# AP08-008, 5 CTCR 1, 36 ILR 6041

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/tribal%3Aconfederated_colville%3Acf2b1f88aa27ba9d

## Record

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

## Text

In Re Sweowat,
AP08-008, 5 CTCR 1, 36 ILR 6041
10 CCAR 01
[Appellant appeared Pro se.
Amicus Appearances by Tom Christie & Tim Woolsey, Office of Reservation Attorney, Nespelem WA.
Trial Court Case Number CV-NC-2008-28187]

Oral argument September 19, 2008. Decided April 20, 2009.
Before Justice Theresa M. Pouley, Justice Earl McGeoghegan and Justice Conrad Pascal
This matter came before the Court of Appeals on Oral Argument on September 19, 2008. Appellant
appeared pro se. The Colville Confederated Tribes properly requested and was granted leave to appear and file a
brief as an Amicus Curiae. The Tribes appeared and was represented by Thomas W. Christie and Timothy W.
Woolsey of the Reservation Attorney’s Office. Oral Arguments were held before Presiding Justice Pouley, Justice
McGeoghegan and Justice Pascal.
Pouley, J., for the Panel.
SUMMARY
The facts of this case are simple and undisputed. The appellant Mitzi Jean Sweowat, petitioned the
Colville Tribal Court to change her name from her married name of Sweowat to her family name of Nanamkin.
Appellant is an enrolled Colville Tribal member who lives near the Yakima Indian Reservation. Appellant appeared
on the Colville Reservation at the Colville Tribal Court and filed a petition for a name change. The Trial court
denied the request on June 5, 2008 stating the trial court did not have jurisdiction. On June 12, a motion for
reconsideration was heard and the trial court again denied the request stating that the trial court did not have
jurisdiction.

For the reasons stated in this opinion, this Court finds the decision of the trial court is erroneous and

therefore REVERSES the decision and REMANDS this case to the trial court for proceedings consistent with this
opinion.
ISSUE
The issue before this Court is: Did the trial court err in finding it did not have personal or subject matter
jurisdiction over the name change of a Colville Tribal member who filed and appeared on the name change in
Colville Tribal Court?
DISCUSSION
The Court reviews the findings of fact under the clearly erroneous standard and issues of law under a de
novo review standard. CCT v. Naff, 2 CCAR 50, 2 CTCR 08, 22 ILR 6032 (1995); Wiley v. CCT, et. al., 2 CCAR
60, 2 CTCR 9, 22 ILR 6059 (1995); Palmer v. Millard, et.al., 3 CCAR 27, 2 CTCR 14, 23 ILR 6094 (1996); In re
Welfare of R.S.P.V., 4 CCAR 68, 3 CTCR 07, 26 ILR 6039 (1998). The ruling of the trial court finding it did not
have jurisdiction is reviewed de novo. In this case, this Court finds that the Colville Trial Court has both personal
and subject matter jurisdiction to change the name of the Appellant.

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The trial court ruled it did not have jurisdiction to effect Appellant’s name change because she did not
“live” on the Colville Reservation. There are no particular statutory provisions on name changes in the Colville
Tribal Code. However, the Colville Tribal Court’s jurisdiction generally is quite broad.
. . . To the greatest extent permissible by the law, the jurisdiction of the Tribal Court shall apply to
all persons on lands in the North Half and on other lands where the Colville Confederated Tribes
may be authorized to enforce its interest or rights and members asserting rights held by the Tribe
without regard to location.
Colville Tribal Law & Order Code, § 1-1-70. In keeping with this broad scope of authority for the courts, the Law
and Order Code § 1-1-431, covers not only persons residing on the Colville Reservation but also specifically states
the Tribes “shall have civil jurisdiction over: (1) Any person residing or present within the Reservation . . .”. The
Colville Tribes clearly intended the courts to exercise jurisdiction over all persons, especially Colville Tribal
members, who are not residents, but are merely “present” on the reservation.
Similarly, The Law and Order Code § 1-1-431-(a)(10) provides: “The Colville Confederated Tribes shall
have civil jurisdiction over: (10) All causes of action, which involve either the Tribe, its officers, agents, employees,
property, or enterprises, a member of the Tribe, a member of a federally recognized tribe, or any other matter which
effects the interest or rights of the Tribe . . .”.

This section clearly is in keeping with the overall jurisdiction

section providing for exercise of jurisdiction to the “greatest extent permissible by the law” because it authorized
civil jurisdiction over “all causes of action” which involve a member of the Tribe. This Court will continue to view
the jurisdiction of the Tribes broadly unless there is an express limitation on the exercise of that jurisdiction. In this
case, there is no limitation expressed in the law of the tribes.
Thus, when Petitioner filed her petition for name change, filed for reconsideration, and appeared at the
hearing, she did voluntarily submit herself to the jurisdiction of the Colville Tribal Court and meets the personal and
subject matter jurisdiction required by Colville Tribal Law.

The Trial Court erred in finding Appellant was

required to be a resident of the Colville Reservation or must affect the “interest of the Tribe”. This Case is
REVERSED and REMANDED to the trial court.
ORDER
The decision of the trial court is REVERSED and REMANDED for proceedings consistent with this
opinion.

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COLVILLE TRIBAL CREDIT vs. Deidre ANTONE, et al.
AP08-011, 5 CTCR 20, 36 ILR 6087
10 CCAR 03
[David Shaw, Attorney, representing Appellant.
Victoria Minto, Attorney, representing two Appellees. Remaining appellees appeared pro se
Trial Court case number CV-CD-2006-26237]

Oral Argument heard May 15, 2009. Decided August 28, 2009.
Before Presiding Justice Dennis Nelson, Justice Gary Bass, and Justice David C. Bonga
Appeal of Summary Judgment dismissing a Complaint for Monetary Judgment and Foreclosure on
Mortgaged Property. The trial court found for the appellees because there were no material issues of fact and that
they were entitled to judgment as a matter of law. To wit: the BIA Probate Court had dismissed Colville Tribal
Credit’s (hereinafter CTC) claim against the mortgagee’s estate and that CTC had failed to file a Notice of Rehearing
or appeal. Reversed and remanded.
Nelson, J., Presiding Justice, for the panel.
INTRODUCTION
The relevant facts in this matter are not challenged. On November 27, 2001 CTC loaned Judith Wetan
$40,765.46 at the rate of 0.0% interest. Ms. Wetan signed a promissory note secured by a Consumer Security
Agreement with a 1979 Mogul mobile home as the secured property. She simultaneously signed a Mortgage also
securing the loan with her 7/8 undivided interest in 35.49 acres of trust land located within the exterior boundaries of
the Colville Indian Reservation.
Judith Wetan died intestate on June 11, 2003. CTC filed a claim against her estate shortly thereafter in the
BIA Probate Court. On March 10, 2004, CTC notified the Court by letter that it was withdrawing its claim.
Nevertheless, on April 29, 2004, the claim was denied by the Court in its Order Determining Heirs. The appellees,
(hereinafter the heirs), inherited the mobile home and real property in which CTC claims a security interest. The real
property remains in trust. The debt remains unpaid.
CTC subsequently filed a Complaint for Monetary Judgment and Foreclosure on Mortgaged Property in the
trial court below. After the exchange of memoranda of law and oral arguments, the trial court granted the heirs
Summary Judgment and dismissed the Complaint.
ISSUE ON APPEAL
The Notice of Appeal states five (5) grounds for the appeal. They are whether the trial court erred as a
matter of law and policy that:
1) CTC may not bring a foreclosure action in Tribal Court after presenting a claim in a BIA
Probate Court;
2) CTC is collaterally estopped or otherwise precluded from bringing a foreclosure action in
Tribal Court after presenting a claim in the BIA Probate Court on the underlying debt and
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subsequently withdrawing that claim;
3) the trial court relied in whole or in part upon a mistaken factual allegation or legal conclusion
that CTC’s claim had been adjudicated by the BIA Probate Court;
4) CTC had a mandatory and condition precedent duty to appeal or request re-hearing in the BIA
Probate Court which it did not do: and
5) adjudication in full of a collection action in the BIA Probate Court precludes and eliminates a
security interest foreclosure action in another venue.
In short, CTC contends its complaint in Tribal Court should not be precluded by the doctrines of collateral
estoppel, res judicata, and failure to exhaust administrative remedies.
The heirs contend that:
1) Federal Indian probate law, not Federal Indian mortgage law, controls in the event the
mortgagee dies;
2) Colville tribal law is not applicable to this action as “Congress has not delegated probate
decision authority to the tribe”; and
3) that once CTC elected a remedy for collection of the debt owed by Ms. Wetan, it was
estopped from pursuing an alternate remedy when denied its claim in Indian Probate Court.
STANDARD OF REVIEW
This matter concerns issues of law only. There is no dispute regarding material facts. Accordingly, the
standard of review is de novo. Colville Confederated Tribes v. Naff, 2 CCAR 50, 2 CTCR 08, 22 ILR 6032 (1995),
Stone v. Colville Business Council, 5 CCAR 16, 3 CTCR 11, 26 ILR 6076 (1999).
DISCUSSION
This is a matter of first impression. It concerns issues regarding a contracted indebtedness secured by Indian
owned trust lands, the probate of a tribal member who contracted such debt and died intestate, and the administration
of her estate by the BIA Probate Court. Accordingly, tribal, state, and federal laws and regulations are addressed.
The laws we apply are determined by CTC 1-2-11 Applicable Law which provides:
“In all cases the Court shall apply, in the following order of priority unless superceded 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.”
Applicable tribal law is CTC 9-1-30, Foreclosure of Real Estate Mortgages. It states:
“The foreclosure of mortgages secured by real property interests and the execution on judgments
secured by a mortgage on real property shall be conducted under procedures set out in Titles 6.17,
6.21, 6.23, and 61.12 of the Revised Code of Washington (RCW) as those sections exist on March
1, 1993, or as they may be amended; provided sections 6.17.808, 61.12.061, and 61.12.162 shall
not apply and be adopted into this Chapter. The procedures to obtain a lis pendens as set out in
RCW 4.28.320 shall also be available. Those provisions of the Revised Code of Washington
identified in this chapter shall be incorporated into and shall become a part of this Subchapter. “

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Applicable federal law is set forth in 25 U.S.C. 483(a). It states:
(a) The individual Indian owners of any land which either is held by the United States in trust for
them or is subject to a restriction against alienation imposed by the United States are authorized,
subject to the approval by the Secretary of the Interior, to execute a mortgage or deed of trust to
such land. Such land shall be subject to foreclosure or sale pursuant to the terms of such mortgage
or deed of trust in accordance with the laws of the tribe which has jurisdiction over such land or, in
the case were no tribal foreclosure law exists, in accordance with the laws of the State or Territory
in which the land is located. For the purpose of any foreclosure or sale proceeding the Indian
owners shall be regarded as vested with unrestricted fee simple title to the land, the United States
shall not be a necessary party to the proceeding, and any conveyance of the land pursuant to the
proceeding shall divest the United States of title to the land. All mortgages and deeds of trust to
such land heretofore approved by the Secretary of the Interior are ratified and confirmed.
Also applicable to this matter is 43 CFR 4.250(a) which provides:
“(a) All claims against the estate of a deceased Indian held by creditors chargeable with notice of
the hearing under Section 4.211(c) shall be filed with either the Superintendent or the
Administrative Law Judge prior to the conclusion of the first hearing and if they are not so filed,
they shall be forever barred.”
The BIA Probate Court
The heirs contend that the federal regulations regarding probate control because all claims against the estate
could only be heard in the BIA Probate Court. They also contend that when CTC filed its claim there, it elected its
remedy and relinquished all others which may have been available to it.
Lastly, the heirs contend the order denying the claim was a final order and that there was no request for
rehearing or appeal. Thus, CTC is estopped from pursuing other remedies despite its reservation of such remedies in
the mortgage contract.
The BIA court as sole remedy: The intent of CFR 4.250(a) is clear on its face. All claims against the estate shall be
filed prior to the conclusion of the first hearing or be forever barred.

The heirs are correct. No further claims can

be brought against the estate. But this action is not against the estate. It is against the heirs of the estate who were
parties in interest1 or in privity with the estate. In most instances, the difference between the estate and the heirs
designated to receive property of the estate is not significant.
It is significant in this case, however, because CTC reserved in the Mortgage Contract the right to sue the
heirs inheriting the subject property. It also reserved the right to pursue a specific remedy without relinquishing its
right to pursue “any other remedy”. These rights were accepted and approved by the decedent and by the Secretary
of the Interior.
The question, then, is whether claims can be made outside the BIA Probate Court against heirs inheriting
secured mortgaged trust property distributed by the Court which property is subject to a mortgage contract binding
the heirs when it was specifically approved by the decedent and the Secretary of the Interior. The Secretary approved
1 “Parties in interest means any presumptive or actual heir....: 43 CFR 201 Definitions

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the indebtedness secured by the trust property and that the debt could be collected by any legal means available. .
25 U.S.C. 483(a), commonly known as the Indian Mortgage Act, was enacted after 43 CFR 250(a) was
adopted. The statute authorizes judicial foreclosures of trust lands in tribal courts. A conflict arises, as in this
instance, when a party initiates a judicial foreclosure in a tribal court without having first filed a claim in a BIA
Probate Court.2
It is black letter law that the U.S. Code always supercedes the Code of Federal Regulations. The Code is
written by elected representatives. The regulations are written by appointed members of the executive branch.
Regulations are promulgated to specific statutes and cannot conflict with those statutes or go beyond their purpose.
The Supreme Court has confirmed that where the law is clear, “that is the end of the matter, for the court, as
well as the agency, must give effect tot he unambiguously expressed intent of Congress.” Chevron U.S.A. Inc., v
Natural Resources Defense Council, 467 U.S. 837 at 842-843 (1984),
In addition, a reviewing court must be guided to a degree by common sense as to the manner in which
Congress is likely to delegate a policy decision of such .... magnitude to an administrative agency. Cf. MCI
Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 231. Pp. 8-10.

We think it

unlikely Congress would require enforcement of debts secured by trust lands to be brought first to a BIA Probate
Court and then referred to courts of other jurisdictions for resolution. Such a procedure would be unwieldy,
uneconomical, and a waste of judicial resources.
Tribal Court
The heirs argue that CTC’s claim is barred by the doctrines of collateral estoppel, res judicata, and failure to
exhaust administrative remedies.
Collateral estoppel
The doctrine of collateral estoppel prevents a subsequent action from prosecution if the following
elements are present: “1) identical issues; 2) a final judgment on the merits, 3) the party against whom the decision
on the issue is asserted must have been a party to, or in privity with a party to, the prior litigation; and 4) the
application of the doctrine must not impose a hardship on the party
against whom the doctrine is being applied.” Shoemaker v. Bremerton, 109 Wash.2d 504, 507, 745 P.2d 858 (
1987).
The issues before the BIA Probate Court and the Tribal Court were identical. In addition, the heirs against
whom the decision on the issue is asserted were in privity to a party in the BIA Probate Court. There was, however,
no final judgment entered by that court on the merits of CTC’s claim. Furthermore, to collaterally estop CTC from
pursuing judicial enforcement of the mortgage contract would impose an undue hardship on it.
CTC’s claim in Tribal Court is not precluded by collateral estoppel.
Res judicata
To establish res judicata, courts determine (1) whether a final judgment on the merits was rendered in a
prior action between the same parties; and (2) if the prior and present actions involve (a) the same subject matter; (b)
2 The language of 43 CFR 250(a) bars all claims against the estate of an Indian which are not filed in a BIA Probate Court.

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the same cause of action; (c) the same persons and parties; and (d) the same quality of the persons for or against
whom the claim is made. Hisle v. Todd Pac. Shipyards Corp., 113 Wn. App. 401, 410, 54 P.3d 687 (2002).
The prior and present actions involve the same subject matter, the same cause of action, the same persons
and parties, and the same quality of the persons for whom or against the claim is made (the heirs were in privity with
the estate). The only additional element needed to establish res judicata is whether the BIA Probate Court entered its
judgment on the merits of the claim before it. It did not.
It follows that CTC’s claim in Tribal Court is not precluded by res judicata.
Failure to exhaust administrative remedies
We agree with the trial court that the Probate court order denying CTC’s claim was ambiguous at best. A
request for re-hearing may or may not have determined whether the claim was denied or dismissed. The distinction,
however, is of little significance as CTC’s complaint was not heard on its merits. CTC did not have its day in court.
The situation is analogous to those where the doctrines of collateral estoppel and res judicata are
considered. To arrive at a final, irreversible decision without a hearing on the merits should be avoided whenever
possible. Denying CTC a hearing on the merits of its claim would provide a windfall to the heirs that would harm
CTC and, ultimately, the Tribes and their members. No legal principal should ever be applied to work injustice. See
Henderson v. Bardahl International Corporation, 72 Wash.2d 109, 431 P.2d 961 (1967).
It is significant that CTC, in its mortgage contract with Ms. Wetan, reserved its remedies for collection of
the indebtedness. The heirs argue that CTC is bound by the remedy it elected when it filed its claim in the BIA
Probate Court. This argument would have more weight if the claim had actually been heard.
Congress has not delegated probate decision authority to the Tribes
The heirs also argue Congress has not delegated probate decision authority to the Colville Confederated
Tribes. This argument is specious. CTC is not seeking relief through an action in probate. Its action is based upon
contract law, the Indian Mortgage Act, and Chapter 9.1 Mortgages, Deeds of Trust and Real Estate Contracts of the
Colville Law and Order Code.
Secured creditor need not participate in probate proceedings
It is settled law that a secured creditor such as CTC need not participate in BIA probate proceedings when
seeking to foreclose on secured trust property owned by an Indian decedent. . In 1958, a Solicitor’s Memorandum
stated “A properly secured creditor need not present a claim (in the BIA Probate Court) since he may be paid by
means of foreclosure or other methods prescribed in the lending agreement”. Emphasis added. Acting Solicitor’s
Memorandum (Indian Affairs) to Examiner Montgomery, A-58-1104.9a (April 14, 1958.
We are not aware of any legal authority determining that statement invalid. To the contrary, IBIA cases
have agreed with the statement or considered it in deciding a matter. See, Estate of Ecoffey, 5 IBIA 85 (04/16/1976)
and Estate of Elsie White Wesley, 13 IBIA 326 (11/15/1985).
CONCLUSION
Accordingly, the Summary Judgment dismissing a Complaint for Monetary Judgment and Foreclosure on
Mortgaged Property is VACATED and the case is REMANDED for proceedings consistent with the foregoing.

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IT IS SO ORDERED:

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COLVILLE CONFEDERATED TRIBES, Appellant,
vs.
Russell BOYD, Appellee.
Case No. AP09-007-IA, 5 CTCR 21, 36 ILR 6099
10 CCAR 8
[Jonnie Bray, Office of Prosecuting Attorney, for Appellant.
Leone Reinbold, for Appellee.
Trial Court Case number CR-2009-32208]

Decided October 22, 2009
Before Chief Justice Anita Dupris, Justice David C. Bonga and Justice Dennis L. Nelson
Nelson, AJ, for the Panel
Appellant, Colville Confederated Tribes, filed an interlocutory appeal on August 3, 2009, challenging the
actions of the trial court judge as so far departing from the accepted and usual course of judicial proceedings as to
call for review by the Court of Appeals. COACR 7-A( c).
Appellee Russell Boyd, contends there is an insufficient written order upon which to appeal and that the
issue is moot because there is either an inadequate remedy or that any error was harmless as the prosecution has not
been prejudiced.
After a review of the record and law we find the Trial Court did err in hearing the matter before the tribal
Prosecutor’s Office officially filed a complaint, thereby infringing on prosecutorial discretion. We grant the appeal
and, because of the unusual nature of the appeal, we give the Trial Court instructions for future application to similar
cases.
INTRODUCTION
Russell Boyd was arrested on July 16, 2009, for allegedly tampering with a witness. On motion of his
attorney he was brought before a trial court judge on July 17 to consider his release from custody. Neither a citation
nor a complaint had been filed at the time of the hearing nor had a case number been assigned.
The prosecutor objected to a hearing being held without a complaint having been filed, citing insufficient
time to review the officers reports to consider what charge(s) should be filed. The trial court judge allegedly
commented that she was concerned the defendant was sitting in jail without charges having been filed.
The court, after hearing the comments of the attorneys and officers, determined there was no probable cause
for Appellee to have been arrested, that he should be released, and that the Appellant should file charges prior to
Appellee’s arraignment.
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The trial court judge then issued an Order Setting Requirements and Notice of Court Appearance. The
undated order released Appellee on his personal recognizance with conditions imposed. The order also set a time
and date for his arraignment.
STANDARD OF REVIEW
Appellant contends the trial court abused its discretion and committed errors of law. Mixed questions of
fact and law require a “de novo” review of the trial court actions. Colville Confederated Tribes v. Naff, 2 CCAR 50,
2 CTCR 08, 22 ILR 6059 (1995).
DISCUSSION
We begin with examining how criminal cases come into being and how they are dealt with ab initio until
arraignment.
All criminal actions begin with either a citation or a complaint. Colville Law and Order Code, §§ 2-1-30
and 2-1-72(a).
A citation is issued by a police officer when arrest and detention are not warranted for the offense(s) alleged
to have been committed. A citation contains:
(1) The name and address of the alleged offender, date of birth and sex, a description of the offense(s)
charged, the date the citation was issued, and the signature of the citing officer.
(2) To secure his release, the offender must promise to appear in Court; and
(3) The time and date the offender is to appear in court to hear the charges against him and post bail, which
shall not be less than seventy two (72) hours after the date of the citation or more than fifteen (15) days after the date
of the citation. Law and Order Code, § 2-1-71. Citations are often supplanted by a complaint.
A complaint contains:
(1) The name of the Court;
(2) The title of the action and the name of the offense charged;
(3) The name of the person charged; and
(4) The offense charged, in the language of the statute, together with a statement as to the time,
place, property, and person involved to enable the defendant to understand the nature of the
offense charged. Law and Order Code, § 2-1-30(b).
A defendant who has been arrested is brought before the court “as soon as reasonably possible after arrest,

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but no more than seventy two (72) hours later. “ Law and Order Code, § 2-1-100.

The initial appearance of a

defendant in the Colville Tribal Court is the arraignment.
The purpose of the arraignment is to inform the defendant of the charges against him and of his rights under
the law. Law and Order Code, §§ 2-1-100 and 2-1-101.

MR. BOYD’S INITIAL APPEARANCE
On July 16, 2009, tribal police believed they had probable cause for Mr. Boyd to be charged with
Tampering with a Witness.

3

CTC 3-1-138. He was not issued a citation. He was arrested and taken to the holding

facility at Nespelem.
On July 17, on motion of his counsel, he was brought before a tribal court judge to consider his release from
custody. A complaint had not been filed nor had a case number been assigned. We have no recording of the
hearing because of an equipment malfunction.

4

Motions and Bail Hearing
At the Motions and Bail hearing the prosecutor objected to going forward without a complaint, arguing
that the Tribes could hold the defendant for seventy two (72) hours or less without the filing of a complaint. The trial
court judge allegedly replied that she was concerned that Mr. Boyd had been sitting in jail for twenty-four hours
without a complaint having been filed.
A complaint does not magically appear when a defendant is arrested. Immediately following the arrest and
transport of the defendant to a holding facility, the officer prepares his written report of the circumstances
surrounding the event. There may be a need to obtain additional statements from brother officers and witnesses.
Evidence may need to be tagged and inventoried. Once this process is completed, the documents are forwarded to
the prosecutor’s office for determination of charges and preparation of a complaint. All this takes time.
The Business Council has determined that sufficient time from arrest to arraignment should require no more
than seventy two hours. A complaint must be filed within that time or the defendant shall be released from custody.
While it is inconvenient for a defendant to remain in jail any longer than necessary, it is not illegal to hold him for a
time not exceeding seventy two hours. See Williams v. CCT, 6 CCAR 45 at pp 46-47, 3 CTCR 46 (2002).

3

Mr. Boyd had dealt with tribal police before. On May 8, 2009, he was charged with Battery Domestic Violence for allegedly battering his
wife. The complaint was dismissed on August 10, 2009.
4

Without a recording we are compelled to rely on the written materials of the parties. None of the filings with this Court have been certified
or notarized.

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We have previously discussed the separate roles and responsibilities of the Trial Court and the Prosecutor’s
Office. See CCT v. Laramie, 4 CCAR 22 at p23, 2 CTCR 49, 24 ILR 6181 (1997), and Sonnenberg v. Colville
Tribal Court, 5 CCAR 9 at p16, 3 CTCR 9, 26 ILR 6073 (1999). It is important that the tribal judge maintain his or
her objectivity at all times, and respect the roles others have in the cases that come before the judges. The judge, as a
tribal leader, must not appear to take sides nor appear to rule based on his or her emotions without regard to what the
law is in the case.
The trial court judge acted inappropriately by hearing a motion for release without a complaint having been
filed or case number assigned. A defendant may be held without a charging document being filed for a time not to
exceed seventy two hours. In this instance, the trial court judge should have waited until a complaint had been filed
and a case number assigned.
Probable Cause
Appellee’s spokesman, Leone Reinbold, argued for Mr. Boyd’s immediate release stating that he had been
arrested without probable cause as the arresting officer relied on the word of a brother officer when making the
arrest. Ms. Reinhold contended that an officer can only make an arrest when a crime is committed in his presence or
under the authority of an arrest warrant.
CCT § 2-1-33 Arrests states: “No police officer shall arrest any person for any offense defined in this Code
or by federal law, except when the offense shall occur in the presence of the arresting officer or he shall have
probable cause to believe that the person arrested has committed the offense, or he shall have a warrant commanding
him to apprehend the person.”
Our record is devoid of the facts surrounding the arrest of Mr. Boyd so we make no determination whether
there was probable cause for his arrest. It may help the trial court judge, however, to study the following
definition: "Probable cause exists where the facts and circumstances within the arresting officer's knowledge and of
which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution
in a belief that an offense has been or is being committed." State v. Gluck, 83 Wash. 2d 424, 426-27, 518 P.2d 703
(1974). This includes relying on the words of a fellow officer. See State v. Alvarado, 56 Wash. App. 454, 783
P.2d 1106 (1989).
After hearing the comments of those present, the trial court judge determined that Mr. Boyd had been
arrested without probable cause. There is nothing in the record to show how the trial court judge arrived at that
conclusion. She then ordered him released upon his own recognizance subject to conditions. She also ordered him to
appear for arraignment on July 22 after directing the prosecutor to file a complaint.
This is an unusual way to proceed. The trial court finds no probable cause that the defendant committed a
crime, but orders him to be arraigned on a complaint the prosecutor is to file. The cart is before the horse. In order
for a person to be arrested, an officer must reasonably believe a crime has been committed. i.e. probable cause. In

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order for a complaint to be filed a prosecutor must believe beyond a reasonable doubt that the defendant is guilty. A
court cannot find guilt beyond a reasonable doubt unless probable cause has been determined. How is a prosecutor
to convince the court that he or she believes a defendant guilty beyond a reasonable doubt when the trial court judge
has already determined there was no probable cause for the arrest of the defendant?
It is not unusual for a judge to determine that no probable cause exists and a defendant is ordered released
after the prosecutor has filed a complaint. That is the end of the matter unless the prosecutor deems an appeal
necessary. For a judge to find no probable cause and then order the defendant arraigned on a complaint arising from
the same circumstances indicates a lack of understanding of the workings of a criminal prosecution. We find the trial
court judge erred in prematurely ruling there was no probable cause.
The Trial Court Judge Departed From Accepted Standards
Mr. Boyd contends the issues before this court are moot as our ruling “will have no impact on this case”
because the Tribes can file charges in the underlying matter for three years from the date of the offense.
Appellee’s Brief.

5

Pg. 3,

The issues, as noted directly above, are not moot. Further proceedings in this matter with the

same trial court judge present the conundrum we discussed above. How can a trial court judge preside over further
proceedings in a criminal matter after she has found no probable cause exists? In our opinion, it is not possible.
Appellant aptly points out that, by its rulings, the trial court erroneously circumvented the procedural laws
of the Tribes. See, CCT v. George, 6 CCAR 54, 56, 3 CTCR 52, 29 ILR 6087 (2002). The trial court judge
overstepped the boundaries between judicial and prosecutorial discretion, which we have long-recognized in this
Court. See, Mellon v. CCT, 8 CCAR 1, 10, 4 CTCR 17, 32 ILR 6021 (2005); CCT v. Laramie, 4 CCAR 22, 2 CTCR
66, 24 ILR 6181 (1997); and Sonnenberg v. Colville Tribal Court, 5 CCAR 9, 16, 3 CTCR 9, 26 ILR 6073 (1999).
We find the trial court “so far departed from the accepted and usual course of judicial proceedings as to call
for review by the COA.” COACR 7-A, subsection c. We find this matter is properly before us.
CONCLUSION
The lack of knowledge of the law exhibited by the trial court judge is greatly disturbing to this panel. We
cannot “unring” the bell. At most we can direct the removal of the trial court judge from further participation in
this matter in that her participation so far has evinced a lack of fairness and objectivity towards Appellant. We also
counsel the trial court’s Chief Judge to make sure the judges are familiar with relevant procedural and substantive
rules of law that apply to the cases before them. This assures a minimum standard of due process. What we have in
this case is a blatant disregard for such procedures and laws.

5

Appellee’s brief was totally lacking in relevant laws and authorities for us to review. Appellee treated the brief as an opportunity to give us a
position paper on what his spokesman’s opinion is in this matter, thereby rendering the brief non-responsive. It was also inaccurate in places,
e.g. it stated there was no written order when in fact there was one. How else would the police have released Appellee? We counsel Appellee’s
spokesman to take these matters a little more seriously, and study and review the nature of briefs, both in the Court Rules and in the laws. By not
giving us relevant authorities to review she has ignored settled, relevant case law.

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Accordingly, IT IS ORDERED:
1. Associate Judge Sheilah Cleveland shall recuse herself from further participation in this matter;
2. The trial court’s finding there was no probable cause is VACATED. Should a complaint be filed in this
matter, the issue of probable cause shall be considered should it be raised upon motion of counsel; and
3. The Chief Judge is counseled to require the judges she supervises to know the procedural and substantive
laws of the Tribes in order to ensure no further blatant deviations from standard law occur as what
happened in this case.

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Rose ZAVALA, Appellant,
vs.
Don MILSTEAD and Geneva JOSEPH, Appellees.
Case No. AP09-008, 5 CTCR 22, 36 ILR6101
10 CCAR 14
[Mark J. Carroll, Omak, appearing for Appellant.
Appellees appeared pro se.
Trial Case Number CV-CU-2007-27417]

Decided October 14, 2009
Before Chief Justice Anita Dupris, Justice Gary Bass and Justice Howard E. Stewart
Dupris, CJ
SUMMARY
On July 16, 2009 Appellant, Rose Zavala, filed an appeal of an Order from Custody Trial dated July 7,
2009. Subsequent to the custody hearing the trial court judge entered written findings of fact and conclusions of
law, dated August 20, 2009. On August 19, 2009 the trial court denied Appellant’s request for a stay of judgment
pending the outcome of her appeal. The trial court judge entered written Findings of Fact, Conclusions of Law,
Order Denying Stay on August 21, 2009 (hereinafter Order). Appellant appeals the denial of the stay under COACR
9(d).
We find the trial court erred in its legal conclusions but find the errors were harmless, and there is good
cause to affirm the denial of the stay pending the outcome of the appeal.
DISCUSSION
A. A Stay is Mandated Under CTC § 1-1-285
A review of the findings of fact in the Order is not an easy task. We have little direction of what facts were
found. The findings are more of a record of what evidence and arguments were presented to the trial court instead of
6

how the trial court analyzed and weighed the evidence, thereby coming to a final, relevant fact . What we have to
review, then, is a judicial summary of the evidence and arguments presented at the custody hearing from which we
must determine the facts de novo since, in essence, no reviewable relevant facts are provided by the trial court in its
findings.
The question before us is whether the trial court erred in its interpretation of the law regarding the denial of
6

For example, Finding of Fact #1(a) states Mr. Milstead [Appellee herein] “claimed he did not receive notice of this Motion Hearing....” Is the
court finding that Mr. Milstead claimed he had no notice, or is the court finding that Mr. Milstead did not receive the notice? Another example is
Finding of Fact 5: “Rose Zavala, through counsel, wanted to know if Don Milstead was opposing the motion to stay...” This gives a picture of
the dialogue in court, but it does not reveal a relevant finding of fact for us to review on the legal issue presented to us.

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the stay herein. Questions of law are reviewed de novo. Colville Confederated Tribes vs. Naff, 2 CCAR 50, 2
CTCR 08, 22 ILR 6032 (1995); Wiley, et al. v. Colville Confederated Tribes, 2 CCAR 60, 2 CTCR 09, 22 ILR
6059 (1995); Palmer v. Millard, et al., 3 CCAR 27, 2 CTCR 14, 23 ILR 6094 (1996) (Because the Tribal Court
dismissed the case below as a matter of law, we review the matter de novo.);

Pouley v. CCT, 4 CCAR 38, 2

CTCR 39, 25 ILR 6024 (1997) (The Appellate Court engages in de novo review of assignments or errors which
involve issues of law); In Re The Welfare of R.S.P.V., 4 CCAR 68, 3 CTCR 07, 26 ILR 6039 (1998). The trial
court entered six (6) Conclusions of Law in the Order.

7

For purposes of our review under COACR 9(a) we review

Conclusion #3.
Conclusion #3 sets out three (3) separate legal conclusions: (1) the trial court has discretion whether to
8

grant a stay under CTC §§ 1-2-78 and 5-5-60 ; (2) the court is allowed to apply the “best interest” test in this case in
9

making its decision; and (3) CTC § 1-1-285 only applies to criminal appeals. The trial court’ legal conclusions on
which statutes to rely on to deny the appeal, and its interpretation of CTC § 1-1-285 are erroneous.
CTC § 1-2-78 clearly states (1) a request for a stay must be in writing to the trial court; and (2) the trial
court has discretion whether to require a bond. It does not, on its face, give discretion to the trial court to grant or
deny a stay. When the language is plain on its face a court cannot infer another meaning. See CTC § 1-1-7(b)
(words shall be given their plain meaning).
Although the trial court is granted discretion to grant or deny a stay under CTC § 5-5-60, by its plain
language, this statute only applies to the chapter on Domestic and Family Violence Code. We have nothing in the
10

record to show the immediate cause of action was brought under Chapter 5-5 . All the petitions and relevant orders
we have reviewed show that it is a custody action, which is brought under CTC § 5-1-120 et seq. (Child Custody).
CTC § 5-5-60 clearly states it applies to stays requested under Chapter 5-5, thereby eliminating its use in this case.
The trial court erroneously concluded, as a matter of law, that CTC § 1-1-285 only applies to criminal
cases. Tribal lawmakers have been very specific when making exceptions to stay requests upon the filing of an
appeal. We have already identified CTC § 5-5-60 as one exception. Another is Chapter 5-2, Juveniles. CTC §
5-2-413 provides that a decree or disposition of a hearing entered under this Chapter shall not be stayed by an
7

Conclusions #2, 4, and 5 have findings of fact incorporated in them. #2: “Don Milstead did not receive notice of the hearing...”; #4: this
Conclusion lists in detail the types of care Mr. Milstead has provided the minor; and #5:”Rose Zavala refused to release the minor’s clothes....”
These Conclusions contain legal conclusions in them, too.
8

1-2-78, Stay Pending Appeal; Bonds: If a party is granted an appeal, that party must then, in writing, request a stay of judgment pending the
outcome of the appellate procedure. At that time, the appellant must also make provisions for a bond, which is discretionary with the Court.
5-5-60, Stays: The trial court shall have discretion in determining whether to grant a stay of any or all provisions of its orders under
this chapter [referring to Chapter 5-5, Domestic and Family Violence Code] with the exception that provisions aimed at protecting victims shall
not be stayed. The trail court shall provide written findings and conclusions in support of its decision on granting or denying a request for a stay.
9

1-1-285, Stay of Execution: Unless otherwise provided for by this Chapter, [referring to Chapter 1-1, Preliminary Provisions/Administration of
Tribal Court] in any case where a party has perfected his right of appeal as established by this Code or by Rules of Court, a stay of execution of
judgment shall be granted and the sentence shall not be carried out unless and until affirmed by the Appellate Court without good cause to the
contrary as determined by the Appellate Court.
10

The trial court heard allegations on abuse in Appellant’s home, but made no specific findings of such abuse, i.e. a statement that such abuse
did or did not happen. As we stated earlier, the court’s findings are more of a summary of the evidence presented; they do not show us how the
trial court analyzed and weighed the evidence, thereby deciding what was a relevant fact.

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appeal.
CTC § 1-1-285 is found in the Code’s chapter on Preliminary Provisions/ Administration of Court.
Specifically it is in the section on appeals. Chapter 1-1 has language referring to its application to both civil and
criminal cases. Eg. CTC § 1-1-251 (Fees), CTC § 1-1-402 (Civil Contempt), and CTC § 1-1-403 (Criminal
Contempt).

Chapter 1-2, Rules of Court, refer to both civil and criminal cases, sometimes generally and sometimes

with specificity. CTC § 1-2-77 states any party has a right to appeal under the appeals provisions of Chapter 1-1.
In the case of ambiguities in reading code sections, we are instructed to construe the Code as a whole, and
to give effect to all of its parts in a logical and consistent manner. CTC § 1-1-7(d). It would not be logical to limit
CTC § 1-1-285, a general provision, to criminal cases without there being an equal counterpart for civil cases. In
construing the Code as a whole, it is logical to recognize that CTC §1-1-285 covers all cases before the trial court.
The specific language regarding sentencing within CTC § 1-1-285 applies when the case is criminal; all relevant
portions of this section still apply to the civil cases.
The plain language of CTC § 1-1-285 says the trial court shall issue a stay where it is shown the party
requesting it has perfected his right to an appeal. There is no discretion on the part of the trial court unless
specifically granted, as in CTC §§ 5-5-60 and 5-2-413. The discretion to affirm or overturn the denial of a stay
based on good cause rests with the Court of Appeals. Carson v. CCT, 5 CCAR 28, 30, 3 CTCR 26, 27 ILR 6153
(2000).
We hold the trial court erred in limiting CTC § 1-1-285 to criminal cases and overturn this decision.
B. Good Cause Exists To Affirm the Denial of the Stay
We can appreciate the hesitancy of the trial court to grant a stay in cases in which it appears to the trial
judge that harm may beset a party. Logic dictates that the trial judges should have the discretion to determine
whether to grant a stay in civil cases potentially involving the safety of children. We are not legislators, however, and
to recognize the trial court’s discretion would mean amending the relevant code sections. This is a job for our
Council to address. Although it is a more involved procedure, such parties can be protected under the current laws
11

and procedures. That is, the party opposing the stay can ask for an immediate review at the appellate level .
After a review of the record, and a de novo review of the summary of the evidence presented in the trial
court’s findings of fact, both in the Custody Order and the Order Denying Stay we find that good cause is shown to
deny the stay, and the trial court’s denial is harmless error. Even reading the findings in a light most favorable to
Appellant, we find there is a prima facie showing that it would be disruptive to move the minor from his father’s
home pending the appeal. This Court has the discretion to find good cause to deny a stay; we so find in this case.
We hold the trial court erred in exercising discretion to deny the stay, and that it was a harmless error in that
we would have denied the stay based on the prima facie showing of good cause that it should be denied, and the
denial should be affirmed.
It is SO ORDERED.
11

If the trial court disagreed with the stay it could make the effectiveness of the stay begin after a time certain, write specific findings of fact
and conclusions of law why the stay should have been denied and then direct the opposing party to the Court of Appeals for a review under CTC
§ 1-1-285.

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PAGE DELIBERATELY LEFT BLANK

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Shalesa Edwards, Appellant,
vs.
Sarah Bercier, Appellee
Case No. AP09-009, 5 CTCR 23, 37 ILR 6009
10 CCAR 18
[Appellant appeared pro se.
Appellee appeared pro se.
Trial Court case number CV-CR-2009-29112]

Hearing held November 29, 2009. Decided December 2, 2009.
Before Chief Justice Anita Dupris, Justice David C. Bonga and Justice Conrad Pascal
Dupris, CJ, for the Panel
This matter came before the Court of Appeals for an Initial Hearing on November 20, 2009. Shalesa
Edwards, Appellant, appeared by telephone and without a spokesman. Sarah Bercier, Appellee, appeared in person
and without a spokesman. The Court, after reviewing the record and recordings of the Trial Court’s hearings on
May 11, 2009 and July 13, 2009, and after reviewing the laws that apply in this case, found that the orders entered on
July 13, 2009 should be vacated and a new hearing be held before the Trial Court. The reasons for these decisions
are set out below.
DISCUSSION
Court of Appeals Court Rule (COACR) 12 states when an appeal is filed we are to hold an Initial Hearing.
At the Initial Hearing we are to decide whether (1) there is a legal reason to grant an appeal; or (2) whether the case
should be sent back to the Trial Court immediately for a new hearing; or (3) whether there are no legal issues we can
decide and the appeal should be dismissed. In making our decision in this matter we listened to the recordings of
the hearings of May 11, 2009 and July 13, 2009. We reviewed the documents in the Trial Court file regarding the
request for a restraining order, as well as the Notice of Appeal filed in our Court. Finally, we studied what laws apply
to this case, both those found in the Law and Order Code and those in our case law.
Appellant asked for the appeal on two grounds:
1)

“Irregularity on the proceedings of the court, jury, or party, or any order of the Court, or abuse of
discretion, by which a party was prevented from having a fair trial;” and

2)

“That substantial justice has not been done.”

12

Appellant stated she was not given an opportunity to present her side of the action, including witnesses and
documents; she feels it was improper for the judge to reopen the case without a written request to do so after the
judge dismissed it when Appellee did not appear; and the judge would say things Appellant did not understand and
12

Appellant made a check mark besides these two Grounds of Appeal on the forms provided by the Court of Appeals. These Grounds of
Appeal are taken from the Law and Order Code, § 1-1-282 and incorporated into our Court Rules.

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would not explain them to her. In sum, Appellant made sufficient arguments in her Notice of Appeal that raise
questions on whether she was given due process at the hearing on July 13, 2009.
STANDARD OF REVIEW
The question of whether Appellant was given due process is a legal question. For this reason we will look at
13

everything in the trial court file and records de novo . De novo means that we will look at everything the trial court
looked at as if it were the first time, independent from what the trial judge decided. When we look at the documents
filed and the testimony given in the case we will make our own decision whether the judge conducted the hearing
properly and made the correct legal decision.
PROCEDURAL DUE PROCESS
All hearings before the Trial Court must meet standards of procedural due process. Basic standards of
procedural due process include: the right to adequate notice of what issue the court is going to decide and when; the
opportunity to present evidence, either documents or testimony or both, for your side; and the opportunity to testify
on your own behalf. See Gallaher v. Foster, 6 CCAR 48, 3 CTCR 50, 29 ILR 6079 (2002) and the Colville Tribal
Law and Order Code §1-5-2(h).
Our review of the hearings show the judge conducted the hearing in a manner that violated Appellant’s right
to procedural due process. First, all of the motions the judge ruled on were stated on record by the judge and not
specifically asked for by either one of the parties. For example, when Appellee did not appear on time for the July
13, 2009 hearing (which will be just called “hearing” from now on in this opinion), the judge said: “Do you want me
to dismiss this case because she failed to appear?....Are you requesting that the case be dismissed?” (at 1:07:39 to
1:09:33 of the recording). When Appellee appeared after the judge signed the dismissal order, the judge told
Appellee she was going to let her make an argument to reopen the case. Finally, the judge asked if the parties wanted
this hearing to be the final one without having to go to a trial. No one made these motions; the judge raised them on
her own.
14

A judge is to conduct hearings objectively and fairly . This includes conducting the hearing without
looking like she is taking one side or the other. Even if the judge hasn’t taken one side or the other, if it looks like
she is, this violates procedural due process. In the hearing, after she read the whole complaint filed by Appellee,
word-for-word into the record, the judge asked Appellee if she had anything else to add. The judge used the
majority of the remaining time in the hearing asking Appellee questions. She only asked Appellant two (2) questions.
By asking all of the questions it appeared that the judge was acting more as an advocate than as the judge. While we
understand that having two pro se litigants in court may be challenging, it is imperative that the judge let the litigants

13

CASE LAW: De novo review means we look at everything the Trial Judge had to review when she made her decision, and not at any new
information. The test is whether there [is] a reasonable basis for the Judge’s ruling, based on the facts and law before her and not whether we
[would] have held differently under the same circumstances. Marchand v. CCT, 8 CCAR 43, 4 CTCR 26 (2006).
14

Colville Tribal Rules of Judicial Conduct 1.4.01(d) states: A judicial officer shall maintain order in his Court. He shall not interfere in the
proceedings except where necessary to protect the rights of the parties. A judicial officer shall not take an advocate’s role. A judicial officer
shall rely only on those procedures prescribed by the laws and customs of the Tribe. Emphasis added.
A trial court judge should refrain from orchestrating the trial. CCT v. Swan, 7 CCAR 37, 4 CTCR 12, 31 ILR 6025 (2003).

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present their own cases, with minimal interference. The better practice would have been to first ask Appellant to
show any good reason why the temporary order shouldn’t be made permanent, then allow her to present her own
evidence in her own way. Next, Appellee would have been given a chance to respond with her own evidence, in her
own way.
A Show Cause Hearing is hearing in which one party, Appellant in this case, is required to go to court and
tell the judge why a temporary order should not be made into a permanent order. There is nothing on the record
which indicates the judge explained this to the parties. The judge never gave Appellant an opportunity to present her
own statement or evidence on her own behalf regarding the legal question to be decided in a show cause hearing.
When Appellant attempted to present evidence or arguments on her own behalf the judge denied her request
and said Appellant had already agreed to the permanent restraining order for five years. It is clear from Appellant’s
comments during the hearing she did not understand she had due process rights to present her case on why the order
shouldn’t be made permanent. It is clear from Appellant’s comments in the hearing she did not understand what she
agreed to, i.e. a permanent five-year restraining order against her without a further hearing on the issues raised.
CONCLUSION
COACR 12 allows us to send this matter back to the Trial Court for a new hearing without filing briefs in
this court, depending on the circumstances, such as those in this case. We reviewed the record and laws and find
clear violations of Appellant’s procedural due process rights at the hearing of July 13, 2009. Appellant was never
informed that this was her one and only shot at presenting her side (lack of notice), which precluded her from
presenting evidence on her own behalf, including testifying on her own behalf (opportunity to be heard). The
manner the judge conducted the hearing appeared to be more as an advocate for Appellee than as an independent
decision-maker. Based on these findings we hold the orders entered on July 13, 2009 shall be VACATED and this
matter REMANDED for another hearing which comports with due process.
It is so ORDERED.

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Melina O’FLYNN, Appellant,
vs.
Jason FULFER, Appellee.
Case No. AP09-011, 5 CTCR 24, 37 ILR 6001
10 CCAR 21
[Appellant was not represented by counsel.
Appellee was represented by counsel, Juliana Repp.
Trial Court case number CV-CU-2008-28242]

Decided December 9, 2009.
Before Chief Justice Anita Dupris, Justice Earl McGeoghegan and Justice Conrad Pascal

Dupris, CJ
This matter came before the Court of Appeals pursuant to a filing of a Notice of Appeal by Appellant on
September 21, 2009. Upon review of the record and the law, we dismiss this appeal without hearing as the trial judge
was within her discretion to deny the motion for contempt and there is no appealable issue under which relief can be
granted by the Court of Appeals.
SUMMARY
A Petition for Child Support and/or Support was filed by Appellant, Ms. O’Flynn, on July 30, 2008.
Several hearings were held between then and September 2009 and an extensive record was created. On September
10, 2009, Appellant filed a Motion/Declaration for Show Cause re Contempt (MTCS) alleging Appellee failed to
comply with the Temporary Court Order from October 2008. This motion was denied by the Trial Court on
September 11, 2009. Appellant timely filed her appeal.
JURISDICTION
The Court of Appeals has jurisdiction to hear this matter pursuant to Article VIII of the Colville Tribal
Constitution. When an issue is raised on a matter which the Court identifies as one where it cannot grant relief, the
Court may dismiss without hearing. Dogskin v. CFS, 9 CCAR 01, 5 CTCR 02 (02-15-2007).
ISSUE
Did the Trial Court judge err in denying the motion for contempt?
STANDARD OF REVIEW
In prior cases we have determined that our standard of review in contempt issues is "abuse of discretion."
That is, we will overturn the Trial Court's decision only if its action was manifestly unreasonable, or exercised on
untenable grounds, or for untenable reasons. Further, a minimum review for abuse of discretion would require a

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review for due process. Sonnenberg v. Colville Tribal Court, 5 CCAR 09, 14, 3 CTCR 09 (02-12-1999).
DISCUSSION
The Appellate Court finds that the Colville Tribal Court derives its contempt powers through the Court’s
inherent authority and by statutory authority found in Colville Tribal Code (CTC) sections 1.12.02 and 1.12.03.
Lezard v. CCT, 3 CCAR 04, 05, 2 CTCR 11, 22 ILR 6135, 6 NALD 7009 (08-07-1995). 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.
Sonnenberg v. Fry, 4 CCAR 03, 04, 2 CTCR 36, 24 ILR 6172 (04-17-1997). The Court concludes the Trial Court
has the inherent power to determine what is a contemptuous act and may act accordingly. In Re Welfare of A.
children, 3 CCAR 53, 2 CTCR 22, 24 ILR 6019 (06-21-1996).
This Court cannot substitute its judgment for the Trial Court's. In making a determination whether the Trial
Court abused its discretion, either in its findings or in its conclusions of law or both, we review to see if the Trial
Court's decision is manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.
Sonnenberg v. Colville Tribal Court, Id. at 15.
In the instant case, the Trial Court has created a huge record. There have been many show cause hearings,
the first lasting three (3) days. Motions have been filed by both parties. Temporary custody has changed and various
conditions have been imposed.

15

Several witnesses have testified and evidence has been gathered and reviewed.

After each hearing, a temporary order has been entered, at least five (5) since the October 2008 hearing. There have
been at least 35 motions filed. Of those, 10 have been for contempt of court issues. Several of the motions were
withdrawn or “unfiled” and the rest were not served properly so were dismissed.
The Trial Court has broad discretion in determining when to impose contempt of court. The trial judge is in
a better position to determine if an act is contemptuous because they are much more familiar with the tenor of the
case and the demeanor of the parties involved. There is nothing in the record which indicates that the judge’s denial
of the motion was manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.
Due process dictates that a litigant be given the opportunity to be heard. There is extensive evidence in the
record that the judge was well aware of what was taking place. The judge determined that the action that this motion
referred to did not raise to the level of a contemptuous act and so denied the motion From a review of the record,
we did not find any basis which would show that the judge made her decision unreasonably. The judge was well
within her discretionary authority to make her decision on the motion. Therefore, we hold that the judge did not err
in denying the motion for contempt.
It is THEREFORE ORDERED that the appeal shall be denied and the matter remanded to the Trial Court
for action consistent with this Order.

15

There has been no final order entered though. Due to the length of the litigation and the extent of the record, we
would encourage the Trial Court to enter a final order to give the litigants some finality.

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Christopher LEZARD, Appellant,
vs.
Christina DECONTO, Appellee.
Case No. AP09-001, 5 CTCR 25, 37 ILR 6010
10 CCAR 23
[Parties appeared pro se.
Trial Court No. CV-CU-2009-29002]

Decided December 16, 2009.
Before Chief Justice Anita Dupris, Justice David C. Bonga, and Justice Conrad Pascal
Dupris, CJ
SUMMARY
On January 5, 2009 Appellant filed a Petition for Custody and Support for the minor C.L.L.

16

(hereinafter

the minor) in the Trial Court. On January 5, 2009 Appellant also filed for, and was granted, temporary custody of
the minor.

17

Appellee filed her own Petition for Custody and Support for the minor in the Trial Court on January 6,

2009. A Show Cause hearing on the issue of temporary orders was set for January 20, 2009.
On January 16, 2009 Appellee filed a Motion to Dismiss, which was mailed to Appellant. The several
affidavits of non-party witnesses’ statements to support Appellee’s Motion to Dismiss were never served on
Appellant. Appellee submitted them at the January 20, 2009 Show Cause Hearing.

18

The Court order entered on

January 5, 2009 granted temporary custody to Appellant; a temporary restraining order against Appellee; and set a
Show Cause Hearing in order to allow Appellee “... to answer to the requests as stated in the motion and affidavit on
file herein.” The notice portion of the January 5, 2009 Order did not inform either party that a Motion to Dismiss
the underlying cause of action would be considered at the hearing on January 20, 2009.
On January 20, 2009 the Trial Court went beyond the Show Cause hearing and ruled on Appellee’s Motion
and Declaration to Dismiss. The Judge dismissed the underlying cause of action with prejudice; she considered the
Motion to Dismiss and the submitted affidavits in her rulings. Appellee appealed, arguing violations of his due
process rights. We granted appeal. For reasons stated below we find Appellant’s procedural due process rights have
been violated, and the judgment entered on January 20, 2009 should be vacated, and this matter remanded.
ISSUE
16
17

The name of the minor is not relevant to our rulings, so it will not be used in the Opinion.
Appellee also asked for temporary orders on January 6, 2009, but there is no record that a trial judge ruled on her requests.

18

Appellee did not file a Brief in this case as directed; it was due July 17, 2009. All objections to the issues we are considering are deemed
waived by Appellee by her non-response. See COACR 13 (e)(4).

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10 CCAR ___

Were Appellant’s rights to procedural due process violated when the Trial Court went beyond the
scope of the Show Cause Hearing and granted Appellee’s Motion to Dismiss?
STANDARD OF REVIEW
The issue is a question of law which we review de novo. Colville Confederated Tribes vs. Naff, 2 CCAR
50, 2 CTCR 08, 22 ILR 6032 (1995). Where there are written findings of fact we give deference to the Trial Court,
as a general rule. In this case the Trial Court Judge entered written findings of fact and conclusions of law on
January 29, 2009, a full week after the time the appeal was filed in our Court. The written findings are not specific
findings, i.e. reasoning by the Judge of what are the facts found in the case after a review of all of the evidence
presented. Zavala v. Milstead and Joseph, 10 CCAR 14, 5 CTCR 22, __ILR ___ (2009). The written findings are
more in the nature of an extensive judicial summary of the pleadings filed and the evidence and arguments presented
in this case. For this reason we review the oral record de novo.
DISCUSSION
Basic tenets of procedural due process include adequate notice, the opportunity to be heard and present
evidence on one's own behalf. The time and manner of the hearing must be meaningful. R. L. and B. J., Minors, v.
CCT Child and Family Services, 6 CCAR 1, 3, 3 CTCR 39, 28 ILR 2863 (2001).
In this case, both parties filed separate petitions for custody and support for their son, a minor child.
Appellant sought, and was granted, temporary orders ex parte regarding the custody of the minor as well as
restraining Appellee from removing the minor pending the Show Cause hearing set on January 20, 2009.
The notice given to Appellant regarding the January 20, 2009 hearing was that the hearing would be
regarding his requests for temporary custody and restraints against Appellee until a full hearing on his Petition for
Custody. Appellant never received adequate notice that Appellee’s Motion to Dismiss would be considered at the
January 20, 2009 hearing. The facts show he did not receive a copy of the Motion to Dismiss in time to adequately
prepare his statement and evidence on his own behalf. The Motion to Dismiss was filed only four (4) days before the
hearing, and was mailed to Appellant.
There are very few written procedural rules for litigants to follow at the Trial Court. Regarding motions,
however, the CCT Law and Order Code (CTLOC) gives some guidance which, we presume is based on procedural
due process. CTLOC § 1-2-10 states motions shall be filed and served on the opposing party “...no later than five
(5) days prior to the time specified for the hearing....” (emphasis added). The three (3) exceptions to the five-day rule
are : (1) if court rules establish a different time; or (2) if the Court orders a different time frame; or (3) if good cause
is shown. Id.
The Trial Court did not follow CTLOC § 1-2-10. First, Appellee’s motion was not served nor filed at least
five (5) days before the January 20, 2009 hearing. Second, there is nothing in the record showing Appellant had
notice the January 20, 2009 hearing was going to include addressing Appellee’s motion. Third, there is nothing in the
findings of fact which shows any of the three (3) exceptions existed on January 20, 2009.
Parties must have reasonable notice prior to any substantive hearing to allow the parties time to prepare
their respective cases. Gallaher v. Foster, et al., 6 CCAR 48, 52, 3 CTCR 50, 29 ILR 6079 (07-23-2002). The Tribal
Civil Rights Ordinance requires the Tribes to meet due process requirements. CTC 56.02(h). We have held over the
years that due process is required and that notice and hearing are fundamental to due process. In Re the Welfare of
J.A.M., et al, 3 CCAR 6, 7, 3 CTCR 14 (08-07-1995).

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10 CCAR ___

When a person is not given adequate notice of what is to be considered in a hearing, all the other procedural
rights are impacted. He does not have adequate time to prepare for the hearing, and to submit evidence on his own
behalf. Even if the end result appears clear to the judge, the parties have a right to present their evidence in a
meaningful manner. The judge is the gatekeeper of due process. It is the Court’s responsibility to ensure adequate
notice is provided to every litigant, and to allow everyone who appears in Court to have his say, in his own way.
CONCLUSION
There is no issue of jurisdiction in this case. Both parties submitted to the jurisdiction of this Court in their
actions at the Trial Court. Contrary to Appellant’s arguments in his brief, the Trial Court did not rule there was a
lack of jurisdiction. The Trial Court held this was not a convenient forum, considering the facts in this case, i.e., the
parties had more ties to Ilwaco, Washington than to the Colville Reservation. This may true.
The Trial Court ruled prematurely, however. Appellant did not have his full day in Court. Even though he
agreed some of the information in Appellee’s affidavits may be true, he was not given an adequate time to review the
motion to dismiss nor the affidavits. The only notice given to the parties about the January 20, 2009 hearing was
regarding whether or not Appellant’s temporary custody and restraining orders should continue until the final hearing
on the Petition for Custody was heard. At the minimum the Trial Court should have set the Motion to Dismiss for a
separate hearing and given Appellant an opportunity to respond. The Judge could have denied the request for
temporary custody and returned the minor to his mother without dismissing the matter before Appellant had an
opportunity to present his side on the issue of inconvenient forum. For these reasons the Order Dismissing With
Prejudice should be vacated and the matter remanded.
Finally, as a request for relief, Appellant asks that a new Judge be appointed to hear the matter. . We do
not assign trial judges to cases. If a party is not satisfied with the judge assigned, then he must file a Motion and
Affidavit of Prejudice with the Trial Court. If the Motion is denied, he may file a limited appeal. Rulings on requests
to remove a judge from a case can be immediately appealed to the Court of Appeals without having to wait for a
hearing on the other motions or petitions filed in the case. In the instant case, Appellant requested the removal of
the judge directly from the Court of Appeals and not the Trial Court. The request is not ripe for review.

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10 CCAR ___

Clinton J. NICHOLSON & Lisa NICHOLSON-TRUE, Appellants,
vs.
John ST. PIERRE, Ricky JOSEPH, Rheta HARJO, William NICHOLSON,
and Keelee TIMENTWA, Appellees,
Case No. AP09-005, 5 CTCR 26, 37 ILR 6018
10 CCAR 26
[Appellants appeared pro se.
Appellees did not appear nor were they represented by counsel.
Trial Court Case number CV-OC-2009-29088]

Hearing held August 21, 2009. Decided January 12, 2010.
Before Justice Theresa M. Pouley, Justice Howard E. Stewart, and Justice Dennis L. Nelson

Nelson, J. for the Panel
The matter being appealed is the dismissal by the trial court of the appellant’s claim against the appellees in
their capacity as employees of the Bureau of Indian Affairs (hereinafter BIA). Grounds for the dismissal are that the
tribal court is without jurisdiction to hear claims against BIA employees acting within the scope of their duties. We
affirm and deny the appeal.
INITIAL HEARING
The purpose of an initial hearing is to determine whether a limited appeal on the law or facts is warranted;
whether a new trial should be granted; or whether the appeal should be denied or dismissed. COACR
12(a)(1)(2)(3). In considering an appeal this court determines whether the trial court had jurisdiction, that is, the
legal authority, to hear a matter before the court.
ISSUE
The primary issue before the Court is whether this Court has jurisdiction to hear this matter. Jurisdiction
defines the powers of courts to inquire into facts, apply the law, make decisions, and declare judgment. Police Com’r
of Boston v. Municipal Court of Dorchester Dist., 374 Mass. 640, 374 N.W.2d 272, 285. Jurisdiction is defined in
the Tribes’ Law and Order Code. Section 1-1-71 states:
The jurisdiction invoked by this Code over any person, cause of action or subject shall be
exclusive and shall preempt any jurisdiction of the United States, any state, or any political
subdivision thereof; except in those instances in which federal law provides otherwise. This Code
does not recognize, grant or cede jurisdiction to any other political or governmental entity in which
jurisdiction does not otherwise exist in law. Emphasis added.
Tribal courts have no legal authority to “enjoin the work of any federal agent or employees in the
performance of his duties”. U.S. v. White Mountain Apache Tribe, 784 F.2d 917 (9th Cir. 1986).

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29

The court in

10 CCAR ___

White Mountain Apache goes on to state:
“The Tribe's own sovereignty does not extend to preventing the federal
government from exercising its superior sovereign powers. See San Carlos,
463 U.S. at 571 ("tribes retain . . . their historical sovereignty not 'inconsistent
with the overriding interests of the National Government.'") (quoting
Washington v. Confederated Tribes, 447 U.S. 134, 153, 65 L. Ed. 2d 10,
100 S. Ct. 2069 (1980)). The district court was accordingly correct in concluding
that the Tribe was without authority to restrict federal officials in their conduct
of official business on the Reservation. United States v. White Mountain
Apache Tribe, 604 F. Supp. at 466; see also United States v. Blackfeet Tribe,
369 F. Supp. 562, 564-65 (D. Mont. 1973) United States v. Blackfeet Tribe,
364 F. Supp. 192, 194-94 (D. Mont. 1973). This conclusion holds regardless
of the merits of the Tribe's charges that the officials were conducting their
official business improperly.”
It clearly follows that the trial court was without legal authority to hear the claims of the Appellants against
BIA employees in the performance of their duties.
GUIDANCE
It is not unusual in Indian Country for tribal members to find complaint against the U.S. government or its
employees. It is also not unusual for those tribal members to seek redress in their respective tribal courts. The panel
deems it appropriate to offer instruction to those seeking such redress.
As with almost all legal matters, it is imperative to seek legal counsel. A person representing himself is
almost always without the necessary knowledge or expertise to go forward with his complaint in a meaningful way.
Unfortunately, many tribal members are without resources to hire legal assistance. They may find it
through publically funded legal services for the indigent or through legal services offered through law school clinics.
E.g. The Indian Law Program at the University of Gonzaga School of Law.
Should a tribal member not afford or be eligible for legal assistance, he or she may pursue a claim on their
own. This is ill-advised although not unknown. It takes many hours of research, most of which proves
unproductive. It is also a one-sided battle. A court must deal with complete impartiality with those who come
before it. The fact that one party is represented by an attorney or several attorneys and the other has none does not
sway the court one way or the other. It deals with facts and the law, not who represents the parties.
Complex matters such as contract interpretations, real property issues, and testamentary interpretations are
examples of cases where attorneys should be involved. The case before us in one of those.

We strongly urge the

Appellants to seek legal counsel should they decide to pursue their claim in an appropriate jurisdiction.
CONCLUSION
For the foregoing reasons, the appeal in this matter should be denied.
IT IS THEREFORE ORDERED THAT the appeal of Clinton J. Nicholson and Lisa D. Nicholson-True is DENIED.

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PAGE DELIBERATELY LEFT BLANK

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10 CCAR ___

David LOUIE, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case Number AP09-002/003, 5 CTCR 27, 37 ILR 6017
10 CCAR 29
[Tim Liesenfelder for Appellant.
Jonnie Bray, for Appellee.
Trial Court Case Number CR-MA-2003-26160 and CR-MA-2003-26282]

Decided January 13, 2010.
Before Chief Justice Anita Dupris, Justice Conrad Pascal and Justice Theresa M. Pouley
Dupris, CJ
PROCEDURAL HISTORY
On March 31, 2003 the Trial Court accepted Appellant’s guilty plea on the charge of Possession of
Paraphernalia. Sentence was not entered on that date. The Trial Court appointed a spokesman for Appellant. On
August 1, 2003 the Trial Court accepted guilty pleas by Appellant for ten separate charges and ordered a
Pre-Sentence Investigation Report. Appellant was represented by a spokesman and signed a written statement on
guilty plea to all of the charges. He also signed a waiver of speedy disposition regarding the sentencing. The Trial
Court granted him a furlough for 6 months to allow him to go to treatment, after which he was to report back to the
Court for sentencing.
On May 4, 2004 the Court issued a no-bail warrant for Appellant because he had not appeared for
sentencing on his guilty pleas. Appellant and his spokesman appeared in court on Sept. 14, 2007, and the Trial
Court set his sentencing for Oct. 12, 2007. Appellant apparently did not appear for his scheduled sentencing. The
Trial Court finally entered Judgment and Sentence on all the charges on April 29, 2009. At the April 29, 2009
sentencing Appellant filed two different written statements on guilty plea; on both he notes his statement is not
voluntary and he wants to withdraw the guilty pleas. Judgment and Sentence were entered on all charges May 5,
2009. Appellant timely filed his appeal.
We held the Initial Hearing on July 21, 2009. At the Initial Hearing Appellee made an oral motion to
dismiss. We reserved on Appellee’s motion to dismiss and asked Appellee to file a written motion. We gave
Appellant time to respond to the Motion. We also continued the hearing so we could research whether there is an
issue of law regarding Appellant’s alleged non-voluntary guilty pleas.
After reviewing the written record in this matter, and the applicable law, we hold the Motion to Dismiss
should be granted and the Appeal dismissed, for the reasons set out below.
ISSUE
Should the Court of Appeals Dismiss the Appeal As a Matter of Law?
STANDARD OF REVIEW

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We review errors of law de novo. Colville Confederated Tribes vs. Naff, 2 CCAR 50, 2 CTCR 08, 22
ILR 6032 (1995); Wiley, et al v. Colville Confederated Tribes, 2 CCAR 60, 2 CTCR 09, 22 ILR 6059 (1995);
Palmer v. Millard, et al, 3 CCAR 27, 2 CTCR 14, 23 ILR 6094 (1996) (Because the Tribal Court dismissed the case
below as a matter of law, we review the matter de novo.);

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

(1997) (The Appellate Court engages in de novo review of assignments or errors which involve issues of law); In Re
The Welfare of R.S.P.V., 4 CCAR 68, 3 CTCR 07, 26 ILR 6039 (1998).

Guilty Pleas
At the Initial Hearing we inquired of Appellant how he could appeal this matter when the record indicates
he entered guilty pleas in 2003 with the assistance of counsel. He stated his plea was not voluntary, and if we listened
to the recordings of the hearings on the acceptance of the guilty pleas we could hear his reluctance. We reserved on
the issue of whether there is an appealable issue, directed Appellee to formalize its Motion to Dismiss in writing and
directed Appellant to file a response to the motion. We received the written motion of Appellee but no response from
Appellant. We are not able to review the oral record of the August 1, 2003 hearing in that the recordings are no
longer available. Even there is no oral record of the hearing in question, we find cause to grant the Motion to Dismiss
based on the written record.
In 2003 the Trial Court accepted guilty pleas from Appellant on eleven (11) charges. In March, 2003 it
doesn’t appear Appellant had a spokesman on one charge (Possession of Paraphernalia). This case seems to have
19

been combined with the guilty pleas on August 1, 2003 for the other ten charges

for purposes of sentencing,

however. Between August 1, 2003 and the sentencing on April 29, 2009 Appellant “...appeared for Court hearings
on ten different occasions where he could have raised the issue of his ‘coerced’ plea, but instead, Appellant chose to
postpone the sentencing by means of requesting continuance and receiving two bench warrants.” (Appellee’s Motion
to Dismiss, page 2).
We accept these facts as a true reflection of the record .

20

Our court rules do not give us direction on what

to consider when one party fails to respond to a Motion to Dismiss. COACR 13(e) allows us to accept the record
submitted by Appellant if Appellee fails to submit a brief, and considers objections to be waived by the
non-response. We can analogize this to a Motion to Dismiss based on substantive allegations. That is, in this case,
Appellee raised valid, substantive reasons why we should not let this Appeal go forward. Appellant had notice at the
Initial Hearing on July 17, 2009 that we would be considering the arguments in Appellee’s Motion to Dismiss. We
gave Appellant an opportunity to respond to the substantive arguments raised by Appellee, with the understanding
19

Attempt to Elude; DUI; two counts of DWS; two counts of Reckless Driving; Disorderly Conduct; Prohibited Act (Para); Unauthorized Use
of Vehicle; and Resisting Arrest.
20

We have not been apprised of any reasons Appellant has failed to respond to the Motion to Dismiss as directed. This causes us some concern
regarding his spokesman’s representation. See, Seymour v. CCT, 3 CCAR 11, 2 CTCR 12, 23 ILR 6008 (1995) (“Depending on the facts of the
particular case, an attorney’s failure to file a brief, as ordered by the Court, calls into question the quality of the attorney’s representation of the
client, [and] adherence to required practice standards of attorneys....): Gallaher v. CCT, 5 CCAR 31, 3 CTCR 27, 27 ILR 6099 (2000) (“Not
presenting favorable case law on the assumption that the appellate court will find such is not a zealous representation for one’s client nor is it
acceptable.), and Amundson v. CCT, 4 CCAR 62, 2 CTCR 68, 25 ILR 6178 (1998) (in which Court of Appeals ordered supplemental briefs
when Appellee stated it was conceding each point made by Appellant; the Court of Appeals reasoned it was incumbent on both parties to provide
all the relevant law, whether it supported one side or the other). We strongly urge Mr. Liesenfelder to attend to his duties in the future.

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10 CCAR ___

we would be ruling on the Motion. Appellant chose not to present a different record or arguments why we should not
grant the Motion to Dismiss. Therefore, for purposes of Motions to Dismiss based on substantive grounds, we will
consider a non-response by the other party to have waived objections to our consideration of the record proffered by
the moving party.
The written statements on Appellant’s guilty pleas have clear assertions that he understood the nature of
his guilty pleas, made them knowingly and intelligently with assistance of counsel, and understood the consequences.
We have upheld the guilty plea process at the Trial Court. In Condon v. CCT, 1 CCAR 70, 71, 20 ILR 6107 (1993)
we found:
From the procedure followed by the Tribal Court, we believe that the appellant was provided with
an ample opportunity to make a reasoned decision whether to plead guilty and accept the sentence
imposed by the Court or withdraw her plea and go to trial. Moreover, the appellant was
represented by Counsel who was quite familiar with Tribal Court procedure involving negotiated
pleas.
In Amundson v. CCT, 4 CCAR 62, 63, 2 CTCR 68, 21 ILR 6178 (1998), we found: “...the Tribes have a procedure
for acceptance of guilty pleas, and that procedure complies with due process of law.”
It appears from the record that after Appellant entered his several guilty pleas he was given an opportunity
to forestall the sentencing phase for various reasons. He went to alcohol treatment; he had medical problems; and he
just failed to appear, thereby causing the Court to issue bench warrants for him. He actively sought, and was
granted several continuances. Six years later he is before the Trial Court and is told he is finally going to be
sentenced. For reasons not clear in the record, he was asked sign two other statements on plea of guilty. Six years
after his initial guilty pleas were accepted he disagreed; he stated he wanted to withdraw his guilty pleas and go to
trial.
Appellee is correct in asserting Appellant should not be allowed to benefit from the delay between the time
he first entered his guilty plea and the sentencing in that he was responsible for the delays. See, CCT v. Marchand, 9
CCAR 65, 71, 5 CTCR 17 (2008). A tenuous assertion at the Initial Hearing that Appellant really didn’t want to
enter the guilty pleas six years ago cannot defeat the well-developed written record in this case. Appellant was
represented by an attorney at the time of his pleas; he signed a document stating his understood what he was doing,
he was doing it voluntarily and he understood the consequences. Nothing in the record refutes these assertions.
Appellee has supported its Motion to Dismiss.
Lack of Oral Record: August 1, 2003
As a general rule, we have held if there is no oral record, the matter should be remanded for a new
hearing. George v. George, 1 CCAR 52, 1 CTCR 53 (1991) (In the absence of a verbatim record ..., the record is
inadequate for review purposes. Basic due process concepts dictate that the only remedy for an inadequate record is
reversal and remand); Smith v. CFS, et al., 8 CCAR 36, 4 CTCR 24 (2005) (We would need to review the oral
record of the proceeding in order to determine if there is sufficient evidence on the record to support this conclusion
of law. Since there is no oral record, it must be remanded to make an oral record); and Moon v. Moon, 7 CCAR 03, 4
CTCR 02 (2003) (When upon review of the record it is shown that the record is incomplete and flawed, then the rule
is to reverse and remand.).
Based on the well-developed written record in this case, we hold that the case herein is an exception to

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10 CCAR ___

having to remand. First, the written record is complete; the statements on guilty pleas are complete and have
Appellant’s signature. Second, the inordinate time lapse between the pleas and the sentencing was caused by
Appellant. As Appellee pointed out, we strive for finality in our cases, see, Tonasket v. CCT 7 CCAR 40, 4 CTCR 13
(2004). In CCT v. Marchand, 9 CCAR 65, 5 CTCR 17 (2008), we found that a defendant could not reap the
benefits of a long delay by causing the delay. In Marchand, Appellant caused the case to be delayed for almost two
years, then argued his right to a speedy disposition was violated. In this case, Appellant caused the matter to be
delayed almost six years, then claims he really didn’t want to plead guilty. His reasoning is not credible, nor is it
supported by the written record. Appellant’s assertion that he was reluctant to enter guilty pleas in 2003 is
self-serving and unsupported.
For the above-stated reasons we GRANT Appellee’s Motion to Dismiss and DENY the appeal. We remand
this matter to the Trial Court for action consistent with this Order.

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10 CCAR ___

Diana M. SOCULA, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP10-001, 5 CTCR 28, 37 ILR 6043
10 CCAR 33
[Appellant appeared in person and without representation.
Appellee appeared through spokesperson Jonnie Bray, Office of Prosecuting Attorney.
Trial Court Case Number IN-2009-009318]

Decided April 4, 2010.
Before Chief Justice Anita Dupris, Justice Conrad Pascal and Justice Howard E. Stewart
Dupris, J.
This matter came before the Court of Appeals (COA) pursuant to an Initial Hearing held on March 19,
2010. Appellant appeared in person and without representation. Appellee appeared through spokesperson Jonnie
Bray, Office of Prosecuting Attorney.
The purpose of an Initial Hearing is to allow the appellate panel to 1) decide whether the facts and/or laws
warrant a limited appeal; 2) whether a new trial should be granted; or 3) whether the appeal should be denied or
dismissed. Based on the following, the Order issued by the trial court is vacated and the matter remanded for a new
hearing.
SUMMARY
Appellant was issued citation number 18248 on December 7, 2009. The citation was issued for Failure to
Exercise Due Care, RCW 46.61.245. The citation correctly listed her address as her present home address. Filing
by the Tribal Police Department was timely. Appellant noted on the back of her copy that she wished to contest the
hearing, signed the copy and filed it with the court on December 8, 2009. She did not fill in the address portion as the
address on the front of the citation was correct, without any changes necessary. The copy was timely filed.
On December 31, 2009, the Court issued a Notice of Hearing, setting the hearing for February 8, 2010 at
9:00 a.m.. The Notice was sent to the address that the Court had on record in its Full Court system, which was
different from Appellant’s current address. The Full Court address was several years old and outdated. Consequently,
Appellant did not receive notice of the contested hearing date and did not appear for it.
At the hearing, the Court found that Appellant failed to appear, and imposed a $100 judgment. Appellant
filed a Motion to Reconsider. The motion was denied by the Court without a hearing and without a response from
Appellee.

21

Appellant timely filed an appeal.

After reviewing the record and applicable laws, we find Appellant did not receive adequate notice, and the
21

Appellee advised this Court that the Tribes did not receive appellant’s motion for reconsideration until after the order denying the motion was
filed. Appellee had no objection to the matter being remanded for a contested hearing.

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10 CCAR ___

judgment should be vacated and this matter remanded to the Trial Court for a hearing.
DISCUSSION
Appellant alleges she was denied due process of law because she did not receive adequate notice of her
contested hearing. In order to determine what her rights are, and if any have been violated, the Court must look to the
Colville Tribal Law and Order Code (CTLOC).
22

The instant action is a traffic infraction. CTLOC § 3.3.1 , Provisions Incorporated, provides that the
Colville Tribe will incorporate various portions of the Revised Code of Washington (RCW) as law on the Colville
Reservation. RCW 46.61 covers traffic infractions. CTLOC § 3-3-1 incorporates RCW 46.61 in its entirety. CTLOC
23

§ 3-3-141 , Infraction – What Constitutes, describes what acts are subject to designation as a civil infraction and,
thus, may not be classified as a criminal offense.
24

The Court then looks to Chapter 2-3, which covers procedures for civil infractions. CTLOC § 2-3-3 ,
Application and Procedure, says that this chapter shall apply to traffic infractions and says that CTLOC Chapter 2-2
shall govern all questions as a result of the enforcement of this chapter if questions are not covered in Chapter 2-3.
Chapter 2-2 covers civil actions.
CTLOC § 2-3-41, Notice of Infraction, specifies that a notice of infraction shall serve as the civil complaint
and shall satisfy all requirements under Chapter 2-2. The notice of infraction in the instant case meets all the
requirements set forth for notice to the defendant.
CTLOC § 2-3-42, Response to Notice, gives the defendant fifteen (15) days in which to respond. Appellant
timely filed her response requesting a contested hearing.
On December 31, 2009, the Court issued a Notice of Hearing requiring Appellant to appear for her
contested hearing on February 8, 2010.

25

First we look at the Notice of Hearing and the troubling language

included in it. In the section which gives defendants notice on what may occur should they fail to appear for a
hearing is the bolded statement:
YOUR FAILURE TO APPEAR WITHOUT PRIOR AUTHORIZATION FROM THE COURT

22

The substantive provisions of the follow parts of the Revised Code of Washington as presently constituted or hereafter amended are
incorporated herein as provision of this Code and shall apply to all persons subject to the jurisdiction of the Colville Tribal Court: RCW Chapter
46.04, 46.37, 46.44, 46.48, 46.61, and RCW 46.20.015, 46.52.010, 46.52.020, 46.52.030, 46.52.035, 46.652.040. (emphasis added).
23

Failure to perform any act required or the performance of any act prohibited by this Chapter is designated a traffic infraction and may not be
classified as a criminal offense except for the following provisions of this Chapter incorporated by reference in CTC § 3-3-1: ... (emphasis
added).
24

(a) Unless otherwise provided by specific language found elsewhere in this Code, this Chapter shall apply to general or traffic infraction, field
bond procedure, civil offense or forfeiture action listed in this Code or regulation adopted thereunder.
(b) Unless other procedures are provided by this Chapter, the Civil Actions Chapter 2-2 of this Code shall govern all questions of
procedure arising as a result of the enforcement of this Chapter. (emphasis added).
25

CTLOC § 2-3-43, Hearings –Rules of Practice, states that the date of the hearing should have been within thirty (30) days of the receipt of
the notice requesting the contested hearing. It should have been set and mailed within five (5) days of receipt by the Court. It appears neither of
those dates were complied with in this case. We will not addressed the issue, however, since it was not raised by either party. We counsel the
Trial Court to become familiar with such statutory requirements in the future as a matter of procedure.

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WILL RESULT [sic] IN THE ISSUANCE OF A BENCH WARRANT FOR YOUR ARREST
AND REVOCATION OF YOUR BAIL OR PERSONAL RECOGNIZANCE RELEASE, AND
FORFEITURE OF ANY BOND POSTED.
CTLOC § 2-3-4(b)
3-2-41(a)(2)

27

26

defines infractions as a civil offense and not subject to criminal punishment. CTLOC §

directs that the Notice of Infraction include a statement that an infraction is not a criminal offense and

imprisonment cannot be imposed as a sanction. The Trial Court has no statutory authority to include the warrant
language in its Notice of Hearing for civil traffic infractions.
The civil infractions clerk filed a memo to the official court file stating she discussed with Appellant how
the Notice of Hearing was sent to Appellant’s old address because Appellant did not update her address with the
Court and did not fill out a new address on the back of her citation. There is no statute nor court rule which
requires a party to periodically update his/her address once he/she is in the Court’s Full Court System.
In the State of Washington, RCW 46.20.205

28

specifies that when a person moves, he/she must notify the

Washington Department of Licensing of the address change within ten days. This address is then the address of
record for the State of Washington, and, by extension, for the Colville Tribe concerning driver’s licenses.
In the instant case, the police officer used the information from Appellant’s valid driver’s license when he
entered the information on the Notice of Infraction. Appellant received the Notice of Infraction, saw that the address
information was correct and did not fill out the information on the back of the infraction notice believing that it was
not necessary. Nothing on the form indicates that the address on the front of the form citation would not be used as
the address to send subsequent notices.
Appellant was not afforded due process by the Trial Court. As we have stated before, the Trial Court must
be ever vigilant in protecting the rights of litigants before it, and proceed objectively and fairly in every case, no
matter how minor. One way to ensure fair application of the law it to provide uniform procedures for litigants to
follow. Unfortunately the Trial Court does not have written procedural rules yet.
In this case we find the Trial Court relied on personal knowledge of Appellant, i.e. she had once worked in
the Probation and Parole Department, to base its decision to deny a new hearing. This was even though Appellant
had provided a correct address on the citation complaint. This ensured Appellant did not have adequate notice of her
26

“Infraction” means a civil offense in which the remedy involved is a civil fine or penalty which has been pre-determined by the Business
Council as provided by the subchapter ”Infractions” of this Chapter. An infraction is not a crime and the punishment imposed therefore shall not
be deemed for any purpose a penal or criminal punishment and shall not affect or impair the credibility of a witness or otherwise of any person
convicted thereof. (emphasis added).
27
(a)... The content of the notice shall include the following: ... (2) A statement that an infraction is a non-criminal offense for which
imprisonment cannot be imposed as a sanction.
28

(1) Whenever any person after applying for or receiving a driver’s license or identicard moves from the address named in the application or in
the license or identicard issued to him or her, the person what within ten days thereafter notify the department of the address change. The written
notification must be in writing on a form provided by the department and must include the number of the person’s driver’s license. The written
notification, or other means as designated by rule of the department, is the exclusive means by which the address of record maintained by the
department concerning the licensee or identicard holder may be changed. ... (b) Any notice regarding the cancellation, suspension, revocation,
disqualification, probation, or nonrenewal of the driver’s license, commercial driver’s license, driving privilege, or identicard mailed to the
address of record of the licensee or identicard holder is effective nothwithstanding the licensee’s or identicard holder’s failure to receive the
notice.

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10 CCAR ___

contested hearing.
We further find the Trial Court ignored procedure when Appellant filed a Motion to Reconsider. The Trial
Court did not give Appellee an opportunity to respond, nor did it allow Appellant a hearing on the motion. See
CTLOC, section 1-2-10.
Finally, because we remand for a hearing, which must be set by sending Appellant another Notice of
Hearing, we find the Trial Court must develop an adequate Notice of Hearing that comports with the civil infraction
laws.
Based on the foregoing, now, therefore
It is ORDERED:
1. The Order for Monetary Judgment is vacated and this matter remanded for a new contested hearing .
2. The Trial Court is directed to redraft the Notice of Hearing to comport with the CTLOC.

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10 CCAR ___

Kerry L. Green Sr., Appellant,
vs.
Kelly L. Green/Gossett,, Appellee.
Case No. AP10-013, 5 CTCR 29, 38 ILR 6022
10 CCAR 37
[Appellant, appeared personally and without counsel.
Appellee, appeared personally and represented by Mark J. Carroll, Omak WA.
Case No. CV-DI-2010-33221]

Hearing January 21, 2011. Decision February 8, 2011.
Before Chief Justice Anita Dupris, Justice Gary F. Bass, and Justice Earl L. McGeoghegan
Dupris, CJ
SUMMARY
On August 17, 2010 Kelly L. Green, Appellee herein, filed in the Colville Tribal Court for a dissolution of
her marriage to Kerry L. Green, Sr., Appellant herein. On her Petition for Dissolution of Marriage Appellee
indicated neither she nor Appellant were members of the Colville Tribes, but that she was a descendant. The Trial
Judge heard the Petition on November 2, 2010, and entered an “Order From Dissolution Hearing,” (Order) signed
November 4, 2010. The Order included, inter alia, maintenance payments from Appellant to Appellee for six (6)
months, starting in December, 2010. The Order did not contain any findings of fact or conclusions of law, and did
not address whether the Trial Court had jurisdiction to hear the matter. Appellant filed a timely appeal on the issue of
maintenance, alleging Appellee had already remarried.
This Court finds that a requisite to subject matter jurisdiction is that one of the parties to a dissolution in the
Colville Tribal Court must be a member of the Colville Tribes. Subject matter jurisdiction cannot be consented to or
waived by the parties. Based on the reasoning below we find the Order From Dissolution Hearing dated November 4,
2010 should be vacated and the matter remanded for a dismissal for lack of jurisdiction.
STANDARD OF REVIEW
The issue of subject matter jurisdiction is a question of law, subject to a review de novo. We review
findings of fact under the clearly erroneous standard, and errors of law de novo. Colville Confederated Tribes vs.
Naff, 2 CCAR 50, 2 CTCR 08, 22 ILR 6032 (1995); Wiley, et al v. Colville Confederated Tribes, 2 CCAR 60, 2
CTCR 09, 22 ILR 6059 (1995); Palmer v. Millard, et al, 3 CCAR 27, 2 CTCR 14, 23 ILR 6094 (1996) (Because the
Tribal Court dismissed the case below as a matter of law, we review the matter de novo.); Pouley v. CCT, 4 CCAR
38, 2 CTCR 39, 25 ILR 6024, (1997) (The Appellate Court engages in de novo review of assignments or errors
which involve issues of law); In Re The Welfare of R.S.P.V., 4 CCAR 68, 3 CTCR 07, 26 ILR 6039 (1998).
Both the Trial Court and this Court should first always assess each case for personal and subject matter
jurisdiction. Personal jurisdiction can be consented to or waived by a party at any time. Whereas subject matter
jurisdiction cannot. A challenge to subject matter jurisdiction can be made at any time. Subject matter jurisdiction
goes to the heart of the powers of a court to decide a case. Seymour v. CCT, 6 CCAR 5, 3 CTCR 40 (2001). It is
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within the inherent powers of this Court to review subject matter jurisdiction sua sponte.
ISSUE
Did the Trial Court have subject matter jurisdiction over a dissolution of a marriage when
neither party is an enrolled member of the Tribes?
DISCUSSION
Dissolutions, also referred to as divorces, are statutory in nature. That is, a marriage is recognized as a
contract between the marrying couple and the State or Tribe under whose authority the marriage is granted. As
such, the statute governing the marriage contracts usually governs the dissolutions of the contract. The Tribes’
Domestic Relations Code, Chapter 5, provides for the statutory authority for the Trial Court to perform marriages
and to grant dissolutions of marriage. The Tribes’ Domestic Relations Code does not restrict dissolutions to only
marriages performed under the Code; it allows for dissolutions of any marriage recognized in any jurisdiction. CTC
§ 5-1-101. It just requires one of the parties to be an enrolled member of the Tribes. Id. This restriction goes to
subject matter jurisdiction.
Our Constitution provides that it is the Colville Business Council’s responsibility to set out the jurisdiction
of the Courts of the Tribes by statute. Constitution of the Confederated Tribes of the Colville Reservation
(Constitution), Article VIII, Section 1. It further provides that is the duty of the Courts of the Tribes to interpret and
enforce the laws as adopted by the Tribes. Id. Unless we were to find that the requirement that one party to a
dissolution has to be an enrolled tribal member violated the Constitution or Laws of the Tribes, we are bound to
enforce this requirement. Appellee asserts that the requirement of membership in the Tribes before a dissolution
can be granted violates her due process and equal protection rights. We don’t agree.
At the Initial Hearing on January 21, 2011, Appellee argued that reading the Code as a whole, and in
particular the Domestic Relations Chapter, the Tribes allows non-Indians, including descendants to file other civil
family matter cases in the Tribal Court. She gave as examples the custody sections,
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actions, and child support.

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guardianships,

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paternity

She asserts that to exclude this class of litigants, i.e. non-Indians and descendants,

from dissolutions violates their rights to due process and equal protection, by denying them access to the Tribal
Court.
We have long upheld the rights of litigants to equal protection and due process in our Courts, as guaranteed
by our Tribal Civil Rights Act, CTC § 1-5-2(h). See, Gallaher v. Foster, 6 CCAR 48, 3 CCTR 50 (2002); R.L. and
B.J. v. CCT CFS, 6 CCAR 1, 3 CCTR 39 (2001); and Finley v. CTSC, 8 CCAR 38, 4 CCTR 25 (2006). We cannot
find a violation of either in the circumstances of this case. It is true the Tribes has restricted who may file for
dissolutions in the Tribal Court, but such restriction does not offend due process or equal protection. The tribal
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30
31
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CTC § 5-1-120
CTC § 5-1-160
CTC § 5-1-205
CTC § 5-1-240 et seq

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legislatures have made a decision to limit the sovereignty it wishes to exercise over non-tribal members, no matter
who their families are. It is up to the tribal Council to change this law, not the Courts.
The statute is clear and unambiguous on its face. Statutory construction begins by looking at the statute’s
language, giving words their plain meaning, and proceeding to extrinsic interpretive aids only when the statute
contains unclear or ambiguous language. CTC § 1-1-7(b) (providing that words given plain and generally understood
meaning). The Constitutional responsibility of the tribal legislatures to decide what jurisdiction it wishes the Tribes
to exercise is clear and unambiguous. See Constitution, id.
In the matters of domestic relations, the Tribes has restricted its subject matter jurisdiction over marriages,
both in granting them and dissolving or annulling them, to only cases in which one party is a member of the Tribes.
CTC § 5-1-32 (b) (one of the persons getting married under the Code must be an enrolled Colville tribal member);
and CTC § 5-1-101 (one of the parties to a dissolution or annulment action must be an enrolled Colville tribal
member). There was no subject matter jurisdiction over the dissolution in this case. We so hold.
CONCLUSION
In the recent past we have had to examine Trial Court orders for irregularities brought about because the
Judge did not appear to know or understand basic tenets of the law. See, eg. CCT v. Boyd, 10 CCAR 08, 5 CTCR 21
(2009) (Judge failed to follow statutory laws regarding criminal cases); In Re the Name Change of Sweowat, 10
CCAR 01, 5 CTCR 19 (2009) (Trial Court failed to apply tenets of personal jurisdiction); and Edwards v. Bercier,
10 CCAR 18, 5 CTCR 23 (2009) (irregular method of conducting hearing).
It is our Constitutional duty to review Trial Court hearings and orders for such irregularities. In this case,
however, the consequences go beyond what we are able to correct at this level. Knowledge of when the Court has
both subject matter and personal jurisdiction is basic to every case before the Court. Jurisdiction should be the first
issue addressed in every hearing. There are no findings of fact or conclusions of law on the issue of jurisdiction.

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If

the Trial Court Judge had reviewed the law and the Petition, she would have known at the outset of the case that the
Trial Court did not have subject matter jurisdiction.
The unfortunate consequence in this case is that one party, relying on the Order of the Trial Court, entered
into another marriage. We cannot fix this; we can only recognize that the error lies solely with the Judge who did not
follow the law in granting the dissolution.
We hold the Trial Court did not have subject matter jurisdiction to grant a dissolution in this case, and the
Order dated November 4, 2010.
Based on the foregoing, now, therefore
It is ORDERED that the Trial Court’s Order dated November 4, 2010 is VACATED and this matter is
REMANDED to the Trial Court for an Order Dismissing the case for lack of subject matter jurisdiction.

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It is further noted that there are no findings or orders regarding the children of the marriage, no orders regarding the parties’ property and
debts, and no Decree issued as required by the statute, too. CTC § 5-1-105.

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Dorothy CAMARENA, Appellant,
vs.
Leah JACKSON & Joseph REDTHUNDER, Appellees.
Case No. AP10-007, 5 CTCR 30
10 CCAR 40
[Appellant appeared pro se.
Appellees appeared pro se.
Trial Court Case Number CV-CU-2009-29294]

Hearing held October 15, 2010. Decided December 2, 2010.
Before Justice Dennis L. Nelson, Justice Conrad Pascal and Presiding Justice Theresa M. Pouley

This matter came before the Court of Appeals (COA) pursuant to an Initial Hearing held on October 15,
2010. Appellant and Appellees all appeared personally and without representation. Before Justice Dennis Nelson,
Justice Conrad Pascal and Presiding Justice Theresa M. Pouley.
Pouley, J.
SUMMARY
This matter comes before the COA from a custody action before the Trial Court. Appellant, Dorothy
Camarena, is the mother of Joseph Redthunder, appellee, and the grandmother of the three minors in this action.
Joseph Redthunder and Leah Jackson, appellees, are the parents of the minors and are currently living
off-reservation. Ms. Camarena, Mr. Redthunder and the minors are all enrolled Colville tribal members. Ms. Jackson
is an enrolled Nez Perce tribal member.
In November 2009, Appellant filed a petition for custody of her grandchildren. She was granted temporary
custody of the three children in December 2009. In March 2010, the Trial Court continued the temporary custody of
the minor children with the grandmother and allowed the appointment of a GAL if the parties posted a $600 fee
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($200 each for Ms. Camarena, Ms. Jackson and Mr. Redthunder) . The Trial Court also granted the grandmother
the minors’ per capitas and one-half of their 181-D monies. At the hearing on June 2, 2010, the Trial Court ordered a
home study to be done on Ms. Jackson. The home study was submitted to the Court on June 15, 2010 and included
both parents in their Spokane home. Ms. Camarena had submitted a home study completed on her. At the June 30,
2010 hearing, after hearing testimony and reviewing the record, the Court awarded permanent custody back with the
parents, with the grandmother receiving weekend visitation to transition the children back with their parents. The
Court further awarded the minors’ per capitas and one-half of the 181-D monies to the parents. Appellant timely filed
her appeal alleging misconduct.

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There is no record that the money was posted and a GAL appointed.

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DISCUSSION
At the Initial Hearing the Appellate Panel shall decide (1) whether the facts and/or laws as presented
warrant a limited appeal on issues of law and/or of fact; (2) whether a new trial should be granted; or (3) whether the
appeal should be denied or dismissed. After a lengthy discussion with the parties and a review of the record, the
Appellate Panel finds insufficient grounds to go forward with this appeal on the basis that the Appellant has failed to
state a claim for which relief can be granted.
The COA is aware that when parties represent themselves in court, they may not have sufficient legal
experience to easily maneuver through the morass that is the court system. However, the COA still has an obligation
to make sure that the cases that come before it have a valid reason for being there. A person who disagrees with a
decision must show that an error has been made and that the COA can grant relief because of that error. The party
must also make sure that he/she has exhausted all remedies at the trial court before petitioning the COA to hear
his/her appeal, i.e. that the case is ripe for appeal.
In the instant case, Appellant alleges that (1) she has had no contact with her grandchildren since the June
30, 2010 hearing; (2) the appellees changed their contact phone numbers and have not supplied the numbers to her;
(3) a house key for her residence was to have been surrendered to her and it has not been; (4) the order directed her
to relinquish her child restraint seat to the appellees, even though it was her own personal property; (5) she was not
given tax exemptions for the children in lieu of her receiving their per capitas and 181-D monies; (6) the Court did
not seriously consider her mental health concerns about both appellees and she was not allowed to review the
evaluations submitted to the Court; and (7) concerns that the home study that was done was done off-reservation and
did not take into account the appellees prior residence which was where the children were initially removed from.
When the COA asked about the relief that Appellant was seeking, she did not offer sufficient information as
to exactly what she wanted and/or how the COA could remedy the trial court’s decision. She stated several times that
even if the COA found that the trial court erred, Appellant stated she was not seeking a different outcome. She only
wants what was ordered to be enforced.
[1] It is clear that Appellant wants to have visitation with her grandchildren. This was ordered by the Court,
but due to a lack of contact information, she has been unable to arrange visitation. She also alleges that the appellees
have spoken against her to the children and the children have allegedly stated that they do not wish to have visitation
with their grandmother. Appellant stated that she has not moved the trial court for enforcement of the visitation
order. Appellant appears to feel that the trial court did not “listen” to her then and would not listen to her now. She
also appears to be unfamiliar with how to accomplish enforcement of a court order. Enforcement of trial court orders
are more properly before the court in which the orders have been issued and not before the COA.
[2] Appellant wants to have phone numbers for the parents so that she can contact them to arrange for
visitation. This wasn’t in the Order. This is an issue that properly should be addressed at the trial court. Appellant
has admitted that she has not sought help from the trial court in addressing enforcement of its decision. The COA
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cannot make a ruling on any issue that has not been fully litigated at the trial court .
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Court of Appeals Court Rule 5.c states that the COA will not entertain issues on appeal that have not been fully developed and ruled on by
the Trial Court. We hold that the issue of Appellant’s indigency has not been properly developed at the Trial Court and we will not rule on it.
Gorr/Stensgar v. CCT, 6 CCAR 39, 3 CTCR 47, 29 ILR 6073 (06-28-2002). The Court of Appeals grants the Motion to Dismiss on the grounds
that the issue in this matter has not been fully developed and argued before the Juvenile Court. Jerry v. CFS, 7 CCAR 01, 4 CTCR 01, 30 ILR
6159 (01-15-2003).

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[3] Appellant wants her house key returned. Again, this issue was not addressed in any Order nor did it
appear to have been raised in any motion or petition to the trial court.
[4] The next issue is the child restraint seats. Appellant alleges they were ordered to be surrendered to the
appellees, but Appellant asserts that the seats are her own personal property. Appellant stated that she thought it was
improper for the Court to order surrender of property to someone else that was properly hers. However a review of
the June 30, 2010 order shows that the child restraint seats were not ordered to be surrendered to the Appellees. In
fact, they were addressed in a prior order, the March 2010 order. That Order stated that in the best interests and
safety of the children, the grandmother was to allow the seats to be used for visitation transport, if needed. The seats
were to then be returned to the grandmother, along with the minors, at the conclusion of the visitation.
[5] Appellant wants some compensation for the time she had custody of her grandchildren. This issue was
not included in the Order. Appellant included this request for compensation in her original petition, filed November
16, 2009. She was granted the per capita and half of the 181-D monies, but apparently did not receive any funds
during the time she had her grandchildren (no per capita was given in December, but the 181-D money was
distributed in April). The issue of the Spring 2010 181-D monies would be more appropriately handled at the trial
court.
[6] Appellant wants the Court to extend mental health treatment to the appellees because of her concern
about their alcohol abuse and prior suicide attempts. She feels that the trial court did not seriously address the mental
health and alcohol concerns that she has. However, evaluations were ordered for the parents and they were partially
completed. Appellant was not allowed to review the evaluations (possible privacy concerns by the trial court). The
Court reviewed the evaluations and determined that disclosure to the Appellant was not necessary. The trial court
was satisfied that there existed no cause to order treatment of either parent.
[7] Appellant voiced her concern that the Colville Tribe funded a home study on a non-Colville Indian off
the reservation. Appellant also feels that the home study was not properly done. The study was done on the
appellees’ new residence, not on the residence where the children were removed from in November 2009. Appellant
appears to rely on a police report made by the Spokane Police/Spokane County Sheriff on an incident that happened
on 11-23-2008. The report noted that the home appeared to be filthy and disgusting. No action was taken by the
Police, however, and the matter dropped. A subsequent home evaluation reported no subsequent issues with
cleanliness. The trial court has discretion to use home studies to ensure the best interests and safety of children
appearing before it. It would seem more logical to have a Colville Tribal case worker do a home study on Colville
tribal children, even off reservation, rather than have a potential non-tribal entity try to do the same evaluation. If it is
the question of funding, that would be more properly brought before the administrative powers rather than the
judiciary.
CONCLUSION
The COA recognizes that this was a family in need of assistance. The grandmother had some very real
concerns about the care and safety of her grandchildren. She asked the court system to intercede and it did. The trial
court removed the children and put the parents on notice that they needed to address some issues before the children
would be returned to them. The parents appeared to have adequately addressed those issues and the trial court
returned the children to them. However, the grandmother does not feel confident that those issues were adequately
addressed and resolved. The COA reviews the actions and decisions of the trial court and determines if the trial court

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made any mistakes in interpreting the law as applied to the facts of the case . Unless there is a clear abuse of
discretion, this Court will not overturn a decision of the Trial Court. A review for abuse of discretion violation
requires that the Court of Appeals must find the Trial Court’s actions were manifestly unreasonable, exercised on
untenable grounds, or for untenable reasons. Jack v. CCT, 6 CCAR 11, 3 CTCR 41 (02-14-2002). The COA does not
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take testimony nor issue rulings just because it may not agree with the decision of the trial court . Appellant needs
to exhaust her remedies at the trial court. The issues discussed are not ripe for appeal at this time. In the interests of
judicial economy, the COA is remanding this case back to the trial court for action so that the issues raised may be
properly litigated and decided in the forum which is more appropriate to resolve these issues.
Based on the foregoing, it is Ordered that:
1. This case is dismissed as being not ripe for appeal;
2. The COA will not review the oral record of the June 30, 2010 hearing; and
3. This case is remanded to the Trial Court for action consistent with this Order.

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This appellate court can only consider those matters in the record from the Trial Court in determining whether the Trial Court judge abused
his discretion. CCT Credit v. Gua, 5 CCAR 23, 3 CTCR 23 (07-01-1999).
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We cannot substitute what we

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Aconfederated_colville%3Acf2b1f88aa27ba9d. Public record. Not legal advice.