe had no objection.
The judge then found good cause to grant the motion to extend the jail time to December 4, 1995.
The public defender noted for exception the Judgment and Sentence regarding information not properly
before the court record.
The public defender noted for exception again, stating that there was no serious injury to the minor.
II. ISSUE
1. Was the Trial Court required to hold an additional evidentiary hearing to allow the appellant to have
additional evidence regarding the police report because the appellant claimed surprise regarding the Trial
Court's possession of the police report at sentencing?
III. DISCUSSION
Parties' Arguments
The appellant proffers numerous arguments in this appeal, (1) that the defendant found the police report to
be erroneous, but did not pursue discussion or testimony regarding it because she did not think the Court had a copy
of it, (2) the defendant should have been given an opportunity to rebut the police report information, (3) the
defendant has a right to know what information the Court is considering prior to sentencing, (4) the use of the police
report by the Court violated the defendant's right to challenge inaccurate information, (5) the defendant should have
been given a fact-finding hearing regarding disputed facts which the Court relied upon for the sentencing, (6) “due
process and fundamental fairness require the Court to either conduct such an evidentiary hearing, or to disregard the
disputed information,"
hearsay,"
25 (7) that the defendant has the right “not to be sentenced based upon unsubstantiated
26 (8) the Trial Court abused its discretion in sentencing the defendant to 90 days in jail with 75 days
suspended, and (9) the defendant did not request an evidentiary hearing at the time of sentencing due to surprise.
The appellee argues as follows, (1) the Trial Court has broad discretion “in determining what information it
will consider from the prosecution for sentencing a defendant"
27 under CCT v. St. Peter, (2) St. Peter also notes that
probation officers have broad discretion regarding the information they include in Pre-Sentence Investigation
reports, (3) which may properly include hearsay, (4) inclusion of the police reports in the PSI report was wholly
proper as “was the Trial Court's review of the same,"
28 (5) the appellant should have requested an evidentiary
hearing and in failing to do so, forfeited her right to claim a violation of due process, (6) the burden to request an
evidentiary hearing is on the defendant, (7) the defendant was aware she could have requested a hearing and could
have called witnesses, (8) the Court should not consider extrinsic case law since there is pertinent tribal case law, (9)
the Appellate Court should "examine the extent to which the record shows the Trial Court based its sentence on the
police reports"
29 (10) custom and tradition do not appear in the applicable law section of the Tribal code pertaining
30 and (11) When a sentence falls within the Tribal Code guidelines, the Appellate Court will
to rules of Court,”
only review the process by which punishment is determined to see if it is "shocking to the sense of justice"
31 as a
severe abuse of discretion.
ANALYSIS
The appellant argues that she was unaware until sentencing that the trial judge had received a copy of the
police report. Appellant argues, therefore, that it was a denial of due process to not have been allowed to provide
additional information to the Trial Court at a further evidentiary hearing regarding the police report.
This Court finds it difficult to accept the appellant's argument that she was surprised during sentencing
when she realized that the Trial Court had access to the police report. This Court's view is based upon a review of
the Pre-Sentence Investigation report file-stamped October 23, 1995. The first paragraph of the PSI report is
preceded by the statement "See attached police report (attachment A)."
32 This Court assumes that the appellant read
the statement and understood its meaning.
The appellant claims her copy of the PSI report did not include Attachment A, the police report. Therefore,
appellant concluded, the Trial Court probably did not receive a copy either. The appellant did not go any farther,
though the appellant did not actually know, one way or the other, whether the Court received a copy of the police
report. However, the appellant relied on the view that because she did not receive a copy of the police report, then
the Trial Court must not have received one either.
The question of this Court then becomes, when the appellant received her copy of the PSI report with the
words that the police report was attached, did she have an obligation to determine if the Trial Court's PSI report
included Attachment A? This Court concludes that the appellant did have such an obligation, because the appellant
was the only party who knew that Attachment was not included on her PSI report. Therefore, only she could gain the
knowledge needed to completely prepare for the sentencing hearing by answering the question: Would the Trial
Court be rendering sentence after viewing the police report?
Yet, the appellant failed to meet her obligation of determining whether the Trial Court received a copy of
the police report, though she had approximately thirty days in which to do so prior to sentencing. Therefore, the
appellant cannot now claim it is a violation of her constitutional rights to deny her an additional evidentiary hearing,
claiming she has been denied the ability to completely prepare for the sentencing hearing.
By failing to meet her obligation, the appellant has waived her right to claim violation of due process.
The Court therefore finds an additional evidentiary hearing in this case is not required.
The Court finds that it need not address the other arguments of the appellant in order to arrive at a decision
in this matter.
The Court thus finds good cause to affirm the Judgment and Sentence of the lower court, and remands this
matter to the Trial Court for action consistent with this opinion.
Justice Frank LaFountaine will issue a dissenting opinion.
Justice LaFountaine dissenting.
The Colville Tribal Civil Rights Act requires the Colville Tribal Court to provide criminal defendants due
process of law. This is solemn obligation, which must be vigorously enforced by the Trial Court at every stage of
criminal proceedings.
The Colville Tribal Civil Rights Act, Title 56.02 of the Colville Code reads in part:
“The Confederated Tribes of the Colville Reservation in exercising powers of
self-government shall not ***
(h) deny to any person within its jurisdiction the equal protection of its laws or
deprive any person of liberty or property without due process of law[.]"
CTC 56.02(h).
Because criminal defendants must be provided due process of law, the sentencing of Trial Courts must only
be based upon accurate information. The United Supreme Court requires that Trial Courts only use accurate
information in sentencing criminal defendants.
In Townsend v. Burke, 334 U.S. 736 (1948), the United States Supreme Court held that there is a due
process right to be sentenced only on the basis of accurate information. In that case, the judge in sentencing a
defendant unrepresented by counsel recited his prior criminal record and in doing so treated as convictions three
earlier charges which had been either been dismissed or resulted in a finding of not guilty. The Supreme Court
concluded:
"We believe that on the record before us, it is evident that this uncounselled
defendant was either overreached by the prosecution's submission of
misinformation to the court or was prejudiced by the court's own misreading of
the record. Counsel, had any been present, would have been under a duty to
prevent the court from proceeding on such false assumptions and perhaps under
a duty to seek remedy elsewhere if they persisted. Consequently, on this record
we conclude that, while disadvantaged by the lack of counsel, this petitioner was
sentenced on the basis of assumptions concerning his criminal record which
were materially untrue. Such a result, whether caused by carelessness or design
is inconsistent with due process of law, and such a conviction cannot stand.”
In this case the Trial Court used the police report generated by Tribal Police Officer Cory J. Orr to making
findings that the Battery had been egregious in that (1) the child was 12-years old, (2) she had required medical
attention, (3) the defendant [Appellant] was intoxicated, and (4) the defendant [Appellant] was the mother of the
child and in position of trust with her.
Both counsel for the appellant and counsel for the Tribes were not aware that the Trial Court had received a
copy of the police report and was relying on its factual representations in sentencing the appellant.
Police reports constitute hearsay and are not admissible for evidentiary purposes. This is because police
reports are inherently unreliable for reasons which will not be repeated in this dissent.
The use of police reports by Trial Courts at sentencing hearings without the assent of the defendants and
their counsel is highly suspect, and Trial Courts have the burden of showing that the defendants were accorded due
process of law at sentencing hearings.
In this case, the Court Trial should have not used the police report of Officer Orr in sentencing the appellant
without ensuring due process of law was accorded the appellant. The sentencing of the appellant must be based on
accurate information, and the Trial Court did not ensure that accurate information was used.
I respectfully dissent.
COLVILLE CONFEDERATED TRIBES, Appellant,
vs.
Melvin MEUSY, et al., Appellees.
Case Number AP96-016, AP96-018, AP96-019, AP96-020, 2 CTCR 54, 24 ILR 6248
4 CCAR 37
[Jeffrey Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Lin Sonnenberg, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.
Trial Court case numbers 96-19071 (016); 95-18216 (018); 96-19219/220 (019); 96-19202-205 (020)]
Hearing held July 18, 1997. Decided August 26, 1997.
Before Chief Justice Dupris, Justice Fry and Justice Miles
DUPRIS, C.J.
This matter came before the Colville Tribal Court of Appeals for oral arguments on July 18, 1997. The
Court of Appeals was informed on record by Jeffrey Rasmussen, counsel for all of the appellees except Melvin
Meusy, that Lin Sonnenberg, counsel for the appellant, would not be present because she hurt her back. Mr.
Rasmussen had no arguments to present beyond the arguments presented in the briefs.
The Court of Appeals found it was inappropriate for Ms. Sonnenberg to send a message through Mr.
Rasmussen instead of sending someone from her office, but no sanctions were ordered.
The Court found further that neither party briefed whether the appeals filed by Patricia Ankney, AP96-018,
and Leslie Moses, AP96-019, were properly before the Court in that the Trial Court ruled in both cases to deny the
motions for deferred prosecution partly on Section 3 of the Deferred Prosecution Ordinance, which was held to be
constitutional by the Trial Court. At the Initial hearing held on December 20, 1996, as well as the status hearing held
on March 21, 1997, the parties were instructed by the Court of Appeals to address this issue. This Court finds the
parties have waived this issue, and that the appeals in the Ankney, AP96-018, and the Leslie Moses, AP96-019, cases
should be dismissed, with orders to remand to [the] Trial Court.
The Court found further that at the last hearing on March 21, 996, Mr. Rasmussen was going to assist Mr.
Melvin Meusy in seeking appointment of the public defender’s office in this matter, and that it was the
understanding of this Court that Mr. Rasmussen would be representing Mr. Meusy, but that no actions were taken by
either Mr. Meusy or Mr. Rasmussen for appointment of counsel, so Mr. Meusy is pro se and did not appear at this
hearing.
The Court found further the briefs filed herein were inadequate in addressing the issue of whether the new
deferred prosecution statute was unconstitutional, and that the Court should invite the Tribal Reservation Attorney’s
Office and the Trial Court to file amicus briefs on the issue, now therefore
It is Ordered, Adjudged and Decreed that:
1. Patricia Ankney v. CCT, AP96-018, is hereby dismissed from the Court of Appeals, and the case is
remanded to the Trial Court for disposition.
2. Leslie Moses v. CCT, AP96-019, is hereby dismissed from the Court of Appeals, and the case is
remanded to the Trial Court for disposition.
3. The Court of Appeals invites the Tribes’ Reservation Attorney’s Office, in their capacity as Attorneys
General, to submit an amicus brief on the issue of whether the Tribes’ Deferred Prosecution law is unconstitutional
based on the doctrine of separation of powers. If the Reservation Attorney’s Office wishes to file such a brief, it shall
file one original and three copies, with cases cited attached, no later than October 10, 1997.
4. The Court of Appeals invites the Tribal Trial Court to submit an amicus brief on the issue of whether the
Tribes’ Deferred Prosecution law is unconstitutional based on the doctrine of separation of powers. If the Trial Court
wishes to file such a brief, it shall file one original and three copies, with cases cited attached, no later than October
10, 1997.
5. There will be no further oral arguments set in this matter.
Theresa M. POULEY, et al., Appellants,
vs.
COLVILLE CONFEDERATED TRIBES, Appellees.
Case Number AP96-009, AP96-013, AP96-014, AP96-021, 2 CTCR 39, 25 ILR 6024
4 CCAR 38
[Theresa M. Pouley and Mark Pouley, Attorneys at Law, Arlington Washington, counsel for Appellants.
Steve Suagee, Office of the Reservation Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellees.
Trial Court Case Number CV94-14286]
Arguments heard June 20, 1997. Decided November 21, 1997.
Before Presiding Justice Bonga, Justice Chenois and Justice Nelson
BONGA, P.J.
The Appellate Panel of Justice Edythe Chenois, Justice Dennis Nelson, and Presiding Justice David Bonga
convened for Oral Arguments on June 20, 1997. All parties were present and represented by counsel.
This case presents critical issues about the Colville Tribes' constitutionally based requirements for blood
degree corrections and enrollment denials. The justices after reviewing the file and information submitted to the
Court finds merit in Appellant's position, that the central question of this action is what is the proper blood quantum
of Victor Frank Desautel under the law of the Colville Confederated Tribes, and that in the interests of justice the
decision of the Trial Court is Reversed and this matter is Remanded for a new hearing to determine if the action by
the 1967 BIA correction of Victor Frank Desautel's blood quantum from ½ to 5/8 was valid, and, whether Mr. Victor
J. Desautel's legal residence was on the reservation at the time in question.
FACTS
Felix Desautel was an enrolled member of the Tribes. He died prior to compilation of the 1937 Census Roll
of the Tribes, the Base Roll, and, therefore, his name is not on that roll.
Victor Frank Desautel, son of Felix Desautel, is typewritten on the 1937 Census Roll as being ½ degree of
Indian blood. In 1967 his blood degree was altered in handwriting on the 1937 roll to 5/8 degree by action of the
BIA in response to a request for a blood degree revision of an indirect ancestor, Myrtle Peone.
Victor Frank Desautel's mother, Mary Paul, in 1968 had a properly executed blood degree increase which
ordered her corrected from 1/2 to 4/4 and the blood degree of her descendants corrected "accordingly".
At the time of the birth of each of Victor J. (Skip) Desautel's daughters, Theresa M. Pouley, Deborah
Desautel, and Sandra Lynn Desautel, Skip Desautel, the son of Victor Frank Desautel, was working outside the
boundaries of the Colville Indian Reservation and living with his family in rented homes outside the Colville Indian
Reservation. He testified that he could not find work to support his family on the Reservation. He further testified
that he and his family regularly returned to the Reservation, especially on week-ends, and stayed with his parents in
Inchelium on the Reservation. He and his family received mail at his home off the Reservation and he also received
mail at his parents home on the Reservation.
DISCUSSION
STANDARD OF REVIEW ON APPEAL
The Court of Appeals has jurisdiction to review all issues of law and/or fact in blood degree correction
actions. CTC 36.7.09; CTC 1.9.02A. The Appellate Court engages in de novo review of assignments or errors which
involve issues of law. Wiley v. CCT, [AP93-16237, 2 CTCR 09, 2 CCAR 60], 22 ILR 6059, 6060 (Colv. Ct. App.
1995). When the issues are mixed questions of law and fact then the standard of review remains de novo when the
"administration of justice favors the appellate court". CCT v. Naff, [APCvF93-12001 to 003, 2 CTCR 08, 2 CCAR
50], 22 ILR 6032, 6033 (Colv. Ct. App. 1995), citing, U.S. v McConney, 728 F.2d 1195 (9th Cir. 1984).
Under McConney, the administration of justice favors the appellate court and results in de novo review
when: 1) there is an important legal issue involved; 2) the collaborative process provided by 3 judges minimizes the
chances of judicial error; and, 3) the precedential value of the decision is important. U.S. v McConney, 728 F.2d
1201. Under this standard de novo review is favored when the application of the law to the facts will require the
exercise of judgment about the value underlying the legal principles. The record before the Court in this case is
replete with evidence which substantiates the constitutional nature of the issue, the importance of the precedential
effect, and the necessary value judgments inherent in selecting which evidence should be preferred in enrollment
cases. The Appellate Panel finds that all of the factors are present and thereby formulate a mixed question of law and
fact that favor de novo review.
WEIGHT OF THE EVIDENCE
In Hoffman v. Colville Tribes, AP95-023 [2 CTCR 37, 4 CCAR 4, 22 ILR 6127, 24 ILR 6163], (Colv. Ct.
App, 1997) and Gorr v. Colville Tribes, No. CV 94-14394 (Colv. Tr. Ct., 12-13-96) the petitioners were asking the
Court to accept pre-1937 census records and adopt a blood degree that was contrary to that shown on the 1937 base
census record. In such cases there is a presumption that the blood degree listed on the 1937 census is correct, and it
is not improper to give lessor weight to other census records that present information which is contrary. In this case
all of the census records admitted into evidence were wholly consistent with regard to the petitioners family base
roll ancestor whose blood degree on the 1937 census, under Tribal law, is presumed to be correct. To flatly reject the
information recorded in the census records would "assail the Tribes decision to adopt the 1937 Roll as its base roll.
Doing so would seriously erode the fundamental constitutional standards adopted by the people concerning
protection of the integrity of Tribal membership, and the constitutionally delegated regulatory authority of the
Colville Business Council to regulate Tribal membership. Gorr at 10.
In Gorr the Court noted that it must consider the historical facts and well established Tribal policy, noting
information contained in pre-1937 census record would have been known and presumably utilized in preparation of
the 1937 census. When the pre-1937 records are consistent with the 1937 census the Panel believes the pre-1937
records should be given great weight.
MEMBERSHIP ENROLLMENT
The Colville Constitution as originally adopted in 1938, did not address the question of membership. In
1949, by Amendment III, the Tribe adopted a membership section which provides that Colville membership shall
consist of "all persons of Indian blood whose names appear as members of the Confederated Tribes on the official
census of the Indians of the Colville Reservation as of January 1, 1937," and descendants of tribal members
possessing 1/4 or more Indian blood who meet other requirements regarding residency and maintaining tribal
relations. Amendment V, adopted in 1959, added a proviso which requires that persons admitted to membership after
July 1, 1959 must possess at least 1/4 degree blood of the tribes which constitute the Confederated Tribes of the
Colville Reservation.
At a special election held on March 26, 1988 Constitutional Amendment IX was approved by voters of the
Colville Confederated Tribes. The amendment did two things. First, the amendment provided that all "Indian blood"
identified on the 1937 roll was to be considered Indian blood of the tribes which constitute the Confederated Tribes
of the Colville Reservation regardless of whether it was in fact Indian blood of a member tribe or some other tribe.
In other words the amendment effectively repealed the requirement adopted in Amendment V that persons must
possess 1/4 degree blood of the tribes which constitute the Confederated Tribes of the Colville Reservation.
Second, the amendment nullified numerous corrections that had been made to the roll and approved by the
Bureau. May 18, 1988 Memo from Office of Solicitor to Area Dir., PAO, BIA.
The clear language and policy of Amendment IX, Section 4(1) protects against all blood decreases. The
unrefuted legislative history states that all BIA corrections on the roll were to be reversed.
Mainly, we wanted to assure the membership that no changes could be made to
their Colville blood degree, without due process. Memorandum of CCT
Councilmen, Feb. 5, 1988. To the extent the amendment is interpreted to nullify
corrections to the 1937 roll that have been made over the years, it would not
appear that this action would abrogate or modify any legal right or entitlement
of any tribal member or violate the due process or equal protection provisions of
the Indian Civil Rights Act. Memorandum from Office of Regional Solicitor to
Portland Area Director, PAO, BIA, May 18, 1988. The amendment specifically
provides that no tribal member's blood degree will be decreased as a result of the
amendment...the intent is to negate all subsequent changes and retum to the
original calculations of Indian blood identified on the 1937 roll. Documentation,
Telephone Call or Personal Visit from Colville Tribes; Colville Agency; BIA P.A.
0., to Vernon Peterson, Solicitor's Office, 1-22-88.
Therefore, the starting point of any inquiry regarding enrollment is the 1937 Census that was adopted by
the Colville Tribes' as the base roll for the Tribes, when the Commissioner of Indian Affairs approved Amendment
III to the Colville Tribes Constitution on April 14, 1952. The Trial Court was therefore in error to begin the inquiry
of enrollment for the petitioners with an examination of their relative, Felix Desautel, who was not listed on the
1937 Census roll. The inquiry needs to be started with, Victor Frank Desautel, the direct relative of the petitioners
who is listed on the 1937 Census Roll.
The presumption is that under Tribal law the blood degrees listed for persons appearing on the 1937 Roll is
correct:
In all actions for blood degree corrections the plaintiff shall be required to prove
by clear and convincing evidence, that a blood degree other than that which is
listed on the Roll for the person whose blood degree is at issue, is the correct
blood degree and what the precise blood degree to be listed on the roll should
be. There shall be a presumption, refutable by the plaintiff, that the blood degree
listed on the roll is correct. Colville Tribal Code (CTC) 36. 7. 03.
As stated above, Amendment IX specifically protects a Tribal member's blood degree as listed on the
official census on January 1, 1937, from being decreased. However, to increase blood degree one must follow
procedures which have been promulgated by the Colville Business Council. Constitution, Article VII(2)(a)-(c).
Thus, to increase the blood quantum of a person to be eligible for enrollment the Business Council adopted CTC 36
et seq.
CTC 36.01.01 states:
The Colville Tribal Constitution provides for the terms upon which membership
in the Confederated Tribes of the Colville Reservation (hereinafter Tribes) will
be granted, forfeited, or denied, and empowers the Colville Business Council to
regulate tribal membership. Accordingly, the Colville Business Council finds it
in the best interest of all members and potential members to provide specific
written rules and regulations governing the procedure to be used in determining
membership.
The introduction to CTC 36.7, Blood Degree Corrections, states:
The following procedure shall be used in making corrections (increases or
decreases) of all degrees presently listed on the roll of the Tribes. This procedure
is established to provide for a fair and unbiased examination of all blood degree
corrections requested by the Tribes or by any other person.
Therefore, a Court in this case will need to begin the inquiry with Victor Frank Desautel's 1937 Census Roll
blood degree listing of 1/2, as Amendment IX to the Constitution and Title 36 of the Colville Tribal Code require a
party prosecuting a blood correction begin analysis of blood quantmn with the 1937 rolls and presumes the degree
listed on the 1937 roll is correct. There is no indication in the record that the 1967 handwritten change of blood
degree for Victor Frank Desautel on the 1937 Census Roll from ½ to 5/8 was performed within the Constitutional
requirements for enrollment or that basic due process was provided to the family.
The argument of the appellants is that if a person's blood degree is increased on the base roll, Amendment
IX to the Constitution of the Confederated Tribes of the Colville Reservation requires a consistent increase of the
blood degree of all the person's descendants. The appellants argue that since Victor Frank Desautel's mother, Mary
Paul, had a properly executed blood degree increase from ½ to 4/4, her descendants, starting with Victor Frank
Desautel's 1/2 degree of blood, should receive a proportional increase in their blood degree. Though persuasive, the
Panel does not agree, as Amendment IX protects what is listed on the 1937 base roll from decreases in blood degree
and does not mandate that the descendants, of one listed on the base roll who has received an increase in blood
degree, are entitled to an automatic increase in their blood degree.
CTC 36.7.03 states:
Standard of Proof. In all actions for blood correction the plaintiff shall be
required to prove by clear and convincing evidence, that a blood degree other
than that which is listed on the Roll for the person whose blood degree is at
issue, is the correct blood degree and what the precise blood degree to be listed
on the roll should be. There shall be a presumption, rebuttable by the plaintiff,
that the blood degree listed on the roll is correct.
The appellants are therefore entitled to prove by clear and convincing evidence, pursuant to Amendment IX
and CTC 36 et seq., a blood degree correction for their direct ancestor, Victor Frank Desautel, which may directly
affect their ability to meet the enrollment requirements to become members of the Confederated Tribes.
DOCUMENTATION
Hoffman set forth the standard that sworn statements are given more weight than unswom statements and as
a general rule this is correct. In other words, the standard of proof should remain as set forth in Hoffman, but the
Trial Court is cautioned to review each document for "circumstantial guarantees of trustworthiness" and not
necessarily take the contents of each document at face value.
It is the opinion of this panel that where unsworn evidence shows unusual consistency, it should be given
greater weight than inconsistent, unsworn evidence. As was pointed out at oral argument, Victor Frank Desautel was
consistently shown, without deviation, to be ½ Indian on every census record admitted. While censuses are
admittedly generally unreliable from year to year, where there is a conclusive consistency regarding an individual,
they should be entitled to greater weight.
The Panel also believes that the Tardy Book, which is unswom, is a census document. The Tardy Book is
unique to the Tribes and has been a preferred document for enrollment purposes. The Panel believes that the Tardy
Book qualifies as a traditional Tribal document and should be accorded greater weight than a regular census role which is in accord with the Tribal Court's position that census rolls, whether prepared in 1937 or earlier, are
inherently unreliable as sources of factually accurate blood degrees.
RESIDENCY
Amendment III, Article VII, Section 1, as is reiterated in CTC 36.3.01(3) requires the member parent
"maintained a permanent residence on the Colville Indian Reservation at the time of the applicant's birth." CTC
36.2.12 defines a "permanent residence" as a true, fixed, permanent home to which one has intention of return
whenever absent therefrom." By its very definition, as a matter of law, residence under this definition necessarily
includes an "examination of a person's intent to reside combined with manifestations of that intent. Yellowhair v.
Office of Navajo & Hopi Indian Relocation, 22 ILR 3120 (D. Ariz. 1995).
The record contains conflicting evidence regarding whether Skip Desautel ''permanently resided" on the
Reservation at the birth of his first three daughters. Therefore, on remand, the Trial Court must make further findings
to clarify this issue. This Court has reviewed the evidence on the record below, balanced that evidence in light of
Tribal custom and tradition and traditional rules of evidence and has reached the conclusion that file decision of the
Trial Court is Reversed and the case is Remanded so that the Trial Court can determine if the 1967 BIA correction of
Victor Frank Desautel's blood quantum from 1/2 to 5/8 was valid, and, whether Mr. Victor J. Desautel's legal
residence was on the reservation at the time in question.
PAGE DELIBERATELY LEFT BLANK
Darla CARDEN, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case Number AP96-017, 2 CTCR 40, 25 ILR 6037
4 CCAR 44
[Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Wayne Svaren, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.
Trial Court Case Number 93-16698, 93-16699, 93-16700, 93-16701]
Decided November 21, 1997.
Before Presiding Justice Miles, Justice Fry and Justice McGeoghegan
MILES, P.J.
This matter came before the Court of Appeals on March 21, 1997 for a Motion to Dismiss Appellant’s
appeal based on an untimely filing. The appellant was represented by Jeff Rasmussen, Tribal Public Defender’s
Office. Wayne Svaren, Tribal Prosecutor’s Office for the appellee.
The Court has reviewed the record on appeal, applicable Tribal Law, and after hearing oral arguments of
counsel, this Court Grants Appellee’s Motion to Dismiss based on the following conclusions.
The Trial Court entered and filed its Order from the Show Cause hearing in CCT v. Carden on August 21,
1996. According to the Court Clerk’s certificate of service the appellant was served by interoffice mail on August
23, 1996. The appellant filed her Notice of Appeal on September 5, 1996.
Tribal statutory law requires written notice of appeal to be filed within ten (10) days from entry of
Judgment, CTC 1.9.03. In computing any period of time prescribed by Tribal law, the day of the act or event from
which the designated period of time begins, shall not be counted or included, unless it is a Saturday or Sunday or
legal holiday in which case it runs until the next day. CTC 1.11.5. The Colville Court of Appeals has addressed the
issue of untimeliness based on these statutory requirements. Stanger [sic] v. Stanger [sic], 1 CTCR 40, [1 CCAR
28], (1989), Waters v. CCT, [AP85-7231/32], 1 CTCR 21, [1 CCAR 21] (1985); and Waters v. CCT,
[AP85-7231/32], 1 CTCR 22, [1 CCAR 22] (1985). Based on this case law, which precedent has already been
established, this Court concludes the appellant’s appeal was filed fifteen (15) days after Entry of Judgment and
therefore untimely.
The Trial Court has held that interoffice mail is normal procedure and adequate service. See: e.g., CCT v.
Louie, 1 CTCR 9 (1994) and 1 CTCR 10 (1994). This Court also finds that defense counsel is familiar with the
Tribal Court’s business practices for rendering service for Tribal programs associated with the Tribal Court system.
The mere absence of any individual does not constitute an excusable exception. Delegation of responsibility within
any Tribal structure is essential in order to maintain it’s integrity, while preserving the constitutional right to due
process for the individuals they represent. Perhaps initiating some type of tickler system may provide further
assistance in calculating these statutory time lines.
For the reasons stated above, this Court Grants Appellee’s Motion to Dismiss.
Henry PAKOOTAS, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case Number AP97-015, 2 CTCR 41, 25 ILR 6024
4 CCAR 45
[Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Lin Sonnenberg, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.
Trial Court Case Number 93-16273]
Initial Hearing held July 18, 1997. Decided December 5, 1997.
Before Chief Justice Dupris, Justice Bonga and Justice Nelson
PER CURIAM
NELSON, A.J.
This matter came before the Court of Appeals on July 18, 1997, for Initial Hearing. The appellant, by and
through his attorney, Jeffrey Rasmussen, stated his appeal was partially based upon the Trial Court’s failure to make
Findings of Fact and Conclusions of Law in its Order of April 24, 1997, in which it declined to modify the sentence
of the defendant.
Although there is nothing in the record regarding the issue of tradition and culture as it affects sentencing,
the appellant requested the Appellate Panel to take judicial notice that tradition and culture does not recognize jail
service and that the appellant should not be sentenced to jail.
The Panel declined to take judicial notice as requested and determined the appeal should be dismissed and
the matter remanded to allow the appellant to develop his theory regarding tradition and culture and for the Trial
Court to enter its Findings of Fact and Conclusions of Law, should they be so requested in writing.
ORDER
It is Ordered that the appeal of the appellant is Dismissed and the matter Remanded to the Trial Court for
appropriate action.
Danny Joe STENSGAR, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP94-022, 2 CTCR 42, 25 ILR 6023, 8 NALD 7001
4 CCAR 45
[Dianna Caley, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Lin Sonnenberg, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.
Trial Court Case Number 92-15068]
Argued July 21, 1995. Decided January 13, 1998.
Before Chief Justice Baker, Justice Bonga and Justice Chenois
BONGA, J.
This matter came on for oral argument on the 28th day of May, 1993, with Appellee appearing by
Prosecuting Attorney Lin Sonnenberg and Appellant being represented by Public Defender Dianna Caley. David
Bonga, Edythe Chenois and Rebecca Baker presided.
PROCEDURAL HISTORY
On March 4, 1992, Mr. Stensgar was arrested on the charges of Driving While Intoxicated. On April 22,
1992, Mr. Stensgar plead guilty to the charged offense. Mr. Stensgar’s sentencing date was set for July 29, 1992. The
defendant moved to dismiss the conviction on the grounds that the Court had violated the defendant’s right to speedy
sentencing. The Motion was denied and the defendant was sentenced on July 10, 1992. The defendant timely filed
an appeal, on July 17, 1992, of the Trial Court’s order denying his motion to dismiss.
The Appellate Court met on this matter via telephonic conference call on October 16, 1992. Without oral
argument or briefing, the Court summarily ruled that the Tribes had lost jurisdiction over the defendant, based on
CTC 2.4.04, and dismissed the case, with prejudice, through an Order received by the Trial Court on October 27,
1992. Appellee then moved the Court to vacate the order and set the matter for oral argument pursuant to CTC
1.9.05.
Finding that it had deprived the appellant of the opportunity for oral argument, and concluding that oral
argument was required by CTC 1.9.05, the Appellate Panel on April 19, 1993, vacated the previous Order of
Dismissal, and set the matter for briefing and oral argument. On November 19, 1993, the Appellate Court issued its
opinion upholding the Trial Court’s denial of the motion to dismiss and remanding the matter to the Trial Court for
further proceedings.
In 1994, the matter came before the Trial Court on a hearing for the appellant to show cause regarding
alleged violations of his sentence. At said hearing, the appellant moved the Trial Court to dismiss the case, asserting
that the Trial Court was bound by the Appellate Court’s vacated Order of Dismissal of October 27, 1992 The Trial
Court denied the appellant’s motion. Appellant then filed this appeal.
QUESTIONS PRESENTED
The initial question before the Appellate Panel is whether the Appellate Court had jurisdiction to rehear the
October 1992 appeal after the mandate had been delivered to the lower court on October 27, 1992.
The second question was whether the Trial Court erred in failing to dismiss the charges against the
defendant.
SUMMARY OF DECISION
The Appellate Panel concludes that the issuance of its Order on April 19, 1993, was not a rehearing of the
October 27,1992, telephonic session held by this Appellate Panel. The facts show that the Appellate Panel had
overlooked the requirements of Colville Tribal Code (CTC) section 1.9.05 when it issued its Order of Dismissal of
October 27, 1992. That section pertains to appeals with requirements which call for the Appellate Court to set a case
for hearing within 45 days of the date of the written appeal. At that hearing, the Court is to review the record and
hear oral arguments of the parties. In the 1992 appeal, the Court did not hold the mandated hearing, and the Court
did not hear oral or written arguments of the parties before issuing the October 27, 1992 Order. This decision was
void.
The mistake was brought to the attention of this Court by the Appellee through its motion to vacate and set
for oral argument. This Court had jurisdiction to review and reverse its void decision and ultimately agreed with
appellee, setting the appeal for briefing and oral argument. In 1994 the matter again came before the Trial Court
which denied the defendant’s Motion to Dismiss the case. The defendant’s assertion in this appeal that the Appellate
Court had no authority to hear the case following the October 27, 1992, Order, which therefore invalidated the Trial
Court’s actions after the date is without authority. The Trial Court’s decision to deny the Motion to Dismiss is
Affirmed.
ANALYSIS
The Colville Tribal Code has no specific provision dealing with the Court’s power to reexamine its earlier
mistaken actions. However, the Code does have a provision at CTC section 1.5.05, entitled “Means to Carry
Jurisdiction Into Effect,” which provides:
When jurisdiction is vested in the court, all the means necessary to carry into
effect are also given; and in the exercise of this jurisdiction, if the course of
proceeding is not specified in this code, any suitable process or mode of
proceeding may be adopted which appears most conformable to the spirit of
Tribal law.
(Emphasis supplied.)
While we disfavor frequent reliance on this Code section, it does seem to have application to the instant
case, inasmuch as the CTC is silent as to an error committed by the Appellate Panel. Without more, we turn to
Section 4.1.11 to examine what other law to which the Appellate Court can refer.
4.1.11 Applicable Law
In all cases the Court shall apply, in the following order of priority unless
superseded by a specific section of the Law and Order Code, any applicable
laws of the Colville Confederated Tribes, tribal case law, state common law,
federal statutes, federal common law and international law.
The appellant fails to cite any “laws” of the Colville Confederated Tribes, tribal case law, state common
law [or] Federal statutes” in support of a position which is applicable to this particular case. The appellant relies
upon decisions issued by various courts located in differing states for support of his position. Upon review the
Appellate Court finds that each case is distinguishable from the present situation. However there is a common
denominator which is also found in the federal cases that is revealed in an analysis of the federal common law (case
law).
While a mandate once issued by our Court will not be recalled except for good cause shown, an appellate
court has power to set aside at any time a mandate that was procured by fraud, or to act to prevent an injustice, or to
preserve the integrity of the judicial process. Coleman v. Turpen, 827 F.2d 667 (10th Cir. 1987), Greater Boston
Television Corp. v. F.C.C., 463 F.2d 268 (D.C. Cir. 1971) cert. denied 406 U.S. 950, 92 S.Ct. 2042 (1972). The
federal courts have also ruled that an appellate court has the power to vacate its own judgment sua sponte, even after
a mandate issues. Wolfel v. Bates, 749 F.2d 7 (6th Cir. 1984).
A court may correct formal inaccuracies or clerical errors and rectify mistakes of fact reviewable at
common law by writs of “error coram nobis,” or “coram vobis.” Such writs were available to bring before the court
pronounced judgment errors in matters of fact which had not been put in issue or passed on and were material to
the validity and regularity of the legal proceeding itself (emphasis added). Hiawassee Lumber Co., et al. v.
United States, 64 F.2d 417 (1933).
Thus the Appellate Panel in this case holds that it has inherent authority to correct inaccurate interpretation
of Court procedures in order to preserve the integrity of the judicial process and to prevent injustice.
Did the Trial Court err in failing to dismiss the charges against the defendant?
As stated above, the Appellate Court’s actions of October 27,1992 were invalid, since the clear mandate
established by CTC 1.9.05 was not heeded by the Court. The October 27, 1992, order was based on a false premise
of the Court and enforcement of that Order would undermine the legal system and thwart justice.
It is the opinion of the Appellate Panel that a recall of a mandate is an inherent power of the Court of
Appeals reserved for special circumstances which should be “sparingly exercised.” See Greater Boston Television
Corp., Ibid. Alleged erroneous ruling of law are generally not held to be sufficiently unconscionable to justify
reopening a judgment not void when issued (emphasis added). Hines v. Royal Indemnity, 253 F.2d 111 (6th Cir.
1958); Iverson v. Commissioner of Internal Revenue, 257 F.2d 408 (8th Cir. 1958). As noted above the Appellate
Court holds that the decision of October 27, 1992, was void, and that the Court retained jurisdiction and correctly
vacated the action. Therefore the Trial Court did not err by refusing to dismiss the charges against the defendant.
It is Hereby Ordered that the defendant’s appeal is Dismissed.
Laurie WATT, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP96-023, 2 CTCR 43, 25 ILR 6027, 8 NALD 7001
4 CCAR 48
[Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Leslie Kuntz, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.
Trial Court Case Number 96-19406]
Arguments heard September 19, 1997. Decided January 21, 1998.
Before Chief Justice Dupris, Justice Bonga and Justice Stewart.
DUPRIS, C.J.
SUMMARY OF PROCEEDINGS
On November 21, 1996 the appellant, Laurie Watt, entered a guilty plea to the charge of Driving Without a
Valid License. The Court entered a sentence of jail and fine, with some of the sentence suspended on conditions.
33
The appellant filed this appeal from the Judgment and Sentence entered on November 21, 1996. The Court of
Appeals met on March 21, 1997 for the Initial Hearing; a briefing schedule was ordered on April 4, 1997. Oral
Arguments were heard on September 19, 1997. The Court of Appeals found at the Oral Arguments that the Appeal
should be dismissed.
FACTS
The appellant entered a guilty plea to the charge of Driving Without A Valid License. The prosecutor's
office made a recommendation of a fine of $500.00 with $200.00 suspended and sixty (60) days in jail with fiftyfive (55) days suspended. The appellant's attorney recommended the appellant be allowed to work community
service hours in lieu of the jail time because of extenuating circumstances regarding the care of the appellant's young
child. The Trial Court did not accept these recommendations. The Trial Court did not enter specific findings on the
record regarding the basis of its rulings. However, the record on appeal includes information taken at the sentencing.
ISSUE
The appellant argues that the Trial Court abused its discretion by not allowing the her to serve her jail term
through community service contrary to Tribal custom and tradition.
DISCUSSION
Did the Trial Court abuse its discretion by not substituting community service in lieu of jail time, contrary to
Tribal custom and tradition?
The Court of Appeals must review two things in this appeal: (1) whether there is a custom or tradition
regarding the use of community service in lieu of jail time; and (2) whether the Trial Court abused its discretion in
failing to allow the appellant community service in lieu of jail time.
As to the first question, there is nothing on record to support the appellant's argument regarding custom and
tradition. Appellant cites no authorities regarding the nature of punishment prior to the statutory law of the Tribes.
34
At best the appellant has supported her arguments with suppositions of what she believes custom and tradition is
regarding punishment. She has failed to meet even a minimum burden of showing what is custom and tradition. We
so hold.
Next we decide whether the Trial Court abused its discretion by failing to allow community service in lieu
of jail time in this case. In reviewing for an abuse of discretion it is not the Appellate Panel's duty to decide de novo
the sentence of the appellant. We cannot substitute what we would have ordered in lieu of what the trial judge
ordered just because we may have ruled differently.
The record must show a clear abuse of discretion between the facts of the case and the sentence entered by
the trial judge. We must be shown that the record does not support the trial judge's findings. We cannot find that in
this case. As the appellee has pointed out, the record before the trial judge at the time of the sentencing shows
numerous similar offenses by the appellant. See, for example, Appellee's Amended Response Brief at pp 1-3 (filed
June 24, 1997).
The record also shows that the sentence is well within the statutory limits for the offense charged. See, CTC
§§ 3-3-4
35 and 3-3-40.36 The appellant has not met her burden on this issue either.
We hold that this appeal shall be dismissed and this matter remanded to the Trial Court for disposition
consistent with this ruling.
It is so Ordered.
STEWART, J concurring.
The Colville Tribal Court started in the early 1940's as a Court of Justice. There was only one judge for
years on end. Albert Orr was a quiet, soft-spoken man, and treated every one who came to his court with dignity and
respect. The officers were expected to tell the truth and the defendants knew they could not pull anything on the
Judge, because everyone know what was going on within the Reservation.
There weren't many jury trials. The first time I was in Court as a officer was 1962. The person on trial
asked for a jury and was able to pick his own jury. So, he called for friends from Idaho, Yakima, Spokane, and
maybe a couple of local people. The standard reading went something like this: "you can be represented by a tribal
member as long as it is not an attorney." There was no Court of Appeals until into the 1970's, as I remember it.
As the times changed so did the Court. The Colville Tribal Court took the lead, in many ways, being one of
the bigger reservations in the State. The laws were changing, and the Court was closed down and only started again
after the Tribes saw what was happening with our people. Both Okanogan and Ferry County courts were swamped
with cases. The sheriff didn't have money to send full-time officers to take care of the Reservation, so the Tribal
Council took back jurisdiction over tribal members from any tribe.
In 1971 I was working for Highway Safety on a grant from the Department of Transportation out of
Washington D.C. This Reservation in the mid-1970's had the highest fatality rate of any place in Washington State
between Omak and Coulee Dam. I was keeping record at the time, and decided we should have some kind of driver's
license for the five hundred (500) Tribal employees who drove Tribal vehicles. Fifty percent of our drivers did not
have any kind of a state driver's license. There were five program directors who did not have a license. I started a
program to teach people to drive, and made every employee who drove have a Tribal license. The first year the
Tribes saved $1,000.00 on insurance.
By this time we had one full-time judge, Frank LaFountaine, and needed a part-time judge to fill in while
Judge LaFountaine was on vacation. I was asked to fill in as judge for a couple of weeks. By then we had lawyers
and a public defender, and we were starting to be a real Indian court, a Court of Law.
This brings us up to date to the case in question. The Court of Appeals started out having a few cases a year.
I remember when we had five appeals cases in one year and that seemed to be a lot. I could see every one needed to
have the right to appeal, though.
The public defender we have at this time is a compassionate person, well able to make sure the people he
represents are protected under the law. I wouldn't have it any other way. Just a few years ago if we had twenty-five
cases a week we thought we had a full caseload. Now it is not unusual to have twenty-five cases in one day. The
whole Court staff, and the Police Department, Prosecutor's Office, Probation Office, as well as the Public Defender's
Office (and maybe a few departments I have forgotten to give credit to) are all over-worked.
Quite often the public defender will get stuck in a pattern, take the easy way out, and file any number of
cases saying "arbitrary and capricious," yet when the Court of Appeals says "enough!" he can write really in-depth
on an issue. He can write something to be proud of.
This case is one of his new ideas, well worth thinking over. From what I remember, the Tribes did not have
jails to hold people in who violated the law. He is right. It reminded me of when I first worked in Law and Order as
a new Game Warden and officer. The Fish and Game Committee sat me down and said: "You are new to the job, but
we have had Tribal police for hundreds of years before the white man came. We didn't have much law breakers, but
we did have some. The worst thing that would happen in the old days was, a young buck would ride his horse
through the camp too fast. Some of the Elders would call him out and say, 'Don't do that again.' It usually worked,
but some times he would do it again. The same Elders would call some of the other young men and say, 'Take him
out back of the camps and beat him up.' If he did it again, the Elders would tell the young people to take him out and
kill him."
Our old laws like those I was told about do not work because the world is changing. We still must protect
our people from the ones who do not obey the law, or accept it as the Tribes write it up. The Colville Tribes has one
of the leading Courts. We have to set the standards, not only for our own people, but because we have laid the
foundation for the smaller tribes to use as guidelines for their courts.
We, as the Court of Appeals' Justices for this Tribe, cannot control what the federal courts, or the state
courts, or the county courts do. We are responsible to this Tribe to set standards for the cases to build on from where
we are now. If the standard for a cement foundation is one bucket of water, three shovels of sand, and a shovel of
cement is working and has worked for years, we cannot be led down the path of change by putting too much water
or sand, and a half a shovel of cement to keep our foundation from crumbling.
A law without a penalty is only advice. The penalty of the law is the cement of the foundation. Contempt of
court comes in many forms, eg. not wearing a dress coat, or a tie, or not speaking loud enough to be heard. Other
examples include not following a court order to pay a fine, even if it is community service, or not obtaining a
driver's license, or driving without a license. This all falls within contempt for the Court.
The Probation Department reported that defendant Watt did not comply with past court orders; the officers
arrested her several years ago for no valid license. The Trial Court gave her a fair and just sentence, and yet a case
that should not have been filed in the Court of Appeals has cost the Tribes thousands of dollars at this time.
The briefs from the Prosecutor's Office listed most of the reasons. No insurance for an unlicensed driver is
high on the priority list. I feel if we let a chosen few get away with disregarding Court orders, we are not putting our
finger in the leak that could wash out the dam of violations and erodes away the hard-earned foundations that have
been laid for years. I did not mean this to be this long. Please forgive my rambling and simple way of putting things
on paper. I feel we can only uphold the Trial Court's decision. Let the majority rule in this case.
In Re The Welfare of L. J.
L. J., Minor/Appellant.
Case Number AP97-013, 2 CTCR 44, 25 ILR 6067
4 CCAR 52
[Julie Gaffney, Legal Services, Colville Confederated Tribes, Nespelem WA, counsel for the minor/Appellant.
Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for mother.
Stephen L. Palmberg, Attorney at Law, Grand Coulee Washington, counsel for father.
Lin Sonnenberg, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Children & Family Services.
Juvenile Court Case Number J97-16005]
Arguments heard January 16, 1998. Decided January 27, 1998.
Before Chief Justice Dupris, Justice McGeoghegan, Justice Miles
DUPRIS, C.J.
This matter came before the Court of Appeals for Oral Arguments on January 16, 1998 before the
Honorables Anita Dupris, Earl McGeoghegan and Wanda L. Miles. The appellant was represented by Julie Gaffney.
Lin Sonnenberg appeared for the Colville Tribes. Ms. Gaffney and Ms. Sonnenberg both submitted briefs and
participated in oral argument. Stephen L. Palmberg appeared for the father and Jeff Rasmussen appeared for the
mother, but neither counsel participated in the oral argument.
The Court, after reviewing the record and hearing arguments of counsel, finds for the appellant. It is clear
from the record and law that the Colville Tribal Court has exclusive jurisdiction over juvenile minor-in-need-of-care
matters. The Court of Appeals remands this matter to the Trial Court to amend it’s conclusions of law to reflect this
fact.
The Appeal is Affirmed.
Ronald CIRCLE, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP96-003, 2 CTCR 62
4 CCAR 53
[Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Lin Sonnenberg, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.
Trial Court Case Number 95-18100]
Arguments heard January 16, 1998. Decided February 20, 1998.
Before Presiding Justice Fry, Justice Chenois and Justice Bonga
FRY, P.J.
This matter came regularly before this Court on appellee Tribe’s motion granting appeal and oral arguments
on January 16, 1998 before Presiding Justice Elizabeth Fry, Justice Edythe Chenois and Justice David Bonga.
Present were Lin Sonnenberg, for the appellee, and Jeff Rasmussen, for the appellant.
The Court, having reviewed the record and files herein, heard the arguments of the parties, and being fully
advised in the premises, found good cause to grant the motion in that the defendant had completed his sentence and
the issues in this case are moot, however, the Court considers there to be a significant remaining issue upon which it
is appropriate to issue dictum, now, therefore
It is Ordered that:
1. The appeal herein is dismissed, and
2. That the Prosecutor’s Office is advised to consider all possible avenues in providing the defendant with a
copy of the NCIC prior to sentencing, including but not limited to, blacking out any confidential non-conviction
information prior to releasing it to the defendant.
It is so Ordered.
COLVILLE CONFEDERATED TRIBES, Appellant,
vs.
Frederick CLARK, Appellee.
Case No. AP94-024, 2 CTCR 45, 25 ILR 6066, 8 NALD 7006
4 CCAR 53
[Lin Sonnenberg, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.
Trial Court Case Number 93-16048]
Arguments heard April 18, 1997. Decided March 19, 1998.
Before Presiding Justice Miles, Justice Bonga and Justice McGeoghegan
Unanimous Panel
This matter came before the Colville Court of Appeals on April 18, 1997 for oral arguments. The appellant
was represented by Lin Sonnenberg, Tribal Prosecutor and representing the appellee was Jeff Rasmussen, Public
Defender.
The Court has reviewed the record, applicable law, and arguments of counsel, the Court now makes the
following:
FINDINGS OF FACT
1) Frederick Clark, appellee, was charged with the criminal offense of Assault, codified at CTC 5.1.03.
37
2) The appellee entered a not guilty plea and requested a jury trial.
3) Prior to trial, appellee’s counsel submitted a standard jury instruction which stated, “words alone are not
sufficient to sustain a conviction for the crime of Assault.”
4) The appellant objected to the pre-offered instruction on the grounds that words alone are sufficient to
sustain a conviction under CTC 5.1.03.
5) A hearing on a Motion to Dismiss was held on May 13, 1994. The Trial Court ordered a joint briefing
schedule to address this matter. Both parties submitted Memorandums of Law.
6) Oral arguments were heard on July 6, 1994. The Trial Court reserved ruling on the merits.
7) On July 13, 1994, the Trial Court issued an Order Regarding Elements of Assault. The Court found in
favor of appellee, by concluding that mere words alone are not sufficient to sustain a conviction of Assault
under CTC 5.1.03. Also, the Court overruled the appellant’s objections to this ruling. The Court further
ordered the appellee to draft a jury instruction consistent with the Order issued July 13, 1994, and to file
and serve on the opposing counsel within a minimum of seven (7) days prior to trial.
8) The appellee filed the Court ordered jury instruction on July 29, 1994.
9) The appellant filed a Motion and Affidavit for Dismissal with Prejudice on August 3, 1994. The
appellant’s basis for said Motion was the inability to prove beyond a reasonable doubt the elements of
Assault set forth in the jury instruction of July 29, 1994. The appellee did not object to this Motion.
10) On August 3, 1994, the Trial Court issued an Order Dismissing the Charge With Prejudice.
11) The appellant filed a Notice of Appeal on August 12, 1994.
12) A Motion to Dismiss was filed by the appellee on September 1, 1994.
13) The Appellate Court denied the Motion on June 21, 1996. The Court ordered the parties to submit a
briefing schedule on the merits of this matter.
DISCUSSION
The Appellate Court finds the Colville Tribal Court did not violate the separation of powers under the
Colville Confederated Tribes Constitution by clarifying the elements of Assault, CTC 5.1.03. Further, the Appellate
Court affirms the Trial Court’s decision.
CTC 5.1.03 states:
“Any person who shall threaten bodily injury to another person through
unlawful force or violence shall be guilty of Assault.”
The Trial Court held that this statute clearly required more than mere words to constitute an Assault. The
Court stated:
“[T}herefore the Court is compelled to the conclusion that the plain meaning of
the terms contained in this statute requires that the words be accompanied in
some way with an action as a criminal element of this statutory crime.”
Further CTC 1.1.07(e) states:
“Whenever the meaning of a term used in this Code is not clear on it’s face or in
the context of the Code, such term shall have the meaning given to it by the laws
of the State of Washington, unless such meaning would undermine the
underlying principles and purposes of this Code.”
The Trial Court’s decision is consistent with the interpretation of “Assault” given by the State of
Washington.
38
Based on the foregoing conclusions, this Court finds the Trial Court did not contravene a reasonable
interpretation of the offense of Assault. Therefore, this Court now Affirms the Trial Court’s decision in this matter,
and Dismisses this appeal.
Angela CLARK, Appellant,
vs.
Ronald FRIEDLANDER, Appellee.
Case Number AP97-019, 2 CTCR 47, 25 ILR 6154
4 CCAR 55
[Angela Clark, Appellant, Pro se.
Ronald Friedlander, Appellee, Pro se.
Trial Court Case Number CV97-17066]
Arguments heard December 19, 1997. Decided April 9, 1998.
Before Presiding Justice Nelson, Justice Bonga and Justice Chenois
PER CURIAM
NELSON, P.J.
This matter came on for oral argument on the 19th day of December, 1997, with the appellant/respondent
Angela Clark appearing without counsel or spokesperson. The appellee/petitioner Ronald Friedlander did not appear.
Neither of the parties filed briefs.
Ms. Clark has appealed the default judgment entered against her which awarded custody of the parties' five
year old son to Mr. Friedlander.
PROCEDURAL HISTORY
Mr. Friedlander's Petition for Custody and Proposed Parenting Plan were personally served upon Ms. Clark
on April 24, 1997.
On May 16, 1997, Mr. Friedlander, by and through his attorney, Theodore Schott, filed a Motion and
Affidavit for Default Judgment on the grounds that Ms. Clark had failed to file an answer to the Petition. A hearing
was held that day on the Motion for Default and on a Motion for a Temporary Restraining Order. Ms. Clark was
represented by Jeffery Rasmussen, the Tribes' Public Defender. Although instructed by the Court to file a Notice of
Appearance, Mr. Rasmussen failed to do so and did not actively represent Ms. Clark again.
39
Ms. Clark filed an Answer on May 22, 1997, (twenty six days after service of the Petition). The Answer
was non-responsive in that it admitted or denied the statements of the Proposed Parenting Plan rather than the
Petition. An Answer to the Petition was not filed.
On June 17, 1997, a hearing was held on the Motion for Default Judgment. Both parties appeared for the
hearing. Mr. Friedlander was represented by Theodore Schott. Ms. Clark was not represented by counsel or
spokesperson. After hearing the testimony of Ms. Clark and hearing the arguments of Mr. Schott, the Court held she
had failed to show good cause why the Court should permit her to file a late Answer.
Accordingly, the Court found Ms. Clark in default. The Court then entered an order granting custody to Mr.
Friedlander and approved the Proposed Parenting Plan presented by Mr. Friedlander as the Permanent Parenting
Plan.
QUESTIONS PRESENTED
The sole question on this appeal is whether the Trial Court abused its discretion in granting default and
default judgment against the pro se appellant/respondent after she appeared, had filed a late but unresponsive
Answer, and without receiving evidence on the Petition.
ABUSE OF DISCRETION
This court considered the term "abuse of discretion" in Tommy Waters v. Colville Confederated Tribes,
AP84-7231/7232, [1 CTCR 20, 1 CCAR 18] (1984). For the purpose of that case, the Court adopted the definition
contained in Black's Law Dictionary, Revised Fourth Edition, West Publishing Company, 1968, p. 25. which states:
"'Abuse of discretion' is synonymous with a failure to exercise sound,
reasonable, and legal discretion... And it does not imply intentional wrong or bad
faith, nor misconduct, nor any reflection on the judge but means the clearly
erroneous conclusion and judgment - One is that clearly against logic and effect
of such facts as are presented in support of the application or against the
reasonable and probable deductions to be drawn from the facts disclosed upon
the hearing; an improvident exercise of discretion; or error of law".
A further, but limited, review of abuse of judicial discretion reveals the following explanation:
From an acquaintance with the more impressive judicial utterances on the
subject of abuse of discretion, it will be deduced that there are two conditions
which must exist to warrant an appellate court in nullifying a ruling of the trial
court made in the exercise of a conceded discretion. The first is that the judicial
action must have been clearly unreasonable in light of the accompanying and
surrounding circumstances and the second condition is that the ruling must have
resulted prejudicially to the rights of the party complaining" Smith v. Smith, 17
40
N.J. 128, 85 A.2d 523, 524 (1951)
Clearly Unreasonable
The Appellate Court, in its review capacity, does not substitute its judgment for that of the Trial Court's, but
examines the record and the Trial Court's decision for indications of rationality and fairness to insure the Trial
Court's action was proper. Johnson v. United States, 398 A.2d 354 (D.C. App. 1979).
Ms. Clark, the appellant herein, was without counsel for almost all of the proceedings. She twice appeared
at hearings and filed a response to what she thought was required.
Her testimony at the hearing on June 17, 1997, was that she has a grade school education and has difficulty
reading. She also stated she had gone to two other attorneys, but neither could represent her because of conflicts of
interest. The assistance of the attorney who did help her was minimal and non-effective.
When asked by the Court what good cause she could offer in excuse of filing a late Answer, Ms. Clark
replied "I don't know". "I don't know what I am saying or what I am doing."
The Court stated it must apply the law even handedly and that by law it could not deny the Motion for
Default.
The Court, however, went beyond granting the Motion for Default. It also entered an order granting custody
of the parties' minor child to the Mr. Friedlander - without benefit of testimony or other evidence. Judgment was
apparently granted upon the pleadings which consisted of a verified petition and proposed parenting plan.
The Colville Tribal Codes do not address default judgments nor how they should be entered. The Domestic
Code, however, does require the Court to determine custody in accordance with the best interests of the child and,
secondarily, upon the traditions and customs of the Colville Indian people. The Court is also required to consider
additional relevant factors. CTC 5-1-108
CHILD CUSTODY - RELEVANT FACTORS IN AWARDING CUSTODY
There is nothing in the record indicating that the Court complied with the requirements of CTC 5-1-108. In
light of these requirements and the circumstances surrounding the issues in this matter the Appellate Panel finds the
entry of the default judgment granting custody of the parties' minor child to Mr. Friedlander was an error of law and
an abuse of discretion.
RULING PREJUDICIAL TO THE RIGHTS OF A PARTY
Depriving Ms. Clark of a just opportunity to vie for the custody of her child by granting a default judgment
to Mr. Friedlander without a determination of facts required by law was clearly prejudicial to her rights.
For the above stated reasons the appeal of Ms. Clark is granted. The Trial Court's Order Granting Custody
and the Order Adopting Parenting Plan are vacated. The matter is remanded to the Trial Court for further
proceedings consistent with the foregoing.
Alan SMITH, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case Number AP97-008 (miscited as AP95-022), 2 CTCR 67, 25 ILR 6156, 8 NALD 7005
4 CCAR 58
[Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Lin Sonnenberg, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.
Trial Court Case Number 94-17024 to 94-17031]
Arguments heard January 16, 1998. Decided May 7, 1998.
Before Chief Justice Dupris, Justice Chenois and Justice Nelson
DUPRIS, C.J.
PER CURIAM
SUMMARY
We are asked once again to address the applicability of custom and tradition in the context of a defendant's
sentence. At a sentence modification hearing the appellant raised the issue that a custom or tradition may apply
regarding converting jail time into community service, and asked the Trial Court for an evidentiary hearing to
determine if such a custom or tradition did exist. The Trial Court denied the request, indicating the appellant did not
raise it in a timely fashion and did not support the allegation of the existence of a custom or tradition with more than
an assumption or inference of its existence. For reasons stated below we affirm the Trial Court.
SUMMARY OF RELEVANT FACTS
On May 1, 1995 the Trial Court entered an order entitled "Order Setting Show Cause/Motion Hearing and
for Briefing Schedule." Specifically the Court stated that the appellant's arguments regarding the potential use of
marijuana in a religious ceremony that gave the appellant a false positive in a drug test needed to be supported by
evidence of tradition and custom. The Court directed
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